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Judgment
L. Narasimha Reddy, J.—The sole accused in S.C. No. 1 of 2009 on the file of the Sessions Judge, Guntur, was alleged to have killed his wife on 10.04.2008 by beating her with the base of a vegetable cutter and thereafter, set her on fire by pouring petrol. The deceased was said to have been shifted by the accused and his brother to the Government Hospital at Guntur and there, on a requisition given by the authorities of the hospital, the Magistrate recorded the dying declaration of the deceased. She is said to have stated that when herself and the accused alone were there in the house, the latter received a missed call on his cell phone and when she asked about the particulars of the call, the accused questioned as to why she wants all that. Thereupon, the deceased is said to have commented that the accused is not the only person who is having cell phone, that her brother has four such cell phones and if she wants, she too can acquire a phone. The accused is said to have got enraged on this, taken the vegetable cutter, and hit upon her head with the base thereof. She is said to have fallen down almost unconsciously and one more blow was given in the back and thereafter the accused is said to have poured petrol and put her on fire.
On hearing the cries, the neighbours, including the owner of her house - P.W.-3 are said to have gathered and the accused and his brother are said to have shifted her to hospital. After the statement -Ex. P-6 was recorded from the deceased at the instance of the brother of the deceased P.W.-1, she was shifted initially to N.R.I. hospital at Mangalagiri and thereafter, to the Government Hospital, Vijayawada. The Sub-Inspector of Police, Old Guntur Law a Order Police Station, recorded the statement of the deceased - Ex. P-12 and registered Crime No. 42 of 2008 alleging offence punishable u/s 307 IPC against the accused. The investigation was taken up by P.Ws.12 and 13, and the scene of offence panchnama was conducted.
The deceased died two and half months after the incident, i.e. on 26.10.2008 at 3.15 p.m. Upon this, the provision of law was altered in the FIR. After the death of the deceased, the investigating officer caused the inquest and post mortem and after completion of the investigation, he filed charge sheet. Taking the same into account, the trial Court framed the charge u/s 302 IPC against the accused.
The prosecution examined P.Ws.1 to 14 and filed Exs. P-1 to P-16. The Vegetable cutting knife and the empty petrol tin were marked as M.Os.1 and 2.
Through its judgment, dated 05.10.2009, the trial court found the accused guilty of committing the offence punishable u/s 302 IPC and imposed the punishment of imprisonment of life and a fine of Rs. 500/-. Hence, this appeal.
Sri H. Prahlada Reddy, learned counsel for the accused submits that a false case was foisted against the accused at the instance of P.W.-1, his brother-in-law. He contends that it is the accused himself, who shifted his wife to the hospital on noticing her with serious burn injuries and even while the treatment was in progress, P.W.-1 shifted the deceased to the hospital at Vijayawada. He submits that as per the record there are as many as three dying declarations, but only two of them i.e. Exs. P-6 and P-12 are made part of evidence and the one, which was recorded in between those two has been suppressed. Placing reliance upon the judgment of this Court in Sivagalla Sailu Vs. The State, , learned counsel submits that non-filing of one of the dying declarations is fatal to the case of prosecution. He further submits that the version of the prosecution regarding the motive for the appellant to kill his wife can, not at all be treated as sufficient provocation, for anyone to kill a person, that too, a life partner. Other contentions are also urged.
Learned Public Prosecutor, on the other hand, submits that the deceased was alive for quite a considerable time, after she received the burn injuries and two dying declarations, recorded from her, were made part of the evidence. She contends that the so-called third dying declaration is non-existent and the ratio laid down by this Court in Sivagalla Sailu''s case (supra), does not apply to the facts of this case. She further submits that the mere fact that the appellant has shifted his wife to the hospital, does not condone the crime committed by him.
The machinery of law was set in motion, in the instant case, as soon as the deceased was brought with burn injuries to the Government Hospital at Guntur by her husband - accused. The concerned official of the hospital issued a requisition to P.W.-8, the jurisdictional Magistrate, with a request to arrange for recording the dying declaration. The Magistrate arrived at the hospital at about 12.15 p.m. on 10.04.20008 and recorded Ex. P-6. The text of this dying declaration is thus:
...One missed call came to the cell of my husband. When I questioned to whom that missed call, he stated that what is your interest and relation. Then, I stated to him that are you only having a phone, my elder brother also having 4 phones and I would bring one phone from him. Are you state against my words? So saying he rushed and brought Kathipeeta and hit a heavy blow with it on my head. I lost consciousness and fell down. Then he cut on my back with Kathipeeta. When he cut on my back I have no conscious. While I was in semi-conscious state he suddenly went brought petrol in a petrol can and poured on me. He lit with match stick. When I raised cries my husband and his elder brother brought me to the Hospital. At that time none others were present in the house except myself and my husband. My children went to School. My house owner Nagamani came and put off the flames.
Though the learned counsel for the accused made an effort to discredit Ex. P-6 on the ground that P.W.-8 did not follow the prescribed procedure such as noting the time of completion of the examination, we are not impressed by that. Ex. P-6 accords with the requirements of law and there is no reason to discredit it.
The information about the incident was passed on to P.W.-1 -brother of the deceased, and he is said to have come to the hospital. It is at his instance, that the deceased Was shifted from Government Hospital, Guntur to N.R.I. Hospital, Mangalagiri and from there to Government Hospital, Vijayawada. Till that time, no crime as such was registered. It was only after P.W.-11 recorded the statement of the deceased at the Government General Hospital, Vijayawada, that Crime No. 42 of 2008 was registered, alleging offences punishable u/s 307 against the accused. Notwithstanding the doubt as to why there did not exist any formal complaint, even after passage of such a long time, we are inclined to take Ex. P-12, statement recorded by P.W.-11, as another dying declaration. In text, Ex. P-11 resembles Ex. P-6, except for minor discrepancies or slight improvements. The cause of the death, mentioned by the deceased in both of them is the same, viz., the provocation on account of the observation made in relation to owning of cell phone etc.
If Exs. P-6 and P-11 were to have been the only dying declarations and no other statement was recorded from the deceased, the conclusion arrived at by the trail Court, hardly can be found fault with. If, on the other hand, there existed any other dying declaration, recorded from the deceased, and the same is not made part of record, a different situation altogether emerges.
The dying declarations constitute one of the most important pieces of circumstantial evidence. Even though the person from whom it is recorded is not available for cross examination, law attaches not only significance, but also acceptability to it. The only requirement is that there must be little more corroboration. The reason for such an importance being accorded to dying declarations is that, it presents the version of the victim, who is no more alive and a person virtually fighting with the death, would not be prone to implicate innocent persons or to settle scores with those who are enmically disposed with them. Incidents are not lacking, where the dying declarations were found to be result of tutoring, or the person changing the version. Obviously, for that reason, the law mandates that every dying declaration recorded from the deceased in a criminal case, must be made part of record and withholding of any one of them would have its own impact. Placing reliance upon the judgments of the Supreme Court in The State of Karnataka Vs. Moin Patel and Others, , Harpal Singh Vs. Devinder Singh and another, and quite a good number of judgments rendered by this Court, a Division Bench of this Court in Sivagalla Sailu''s case (supra 1) held that the withholding of one of the many dying declarations is fatal to the case of the prosecution.
In the instant case, there is a clear evidence to establish that in addition to Exs. P-6 and P-11, there existed one more dying declaration. This is evident from Ex. P-11 itself. After narrating the circumstances under which the deceased came to be shifted to the Government Hospital at Vijayawada, she stated as under:
...Meanwhile after coming to know about the incident, my brother in law Sobhanbabu, who is residing in Old Guntur, and my husband took me in an auto to Guntur Govt., Hospital and admitted in Emergency ward for treatment and they went away. Afterwards a Magistrate came and recorded my statement. On coming to know about the incident, my elder brother came to hospital from Vijayawada, and took me in a car from Guntur to Mangalagiri N.R.I. Hospital and from there to Vijayawada and admitted in Govt. Hospital. Here also Magistrate came and asked what had happened and reduced into writing. Later the police of Vijayawada also recorded my statement. When the incident occurred to me myself and my husband only are present in our house. Our two children are went to school. Now you, the S.I. of Police of old Guntur came to me and examined in Govt. Hospital, Vijayawada, I sated what had happened.
The last sentence of this, refers to Ex. P-12 itself. The second sentence in the extracted portion, viz., "Afterwards Magistrate came and recorded my statement, refers to Ex. P-6. What remains unexplained is the one referred to in the underlined sentence wherein the deceased stated "Here also Magistrate came and asked what had happened and reduced into writing." That has not been made part of record. That there existed a third dying declaration, is evident from the deposition of P.W.-11. He stated that as under:
...In her statement the deceased stated that her statement was recorded by a Magistrate at Vijayawada....
From this, it is clear that not only the deceased, but also P.W.-11 stated that the Magistrate at Vijayawada recorded another declaration. Once the dying declaration is said to have been recorded by the Magistrate at Vijayawada, is not made part of record, a serious infirmity creeps into the proceedings and the version of the prosecution gets diluted.
Whatever be the reason for the said dying declaration being not made part of record, a situation emerges where another version cannot be ruled out. This assumes greater significance from the point of view of the allegation made by the accused. In his statement recorded u/s 313 Cr.P.C. he stated that he noticed his wife with burn injuries after he returned from night duty, and it is he who shifted the deceased to the hospital with the help of his brother and from then onwards, P.W.-1 was making every effort to implicate him in the case. The record also discloses that P.W.-1 played an important role in shifting the deceased. In his cross-examination P.W.-11 admitted as under:
It is true, against medical advice, she was shifted to Vijayawada from G.G.H., Guntur. First she was taken to N.R.I. from G.G.H. and from there to Govt. Hospital, Vijayawada....
If this is read in continuation with the portion of Ex. P-11 extracted in the preceding paragraphs, it becomes clear that it is the elder brother of the deceased i.e. P.W.-1, who took her to the Hospital at Vijayawada.
There is also the evidence of an independent witness, namely, P.W.-3, who is the house owner. Even though he turned hostile, he has categorically stated that on the date of incident, the colleague of the deceased by name, N. Kishore came to the house and had a quarrel and after that person has gone away, the deceased went inside the house and closed the door, and in the meanwhile, the accused also arrived. He further stated that they have seen the deceased in flames and immediately she was shifted to hospital.
It is cardinal principle of criminal law that the prosecution must establish the motive for an accused to commit an offence. Though the degrees thereof, may vary from case to case, motive, as such, must exist. Many a time, an event, which is fairly trivial from the point of view of one individual, may turn out to be a provocation enough, to commit a crime; for any other. Notwithstanding this variation, it would not be difficult to discern the minimum levels of such motive.
Howsoever disliking it may be for a husband to be told by a wife that he is not the only person to own a telephone, and that the brother of the wife owns many such phones, it is just cannot be a provocation for committing murder. If a person can be expected to kill his wife just on the basis of such sarcastic observation, one can be sure that he would commit the offence even when no provocation at all exist. Such persons find their rightful place in the category of mavericks. There is not even a suggestion that the accused in this case is a maverick or something of that nature.
If in fact the accused has committed the offence as alleged, the first thing that is expected of him is to flee away from the place, either on seeing others coming there, or before any person arrived. Even according to the deceased it is the accused, with the help of his brother, that took her into an auto rickshaw, admitted her in the hospital. Though P.W.-1 made an attempt to allege acts of harassment to the accused, none of them are spoken to by the deceased herself, when she made the statement either in Ex. P-6 or P-11. There is not even a remote reference to any acts of harassment prior to the incident. Added to that, the prosecution failed to explain as to how the petrol was available in the house at that time. It is not as if the accused and the deceased was residing in a remote village and petrol is stored for minimum use. The incident occurred right in Guntur Town and one just cannot expect the storage of petrol in the residence. Any one, who is in need of petrol, would purchase the same in the petrol bunks, which are available in plenty all over the city. No traces of any match stick or burn injuries on the accused were noticed. If he was the person who set the deceased on fire, that too by pouring petrol, neither the tin would remain intact nor the person. We are of the view that it is not at all safe to rest the findings as to the guilt of the accused, on the circumstances referred to above, and the benefit of doubt must be given to the accused.
In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C. No. 1 of 2009 on the file of the Sessions Judge, Guntur, dated 05.10.2009, against the appellant-accused, are set aside. The appellant-accused shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-accused shall be refunded to him. The miscellaneous petitions filed in this appeal shall also stand dismissed.