innocuous omission amounting to contradiction - contradictory dying declarations - acquittal is correct = innocuous omission amounting to contradiction = It is well settled that an innocuous omission is inconsequential omission amounting to contradiction that militate against the meat or core of the prosecution case are alone material. - The statement made by the deceased to P.W.1, that the accused poured kerosene and set fire to her is clearly an improvement, which has not been stated by him when he was examined under Section 161(3) Cr.P.C. This omission cannot be brushed aside as insignificant. In view of that, no reliance can be placed on the evidence of P.W.1 to show that he is the eye witness to the incident.- When he questioned her sister, she stated that the accused suspected her character and poured kerosene and set fire to her. This aspect of the case has not been stated to police when he was examined by the police. Therefore, his statement that the accused poured kerosene and set fire to his sister is an improvement and that improvement cannot be brushed aside because it is an omission, which amounts to contradiction. Therefore, no reliance can be placed on the evidence of P.W.2. ; Contradictory dying declarations one is by constable another by JFCM - The other evidence, which remains on record, is the evidence of P.W.10, who recorded Ex.P4-statement of the deceased. No doubt, Ex.P4 would go to show that accused is the person, who poured kerosene and set fire to her. - Similarly, the deceased also gave dying declaration as in Ex.D6, which is recorded by D.W.1 (Judicial First Class Magistrate, Nellore). The deceased has categorically stated that she set fire to herself with a match stick. Therefore, the dying declaration recorded by P.W.10 and the dying declaration recorded by D.W.1 are contradictory to each other. If there are more than one dying declaration, they should be consistent particularly in material particulars. Where there was no such consistency and one dying declaration indicates that the incident was a suicide and other points a case of homicidal in nature, it is not possible to have a conviction basing on the dying declaration which is favourable to prosecution. If the dying declaration recorded by Judicial First Class Magistrate, Nellore is to be accepted, it is a clear case of suicide. When two views are reasonably possible in the evidence adduced by prosecution, the view in favour of accused should be adopted. Therefore, for that reason, the trial Court has given the benefit of doubt to the accused. In view of these contradictory dying declarations, it is not safe to place implicit reliance on Ex.P4, which is recorded by P.W.10 in the first instance. Hence, the trial Court rightly acquitted the accused and the said order needs no interference of this Court as there are no compelling and circumstantial reasons to interfere with the same. The Appeal is devoid of merits.

CRLA 614 / 2013

CRLASR 24138 / 2008

PETITIONER RESPONDENT THE STATE OF A.P., REP BY PP.,   VS SHAIK KHADER BASHA, PET.ADV. : PUBLIC PROSECUTOR RESP.ADV. :  SUBJECT: U/s.302 I.P.C Acquittal DISTRICT:  NELLORE

http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=614&year=2013

HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL No.614 of 2013

JUDGMENT:- (per Hon’ble Sri Justice K.C. Bhanu)

                             

This Criminal Appeal, under section 378 (3) & (1) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed by the State against the judgment, dated 15.11.2006, in Sessions Case No.30 of 2005 on the file of IV Additional Sessions Judge, Nellore, whereunder and whereby, the accused was acquitted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”).

2.      The brief facts that are necessary for the disposal of the appeal are stated as follows:

          Shaik Madar Bee (hereinafter referred as the ‘deceased’ in this case) was given in marriage to the accused about six months prior to 09.03.2003.  After marriage, the accused was addicted to drink alcohol and used to quarrel with his wife (deceased) suspecting her fidelity.  Unable to bear the harassment, the deceased went to her mother’s house at Golagamudi village on 07.03.2003.  The accused also followed her and they both stayed in the house of the mother of the deceased. 

On 09.03.2003 at about 7:30 p.m., the accused taking advantage of the loneliness of his wife at her mother’s house, picked up a quarrel with her, beat her and threatened her to kill her. Out of fear, the deceased ran towards the fields, but the accused, who determined to put an end to her life, picked up a kerosene tin, chased her and poured kerosene on her body when she was present at the fields of Nalagalla Subbaiah and set fire to her.  As a result, she sustained burn injuries and raised cries.  On hearing the cries, the neighbourers, who are present nearby the scene of occurrence, rushed to the scene of occurrence and on seeing them, the accused ran away.  The persons who rushed to the scene of occurrence extinguished the flames and shifted the deceased to the Government Hospital, Nellore for treatment. 

Basing on the statement of the deceased, a case in Crime No.32 of 2003, for the offence punishable under Section 307 I.P.C was registered by the police of Venkatachala Satram Police Station.  A requisition was given to the Magistrate and he recorded the statement of the deceased.  The deceased succumbed to the burn injuries on 15.03.2003 and then the section of law was altered from Section 307 to 302 I.P.C.  The Inspector of Police-P.W.12 held inquest on the dead body of the deceased.  Then, the body was subjected to postmortem examination.  The doctor, who conducted autopsy on the dead body of the deceased opined that the deceased died as a result of burn injuries.  Thereafter, the accused was arrested and sent to Court for judicial remand.  After completion of investigation, police filed the charge sheet.

3.      The trial Court framed the charge for the offence under Section 302 I.P.C against the accused.  When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.

4.      To substantiate the case of the prosecution, P.Ws.1 to 12 were examined and Exs.P.1 to P.11 were got marked besides the case properties M.Os.1 to 4.

5.      After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses.  He denied the same and got examined D.W.1, who was the then IV Additional Judicial Magistrate of First Class, Nellore and got marked Exs.D1 to D6.

6.      The trial Court upon considering the evidence on record, came to the conclusion that there was inconsistency in the two dying declarations and therefore, it is not safe to place an implicit reliance on the dying declaration recorded by the Head constable and accordingly, acquitted the accused.  

Challenging the same, the State preferred the present appeal.

7.      Now, the points for determination are:

Whether the prosecution proved its case beyond all reasonable doubt for the charge under Section 302 I.P.C against the accused and whether the judgment of the trial Court is correct, legal and proper or not?

8.      POINTS:-   The learned Additional Public Prosecutor appearing for the appellant/State contended that the evidence of P.W.1 and the dying declaration-Ex.P4 would go to show that it is the accused, who poured kerosene and set fire to the deceased and the dying declaration-Ex.P4 recorded by P.W.10 is not shown to be an outcome of tutoring or prompting by any of the relatives of the witnesses and therefore, she prays to set aside the conviction and sentence.

9.      This appeal is filed by the State challenging the order of acquittal.  Ordinarily, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by an order of acquittal.  So, in order to interfere with the order of acquittal, the prosecution must show that there are compelling and substantial reasons for interfering with the same.  If the reasoning given by the trial Court is contrary to the weight of evidence, the Court of appeal would be justified in discarding the same in exercise of its appellate jurisdiction.  The paramount consideration of the Court is to prevent miscarriage of justice.  A miscarriage of justice which may arise from acquittal of guilt is no less than from the conviction of an innocent.  Therefore, now, it has to be seen whether there are any such compelling and substantial reasons for interfering with the order of acquittal.

10.    P.W.1 was projected as the eye witness.  

As per his evidence, he was going towards Brahmamgari Matam near Golagamudi village.  

At that time, he saw the deceased running towards the fields and her husband was following her. 

He followed them and found that in the fields of Subbaiah, the accused poured kerosene on the body of the deceased and set fire to her.  

But in the earliest statement recorded by the police, which is marked as Ex.D2, it is clearly stated that on seeing the flames in the field of Nalagala Subbaiah, he rushed there.  

It is well settled that an innocuous omission is inconsequential omission amounting to contradiction that militate against the meat or core of the prosecution case are alone material.  

An omission would not discredit the evidence of a witness.  

The evidence of a witness will have to be assessed by its intrinsic worth.  

Therefore, this witness as not been telling the whole truth and he cannot be put in the category of wholly reliable.  

The statement made by the deceased to P.W.1, that the accused poured kerosene and set fire to her is clearly an improvement, which has not been stated by him when he was examined under Section 161(3) Cr.P.C. This omission cannot be brushed aside as insignificant.  In view of that, no reliance can be placed on the evidence of P.W.1 to show that he is the eye witness to the incident.

11.    P.W.2 is no other than the elder brother of the deceased is not an eye witness. After hearing the cries of the deceased, he along with some others went to the fields, where the deceased was caught with flames and they immediately shifted her to the Government hospital.  

When he questioned her sister, she stated that the accused suspected her character and poured kerosene and set fire to her.  

This aspect of the case has not been stated to police when he was examined by the police.  

Therefore, his statement that the accused poured kerosene and set fire to his sister is an improvement and that improvement cannot be brushed aside because it is an omission, which amounts to contradiction. Therefore, no reliance can be placed on the evidence of P.W.2.  

Similarly, P.W.3, who is no other than the mother of the deceased did not speak anything about the incident.  

But she stated only that previously, accused pledged the gold ear studs of the deceased and obtained loan.  

Even that aspect has not been stated before the police and Ex.D3 is marked.

12.    P.W.4 is the another brother of the deceased, who came to know about the incident subsequently.  Therefore, he is not an eye witness to the incident. P.W.7, who is one of the inquest mediators is examined to show that he is present when police conducted inquest on the dead body of the deceased.  The inquest mediators opined that the deceased died as a result of burn injuries.  

Though it is incorporated in the inquest report that the deceased died due to the burn injuries sustained by her and those burn injuries were caused by her husband, it cannot be accepted under law as it is hearsay evidence.  

The other evidence, which remains on record, is the evidence of P.W.10, who recorded Ex.P4-statement of the deceased.  

No doubt, Ex.P4 would go to show that accused is the person, who poured kerosene and set fire to her.  

At the same time it has to be scrutinized carefully and cautiously before it can be acted upon under law that the dying declaration is found to be true and trustworthy, made voluntarily and it is not an outcome of tutoring or prompting by the relatives of the deceased, it can be acted upon.  

Similarly, the deceased also gave dying declaration as in Ex.D6, which is recorded by D.W.1 (Judicial First Class Magistrate, Nellore).  

The deceased has categorically stated that she set fire to herself with a match stick.  

Therefore, the dying declaration recorded by P.W.10 and the dying declaration recorded by D.W.1 are contradictory to each other.  

If there are more than one dying declaration, they should be consistent particularly in material particulars.  

Where there was no such consistency and one dying declaration indicates that the incident was a suicide and other points a case of homicidal in nature, it is not possible to have a conviction basing on the dying declaration which is favourable to prosecution.  

If the dying declaration recorded by Judicial First Class Magistrate, Nellore is to be accepted, it is a clear case of suicide.  

When two views are reasonably possible in the evidence adduced by prosecution, the view in favour of accused should be adopted.  

Therefore, for that reason, the trial Court has given the benefit of doubt to the accused. In view of these contradictory dying declarations, it is not safe to place implicit reliance on Ex.P4, which is recorded by P.W.10 in the first instance.  Hence, the trial Court rightly acquitted the accused and the said order needs no interference of this Court as there are no compelling and circumstantial reasons to interfere with the same.  The Appeal is devoid of merits. 

13.    Accordingly, the Criminal Appeal is dismissed at the stage of admission, confirming the judgment, dated 15.11.2006, in Sessions Case No.30 of 2005 on the file of IV Additional Sessions Judge, Nellore.  Miscellaneous petitions, if any, pending in this appeal shall stand closed.

                     ______________________

JUSTICE K.C. BHANU

____________­­­_______________________

JUSTICE CHALLA KODANDA RAM

April 29 2013

SR/PN                                                        

`

                

                 HON'BLE SRI JUSTICE K.C. BHANU

AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL (SR) No.24138 of 2008

April 29, 2013

SR/PN