Namana Venkata Siva Narayana vs Namana Seetharavamma and Others

M. Seetharama Murti, J.�This Criminal Revision Case under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ''the CrPC'') by the petitioner/PW2, who is the Son of the deceased, is directed against the judgment of acquittal dated 05.02.2008 passed by the learned V Additional Sessions Judge (Judge, Fast Track Court), Guntur in S.C. No. 329/2007.

The Sub-Divisional Police Officer, Bapatla laid a charge sheet against the accused 1 to 4 before the learned II Additional Munsif Magistrate, Bapatla in a case in Crime No. 43/2005 of Bapatla Taluk Police Station for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, ''the IPC''). The learned Magistrate having taken the case on file as P.R.C. No. 14/2006 had committed the case to the Court of Session, Sessions Division, Guntur as the offences are exclusively triable by the Court of Session. The case was made over to the Additional Sessions Court. The charge under Section 302 read with 34 of the IPC was framed against the accused 1 to 4 and they were tried before the Additional Sessions Court for the said offences. Before the trial Court, PWs 1 to 13 were examined and exhibits P1 to P13 were marked. On merits, the trial Court found the accused not guilty of the offence with which they are charged and acquitted them under Section 235(1) of the CrPC. The aggrieved PW2, who is the Son of the deceased, therefore, had preferred this Criminal Revision Case.

I have heard the submissions of the learned counsel for the petitioner/PW2, the learned counsel for the accused/respondents 1 to 4 and the learned Additional Public Prosecutor representing the 5th respondent/State. I have carefully perused the material record.

At the time of hearing, the learned counsel for the petitioner/PW2 had contended as follows:--''The learned Judge of the trial court had erroneously acquitted the accused by not considering the material evidence, which had sufficiently brought home the guilt of the accused. The learned Judge ought to have seen that the prosecution case is consistent and there is no scope for extending a benefit of doubt. The defence is that the deceased had attempted to immolate herself to file a false case against the accused. Such a defence is against normal course of human conduct. The learned Judge ought to have seen that no woman would immolate herself to implicate any person as an accused. The learned Judge of the trial court had erred in holding that some of the accused are not at the place of the occurrence and were, elsewhere though the said defence was not proved. The findings of the learned Judge of the trial court that the deceased might have been tutored to give a false dying declaration have no basis in the evidence. Merely because A1 is 82 year old and is unable to walk, it is not correct to conclude that she might not have committed the offence along with the other accused. The learned Judge considered the case of prosecution with an initial sense of distrust and therefore, acquitted the accused without properly assessing the prosecution evidence.''

On the other hand, the learned counsel for the accused/respondents 1 to 4 would contend as follows: ''A2 had lodged a report first with the police against PW1 and his sons when they had obstructed for ploughing the land. On his report, the police went to the house of PW1 and the deceased to make inquiries and that at that time, the deceased was alone present at the house. She was emotionally upset as the police have visited their house. The conduct and behaviour of the deceased at the time when PW5, the police constable, visited her house would show that she is a lady of uncontrollable emotions. And, for the reason that the police had visited their house on the report of the A2 and for other reasons best known to the family of the deceased, she had committed suicide. She did not commit suicide to implicate the accused, but, taking advantage of the serious enmity between the families of A2 and PW1 a false case was foisted by roping in all the family members including the mother of PW1, A1, who was aged 82 years at the relevant time. The evidence on record would clinchingly show that A3 and A4 were not at all in the village, Kondabhotlapalem, on the date of the occurrence. It was impossible for a woman like A1, aged 82 years, to indulge in an appalling act of setting fire to her own daughter-in-law. Therefore, in the absence of any direct or corroborative evidence, it is highly unsafe to convict the accused by placing reliance on a dying declaration, which was given by the deceased on account of tutoring by her family members. The trial Court had rightly extended a benefit of doubt to all the accused. There is no merit in any one of the contentions of the petitioner/PW2. The well considered judgment of the trial court does not call for any interference.''

The learned Additional Public Prosecutor had submitted that the 5th respondent/State has not preferred any appeal.

Now the points for determination in this Criminal Revision Case are:

"(1) Whether the judgment of acquittal passed by the learned Additional Sessions Judge against the accused 1 to 4 is unsustainable under facts and in law as contended by the petitioner (PW2)?

(2) Whether the prosecution could bring home the guilt of the accused 1 to 4/respondents 1 to 4 beyond reasonable doubt for the offence punishable under Section 302 read with 34 of the IPC?"

POINTS:

(a) The relationship which is relevant and the gravemen of the charge are as follows:--''The deceased is the wife of PW1. A1 is the mother of A2 and PW1. A3 and A4 are the Sons of A2. PWs 2 and 3 are the sons of PW1 and the deceased. On the intervening night of 16/17.07.2005 at about 2.30 hours A1 to A4 went to the residential house at Kondabhotlapalem village of the deceased, Namala Sreelakshmi @ Sreenu, w/o Prasadarao (PW1) and had knocked on the doors of the said house. When the deceased had opened the doors of the house, the accused had shut her mouth and poured kerosene on her and lighted fire with a match stick and set her on fire and thus intentionally and/or knowingly committed the murder and had caused the death of the deceased due to property disputes and thereby committed an offence punishable under Section 302 read with Section 34 of the IPC.''

(b) The evidence of the prosecution adduced before the trial Court to bring home the guilt of the accused for the charge is as under: ''PW1 is the Son of A1 and the younger brother of A2. The parents of PW1 and A2 executed a Will bequeathing the properties to their children. PW1 came to know about the Will three months prior to the death of his wife Jayalakshmi (the deceased). About five years back, A2 gave 1 1/2 acres of Mudikatta land to PW1 for cultivation and PW1 is cultivating the same. On seeing the Will, PW1 came to know that the above said piece of land was bequeathed to A1 and that as per the Will he (PW1) was allotted land by the side of the railway track in an extent of 1 1/2 acres. Hence, PW1 had asked A2 to handover his land to him. But, A2 had refused to do so. While so, when A2 was getting the said land ploughed, PW1 had raised an objection. Therefore, a quarrel had ensued. On that A2 gave a complaint to the police against PW1 and his sons. PW1 had got issued a lawyer''s notice to A1 regarding the house and the house site. Police came for inquiry to the house of PW1. But, at that time PW1 and others were not present as they went to Chilakaluripet to consult an advocate. The deceased, who is the wife of PW1, was alone at the house. On 17.07.2005 at about 3.00 AM, PW1 had received a phone call from his elder Son by name Namana Sivannarayana (PW2) that his wife (the deceased) had sustained burn injuries. Then PW1 went to Bapatla Government Hospital and had found his wife with burn injuries in the said Hospital. By the time he went to the Hospital, the M.R.O had already recorded the dying declaration of his wife. He made enquiries with his wife. She had informed him that while she was sleeping alone in the house, the accused came and knocked on the door and that when she had opened the door, her mouth was gagged and the accused had poured kerosene on her and set her afire and went away and that then she had asked the neighbours to inform her Son about the incident by phone.'' Thus, according to the version of PW1, due to the property disputes all the accused had committed the offence and that he was also present at the time of inquest. PW2 is the Son of the deceased and PW1. His evidence is to the following effect: ''He came over to his village Kondubatlavaripalem on leave. There are property disputes between his family and the accused. He and his father had objected for A2 ploughing the land and had asked him to hand over the land, in accordance with the terms of the Will. And a quarrel had ensued; A2 gave a complaint to the police. Due to fear of police, they had absconded from the house. He (PW2) went to the house of his friend at Railway pet, Bapatla. On 17.07.2005, at about 03:00 AM, he had received a telephone call from one Cherukuri Srinivasa Rao (LW4) saying that his mother was burning in his house. By the time he (PW2) came to the spot along with his friend, he had found his mother lying on the ground with burn injuries. On enquiry, his mother told that A1 to A4 had set fire to her by pouring kerosene. He had shifted her to the Government Hospital, Bapatla. He had informed his father on telephone about the incident. His mother died subsequently.'' PW3 is also the Son of the deceased and PW1. He is the brother of PW2. He had testified to the following effect. ''He is a student. On 16.07.2005, he (PW3) went to the house of a known person. In the early hours of next day morning at about 3.30 AM, he was informed that the deceased was admitted in Government Hospital, Bapatla with burns. He had rushed to the hospital and had found his mother with burn injuries. On his enquiry, his mother told him that A1 to A4 knocked the door and that when she had opened the door, A1 to A4 had poured kerosene on her and set her on fire after gagging her mouth. He came to know that the M.R.O had recorded the statement of his mother. He was present at the time of the inquest.'' PW4, a teacher by name N. Ravi, had deposed as follows:--''While on leave, he came to his village. On 16.07.2005, the police of Bapatla Taluk Police Station came to the house of PW1. When he had enquired with the police, they had informed that A2 gave a report against PW1 and that PW1 was summoned by the SI of police to the police station. At that time A1 asked him not to interfere with the family affairs. On that day, while he was sleeping at about 03:00 AM somebody knocked on his door and when he had opened the door, K. Srinivasa Rao (LW8) had told him that the deceased was being burnt. He had rushed to the house of the deceased and found the deceased lying on the ground in front of the house. On his enquiry she had told him that A2 and others had set fire to her. He had telephoned to PW2 on the instructions of the deceased. PW2 came to the spot, and had shifted the deceased to the hospital in an auto. PW5 is a Head constable; and he testified that on 16.07.2005 at 11:00 AM as per the directions of the Sub-Inspector, he had proceeded to the house of PW1 for enquiry on the report given by A2 in regard to the property dispute and that at that time, he found the deceased who was alone present at that house and that he had informed her about the complaint of A2 and that on such information she went inside the house and brought some old documents and had thrown the same and on that he had returned the documents to her and went away. The evidence adverted to above is the evidence spoken to by the above witnesses (PWs1to 5) in the respective examinations-in-chief. PW6 is the photographer. PW7 is the Panchayat Secretary who had acted as an inquest panch at the time of inquest held on the dead body of the deceased. In his evidence, exhibit P3-inquest report was exhibited. He had also acted as a panch witness at the time of observation of the scene of offence at 05:00 PM on the same day and in his evidence, exhibit P4-the scene of offence observation report was also exhibited. PW8 is the MRO, Bapatla. On the requisition received from the Government Hospital, Bapatla, he went to the hospital on 17.07.2005 and had recorded the statement of the deceased. In his evidence, exhibit P5-the Dying Declaration of the deceased was exhibited. Exhibit P6 is the intimation given to him. PW9 is the Civil Assistant Surgeon who had conducted autopsy on the dead body of the deceased and gave an opinion that the deceased died of shock due to extensive burns. PW10 is another Doctor who had certified about the condition of the deceased at the time when her statement was recorded by the MRO. He had exhibited exhibit P8-the endorsement on exhibit P5/dying declaration of the deceased. PW11 is the police officer who had registered the crime and had issued exhibit P12/FIR based on exhibit P11 death intimation and had partly conducted investigation in the matter. PW12 is the successor investigating officer. PW13 is the Sub Divisional Police Officer, Bapatla who had taken up further investigation from PW12 and had filed the charge sheet.

The deceased died due to burn injuries is not disputed. The evidence on record is also sufficient to safely conclude that the deceased died due to burns. In view of the evidence of the prosecution on record, which was adverted to supra, it is undisputed that there are no eyewitnesses to the incident. Therefore, the prosecution case rests on circumstantial evidence and on exhibit P5/the dying declaration of the deceased recorded by PW8, the MRO. According to the case of the prosecution and the evidence on record, after the deceased was admitted in Government Hospital, Anantapur with burn injuries, PW8 had recorded her dying declaration in the presence of medical officer (PW10) who had certified that the deceased was conscious at the time of recording of the dying declaration.

The prosecution, in the absence of any direct witnesses to the incident, relies upon the dying declaration of the deceased to show that A1 to A4 poured kerosene on the deceased and set her afire due to property disputes and that the accused are the culprits responsible for the murder of the deceased. The ex-facie examination of exhibit P5/dying declaration would show that PW10, the Medical Officer, had endorsed on exhibit P5 that the deceased was conscious and coherent while recording the Statement/the dying declaration. Further, it would show that the Executive Magistrate after putting the preliminary questions had satisfied himself that the deceased was in a fit state of mind to give the statement and had then recorded her statement. Now, in the facts and circumstances of the case, the crucial question is as to whether the dying declaration is sufficient to base a conviction and record a finding of guilt against the accused.

I have carefully read the exhibit P5/dying declaration in entirety. Since this Court is dealing with a case where the request is for the reversal of the acquittal judgment of the Trial Court, it is necessary to first refer to the reformulated principles laid down by the Supreme Court in Ganpat Vs. State of Haryana and Others, which are as under:

"(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court''s conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."

Further, in Shyamal Saha and Another Vs. State of West Bengal, the Supreme Court had referred to Ganpat Vs. State of Haryana and Others, and observed that it is the obligation of the High Court to consider and identify the error in the decision of the trial court and then decide whether the error is gross enough to warrant interference and that the High Court is not expected merely to substitute its opinion for that of the trial court because it has power to do so - and that it has to correct an error of law or fact significant enough to necessitate overturning the verdict of the trial court and that the High Court has to exercise its discretion keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). Now, the decision in this revision case has to be made keeping in view the aforementioned precedential guidance. Further, if two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Court must rule in favour of the accused.

On a careful examination of the facts, the circumstances and the evidence including the dying declaration on record, this Court is of the well-considered view that there is no error either on facts or in law, much less a gross or significant error warranting interference and necessitating the over turning of the judgment of the trial court for the following among other reasons.

Firstly: PW2 is the son of PW1 and the deceased. According to him, he among PWs1 to 3 had first received a telephonic information from Cherukuri Srinivasa Rao (LW4) saying that his mother was burning in his house. His testimony in his own words as recorded by the Court below is as follows: "Next day early hours, i.e., on 17.07.2005, at about 03:00 AM I received a Telephone from LW4, Cherukuri Srinivasa Rao, to my cell number 9849609926, my mother was burning in our house." This Cherukuri Srinivasa Rao (LW4), who obviously had the first opportunity of seeing the deceased in flames, was not examined. However, PW4, by name, Namna Ravi, had stated that the deceased told him to telephone to her son stating that the phone number is available on CD player cover and on that he had telephoned to her elder son (PW2) through his cell phone. According to this witness, even before he was so asked by the deceased to inform her son, the deceased had informed him that A2 and others had set fire to her. However, he did not depose that he had informed PW2 on telephone that A2 and others had set fire to his mother. Thus, in the evidence, there is an inconsistency as to who had informed PW2 about the incident involving his mother and therefore, there is no reliable evidence as to the source of information through which PW2 came to know about the incident. Further, PW2 did not state that PW4 informed him on telephone about the fire incident in which his mother was involved. He did not also say that he was informed on telephone that A1 to A4 are responsible for the said incident. Though PW4 had stated in his evidence that he had applied for leave and came to the village on that day, it was brought out in the evidence of PW11, the Investigating Officer that PW4 did not state in his statement that he had applied for leave and came to the village on that day. PW4 according to the defence version belongs to the opposite faction party. In his cross examination, he had admitted that he was figured as an accused in three or four cases. Therefore, the evidence of PW4 even in regard to the circumstances is unreliable.

Secondly: As per the version of PW4, somebody knocked his door at about 3 AM on the night of the incident and that when he had opened the door, he was informed by K. Srinivasa Rao (LW8) that the deceased was being burnt and on that he had rushed to her house and that by then, she was lying on the ground in front of the house of LW4-Cherukuri Srinivasa Rao. This listed witness K. Srinivasa Rao (LW8), who had got prior information about the incident than PW4 was not examined by the prosecution. Thus, LW4, Cherukuri Srinivasa Rao, and LW8, K. Srinivasa Rao, and others who had gathered by the time PW4 went to see the deceased are important independent witnesses, who had the first opportunity to see the deceased in flames. Neither the said LWs4 and 8 nor any other witness who all had an opportunity to first attend on the deceased while she was in flames and interact with her immediately thereafter were examined. Even PW1, who had received a phone call from PW2 and was informed by PW2 that his wife had sustained burn injuries, did not state that he was informed by his Son (PW2) that the accused are responsible for the incident. In fact, in the evidence of PW11, the Investigating Officer, it was elicited that LW4-Cherukuri Srinivasa Rao is a direct witness and his house is exactly opposite to the house of the deceased. But as already noted, this witness though cited was not examined.

Thirdly: PW2 having come to the scene had shifted the deceased to the hospital. He was present with his mother, the deceased, before recording the dying declaration is therefore, borne out by the record. Even PW8, the MRO, who had recorded the dying declaration had also stated in his evidence that by the time he went to the Government Hospital, some interested persons were by the side of the injured and that he had sent them away by stating that he has to record the statement.

Fourthly: It is borne out by the evidence on record that on account of a property dispute, A2 had already lodged a report, a few days prior to the incident with the police concerned and on that a police constable went to the house of PW1 on the morning of that day i.e., 16.07.2005 and that by that time all the male members of the family of PW1 left the house for fear of police or for some other reason. Therefore, the deceased was alone at the house. The police Constable (PW5) who went to the house of the deceased, when she was alone at the house, had informed her about the complaint lodged by A2. Then, according to PW5, the deceased went inside the house and brought some documents and had thrown away the said documents and that on that he had collected and returned the same to her and went away. In the cross examination of PW5, it was elicited that when he had approached the deceased and had enquired with her about the whereabouts of PW1 and her son, she had emotionally went inside and brought some documents and threw them on his face and that she had kicked the doors, went inside and came out and stood in front of the police jeep and that on that he had requested with folded hands that he came to her house only to inform about the complaint and requested her to give way to his jeep. Thus, from her above behaviour and conduct, it is obvious that she is a woman of uncontrollable emotions and that she was highly agitated on that day on account of the police report given against PW1, her husband, and is annoyed and upset.

Fifthly: It is the defence of the accused that the deceased had committed suicide and a false case was foisted against the accused at the instance of PW2, the son of the deceased, due to bitter enmity with the accused. PW11 had deposed that his first investigation revealed that the incident is a suicide and not a homicide. It is the version of the deceased that after the accused knocked on the door of her house and when she had opened the doors of the house, they had gagged her mouth. However, it was also elicited from PW11 that he did not find any burnt cloth or other cloths in the mouth of the deceased. He had also stated that the injured/deceased did not name anybody immediately after the occurrence when several neighbours gathered there. Further, PW12, the successor investigating officer, had also testified that he had concluded and recorded in his CD that the deceased might have intentionally poured kerosene and set herself afire with a view to escape with little burns and make the rivals the scapegoat but, she had sustained excessive burns of 90% resulting in her death.

Sixthly: It is the defence that A3 and A4 were not present in the village on the day of the occurrence and that they were elsewhere. In the cross examination of the prosecution witnesses, it was elicited by the defence that A3 and A4 were present elsewhere on the date of alleged offence. It is in the evidence of the prosecution witnesses (PWs1 and 4) that A3 was working in Fisheries Department at Nellore and that A4 was studying engineering course at Chennai during those days. In fact their plea of alibi was also probed by the investigating officer-PW12. PW12 had testified in his cross-examination that on the plea of alibi, he had made enquiry about A3 and his presence at Nellore on the date of the offence and on the previous day and that he had also examined two persons, namely G. Dayakar Reddy, incharge of A.P. Marine & Agro Product Private Limited, Nellore and Vayugunda Suresh Babu, an employee of the said concern and that they had stated that A3 was present in Nellore on 16.07.2005 and that after staying that night there, they went on a camp on 17.07.2005 at 7.30 AM. PW12 had further testified that he made enquiries with regard to alibi of A2 and had examined Mamillapalli Rama Gopal and Kancherlapalli Rajya Lakshmi and had recorded their statements and that they had stated that they saw A2 on the intervening night of 16/17-07-2005. Therefore, this evidence on record would show that the plea of alibi of A3 and A4 was also probed and that the investigation done had revealed that they were elsewhere on the date of offence. Thus, the evidence on record would sufficiently show that A3 and A4 were elsewhere on the date of incident and they were not present in the village at the time of alleged occurrence.

Seventhly: A1 is the mother of PW1 and A2. She is the mother-in-law of the deceased. She was 82 years of age as on the date of the alleged occurrence. She is an old woman and as could be noted from the evidence of PW11, she is unable to walk. Therefore, the evidence on record would indicate that A1 was unable to walk freely and without support due to her advanced age at the relevant time. The incident had occurred at 02:30 AM i.e., during early hours of a day. If really, A1, who is a woman of 82 years age and who is unable to walk freely, had participated along with the other accused in the alleged crime, in which the deceased was allegedly set on fire at about 02.30 AM, it would not have been possible for all the accused including A1 to escape unnoticed from the scene of offence, more particularly, when according to the prosecution story the deceased rushed out of the house immediately after kerosene was poured and she was set on fire. Therefore, as rightly observed by the Court below, the presence of A1 at the scene of offence is highly improbable and is doubtful.

Eighthly: Thus, the evidence on record sufficiently excludes the presence of A3 and A4 in the village on the date of the occurrence. Further, it is also highly doubtful as to whether A1, because of her advanced age and inability to walk freely on her own, would have indulged in such an appalling offence. Still, in the dying declaration, A3 and A4 who were not present at the scene of offence and A1, who is 82 years old woman, were roped in. Further, a view that the dying declaration by the deceased might have been made only out of tutoring due to enmity between the families appears to be probable. All the circumstances are suggestive that the version in the dying declaration may be false and therefore, a justifiable doubt about the truthful nature of the contents of the dying declaration would arise and it is possible to take a view that the dying declaration is shrouded in suspicion.

To sum up, for all the reasons assigned supra, this Court finds that in the facts and circumstances of the case, the story as narrated by the deceased in the dying declaration is highly doubtful and hence, it is unsafe to base a conviction on such a dying declaration in the absence of any corroborative evidence. Further, when on appreciation of the facts and the evidence, two views are possible, this Court shall not substitute its view for that of the trial court provided the view taken by the trial Court, which is favourable to the accused is plausible and possible. The points are accordingly answered against the petitioner.

Thus looking at the matter from the point of view of the facts, the evidence and the circumstances, this Court finds that the trial court was justified in not relying on the dying declaration and in extending a reasonable benefit of doubt to the accused and recording a finding of acquittal in their favour.

Viewed thus, this court finds that there is no merit in the revision case and the Criminal Revision Case is liable to be dismissed.

Accordingly, the Criminal Revision Case is dismissed. Miscellaneous petitions pending, if any, in this Criminal Revision Case shall stand closed.