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Judgment
S.V. Maruthi, J.—This appeal by the State is against the acquittal of A.1 of the offences punishable under Sections 342 and 302, I.P.C. in S.C. No. 445 of 1990 on the file of the Court of Session, Guntur Division Guntur.
Originally, A.1 along with his father and mother who are A.2 and A.3 were tried under three charges viz., Section 342, I.P.C. direct against A.1, 302, I.P.C. against A.1 and Section 302 read with Section 109, I.P.C. against A.2 and A.3.
The case of the prosecution is that A.1 poured kerosene on the body of the deceased in their house situated in the village Reddigudem on 21-6-1990 at about 10.00 a.m. and set fire to her and escaped by tying the thatti doors of the house with a rope which resulted in extensive burn injuries and death on 8-7-1990 at 11.00 p.m.
The deceased was originally married to one Bure Syda of Bellamkonda four years prior to the date of offence and had a son by name Adamsa. Due to misunderstandings, the deceased left her husband and son prior to the incident and was residing with her mother at Reddigudem. She developed illicit intimacy with A.1 since five months prior to the incident and was staying along with the accused. A.1 was also married and had two children, a son and a daughter. He left his wife and started living with the deceased along with his two children and parents, viz., A.2 and A.3. The parents of the deceased were also staying adjacent to the house of the accused.
Twenty days prior to the date of occurrence, the son of A.1 (through his first wife) committed theft of chappals. The deceased warned him for this. A.1 and his parents taking this as an insult started harassing the deceased and beating indiscriminately. Finally on the date of occurrence, A.1 picked up a quarrel with the deceased at the instigation of his parents A.2 and A.3, on 21-6-1990 at about 10.00 a.m., and poured kerosene on her body and set fire to her. A.1 escaped by closing the thatti door and tying the door with a rope. With the result, the house was burnt into ashes. On hearing the cries of the deceased, the neighbours P.Ws. 2 to 7 rushed to the spot, extinguished the fire and removed the deceased from the house and laid her under a tree.
P.W. 1 the mother of the deceased who was residing in the same village heard about the incident and rushed to the scene of offence and found her daughter with burn injuries and conscious and was in a position to talk. On enquiry, she was informed by the deceased that A. 1 set fire to his house in order to kill her. P.W. 1 proceeded to Rajapalem Police Station situated at a distance of five kilometers informed the police. P.W. 16 the S.I. of Police after making a G. D. entry proceeded to Reddigudem along with P.W. 1 and two constables. He found the deceased lying under a neem tree. He found her conscious and talking. P.W. 16 recorded her statement Ex.P. 14 and obtained thumb impression of the deceased. He registered the case as Cr. No. 49/90 u/s 49/90 u/s 307 and 436, I.P.C. P.W. 16 sent the deceased to the Government Hospital, Sattenapalli. He also got prepared observation report Ex.P. 7 in the presence of mediaters P.Ws. 8 and 9. He seized the burnt hallow bamboo sticks M.O. 1 and empty kerosene tin M.O. 2 and other burnt articles. He examined P.Ws. 1 to 7 and recorded their statements u/s 161, Cr.P.C. The statement of the deceased u/s 161, Cr.P.C. was also recorded.
P.W. 12 the Civil Asst. Surgeon Government Hospital, Sattenapalli examined the deceased brought by the police and after preliminary treatment sent her to Government Hospital, Guntur at 1.15 p.m. for expert treatment. She recorded the cause for the burn injuries in the accident register Ex.P. 25.
P.W. 11 the Casualty Medical Officer, Government General Hospital, Guntur examined the deceased at 3.30 p.m. and found she was coherent, conscious and sustained burn injuries. She admitted the victim in the casualty ward and after giving treatment sent intimation to the Munsif Magistrate, Guntur for recording dying declaration and also sent intimation to police simultaneously. The Munsif Magistrate recorded the dying declaration Ex.P. 10 after observing the formalities. He took the thumb impression of the deceased on Ex.P. 10, P.W. 11 the Medical Officer appended her certificate Ex.P. 11 to the dying declaration.
On 2-7-1990, P.W. 1 the mother of the deceased brought back the deceased to her house on the ground that the doctors are not giving proper treatment. On 5-7-1990 the S.I. of Police, Rajapalem visited the village on information that the deceased came to Reddigudem and on enquiry he was told they came back to the village as no proper medical treatment was given. In Ex.P. 10, the dying declaration, the name of A.1 was written as Veeravalli instead of Meeravalli. In order to get a clarification he recorded the statement of the deceased under Ex.P. 17. On 8-7-1990 at 11.00 p.m. the deceased succumbed to the extensive burn injuries. On information by P.W. 1, P.W. 17, the S.I. of Police Rajapalem altered the Sections to 342, 323, 302 read with Section 34, I.P.C., from Sections 307 and 436, I.P.C. and issued express F.I.Rs to all concerned.
P.W. 19 the C.I. of Police, Sattenapalli visited the house of P.W. 1 and conducted inquest in the presence of P.W. 8 and others and sent the body for autopsy. P.W. 12, the Civil Asst. Surgeon, Government Hospital, Sattenapalli conducted autopsy over the deceased and opined that the cause of death was due to burns and issued Ex.P. 12 postmortem certificate.
The prosecution examined P.Ws. 1 to 20 and got marked Exs.P. 1 to P.25. P.Ws. 2 to 7 who were the neighbours of the house were declared hostile.
On a consideration of the evidence on record, the learned II Additional Sessions Judge found the accused not guilty of the offences with which they were charged and accordingly acquitted them of the charges.
The present appeal has now been filed against the acquittal of Accused No. 1.
The learned Additional Sessions Judge acquitted the accused on the following grounds :
P.W. 1 is not liking the deceased living with A.1 and therefore that the possibility of P.W. 1 instigating her daughter to implicate A.1 because she was angry with A.1 for having spoiled her daughter by developing illicit intimacy with the deceased and making it difficult for any reconciliation between the deceased and her husband, cannot be ruled out.
None of the villagers informed P.W. 1 as to how the house of A. 1 caught fire before her daughter informing her.
The doors of the house were not found locked when the incident took place. P.Ws. 2 to 7 who attempted to save the deceased by going inside the house have not received any injuries. According to the learned Judge any person entering into the burning house and bringing the deceased out of the house would certainly receive burns on the skin. Since none of P.Ws. 2 to 7 have not received injuries the story of the prosecution cannot be accepted. The house of A.1 was extensively damaged including the stored paddy and this would throw a reasonable doubt about the reality of A.1 setting fire to the deceased keeping her inside the thatched house preparing for the total damage of the property like paddy and house. If at all any dispute arose between the deceased and any of A.1 to A.3 nothing prevented the deceased to get out of the house and there is a welcoming mother, as she never liked the deceased living with A.1. Therefore, the statement of the deceased that there were disputes between A.1 and the deceased since three days prior to the incident is unbelievable leading A.1 to do away the life of the deceased. The deceased did not mention the presence of A.2 and A.3 in the house or their absence or the nature of quarrel between her and A.1. She simply stated that A. 1 poured kerosene on her body and set fire to her. Ex.P. 10 dying declaration and other circumstances would show that the doors of the burning house were not locked from outside. The evidence on record show that the deceased herself has come out of the house supported by circumstances surrounding it. Therefore, there is no necessity for the deceased to stay back in the house without coming out for help until the whole house caught fire. The doctors who examined the deceased did not mention the degree of burns received by the deceased. There is a possibility of the deceased catching burn injuries on all the parts of the body when she was coming out of a burning house. The doctors did not find smoke or smell of kerosene on the body of the deceased. P.W. 1 did not say about the smell of kerosene on the body of the deceased. This would only show the possibility of the deceased catching fire while running out of a burning house, when there will be no smell of kerosene. According to the learned Judge, M.O. 2 kerosene tin produced by P.W. 16 does not show even a scratch on the tin having been taken out from extensively burnt house. If M.O. 2 kerosene tin was used by A.1 by pouring the kerosene on the deceased and setting fire, necessarily the tin would have been spoiled in the fire. Therefore, the learned Judge held that the house of the accused caught fire first by accident while the deceased was cooking food and then the deceased catching fire would appear reasonable.
16 The learned Judge accordingly acquitted the accused on the ground that the prosecution has failed to bring home the guilt of the accused.
The learned Public Prosecutor appearing for the State submitted that Ex.P. 10 dying declaration of the deceased was recorded by the competent Magistrate after observing all the formalities. The dying declaration is corroborated by the accident registers, namely, Ex.P. 13 and P.25 of Government General Hospital, Guntur and Government Hospital, Sattenapalli respectively. The deceased immediately after the incident, under Ex.P. 14 statement stated that "Meeravalli has been beating me for the last 3 days stating as to to why I have been abusing his mother. Today i.e. on 21-6-1990 at about 10''o clock in the morning, he grew angry upon me and while I was in the house he poured kerosene on me, set fire with a match stick and while he was going out, bolted the thatti door (from) outside and went away. Then my entire body was burnt. The house was also burnt. With an intention to kill me he set fire to me". This statement was given on 21-6-1990. In Ex.P. 25 date 21-6-1990 which is the accident register of the Government Hospital, Sattenapalli, the cause of the injuries was recorded as "Alleged to have been injured by burns by husband on 21-6-1990 at 10.00 a.m." Ex.P. 13 which is also the accident register relating to the Government General Hospital, Guntur mentions the nature of injury as alleged to have been sustained burn caused by her (illegal husband) Sk. Meeravalli (by pouring kerosene and set fire) at Reddigudem at about 10.00 a.m." Similarly, in the dying declaration Ex.P. 10 the deceased stated that "In the morning at 10 a.m. a quarrel took place with my husband Veeravalli. He beat me. Veeravalli poured kerosene upon me in the house and set fire and went outside. My entire body was burnt. I cried. Many persons came there and made me to sit under a tree near the house." On Ex.P. 10 the doctor P.W. 11 certified that the patient is conscious, coherent and answering to questions.
Therefore, the learned Public Prosecutor submits that the dying declaration is corroborated by the accident registers Ex.P. 13 and P. 25 and also the earliest statement given by the deceased to the police under Ex.P. 14. He also submits that the evidence of P.W. 1 and the dying declaration Ex.P. 10 coupled with Exs.P. 13, P. 14 and P. 25 points out only to the guilt of the accused and the reasons given by the learned Additional Sessions Judge are not plausible. The judgment, according to the learned Public Prosecutor, is perverse.
Sri. A. T. M. Rangaramanujam, learned counsel appearing for the accused submitted that no investigation was made by the police about the conduct of the accused before the incident or after the incident. The Magistrate while recording the dying declaration did not put the question whether she is mentally fit to make a statement. In support of the said contention, he relied upon the judgment of the Supreme Court in K. Ramachandra Reddy and Another Vs. The Public Prosecutor, . The prosecution has not established the motive for the commission of the offence. No question has been put to the accused about his surrender before the Magistrate. The circumstances under which the dying declaration was recorded are improper. The deceased survived for some time after the incident and therefore the dying declaration is not given under the apprehension of death and as such it should not carry the same weight as any other piece of evidence. There is no evidence adduced by the prosecution about the dispute between the accused and the deceased. P.W. 11 the doctor does not say that Ex.P. 13 is made in pursuance of the statements made by the deceased.
In the dying declaration recorded by the Magistrate, the name of A.1 was mentioned as Veeravalli. Therefore, the S.I. of Police recorded another statement Ex.P. 17, according to which, the deceased corrected the name of the accused No. 1 from Veeravalli to Meeravalli. She stated in Ex.P. 17 that "........ Meeravalli grew angry upon me as I quarrelled and on 21-6-90 morning at 10 a.m. Meeravalli poured kerosene upon me, set fire with a match stick and when he was going out tied the thatti door from outside and went away. About the said matter, I gave a statement to the S.I. Later on I was shifted to the Government hospital, Sattenapalli. Later I was sent to Government General Hospital, Guntur. There the Magistrate recorded dying declaration from me for what had happened. I came to know that in the dying declaration given by me to the Magistrate, it was recorded by mistake that the name of the person who kept me is ''Veeravalli'' instead of ''Meeravalli''.
In the dying declaration recorded by the Magistrate under Ex.P. 10, which we have already extracted, the deceased has stated that her husband poured kerosene upon her in the house and set fire to her and went outside. The Doctor P.W. 11 certified that the patient is conscious, coherent and answering the questions. The dying declaration is corroborated by the accident register Ex.P. 25 and Ex.P. 13 where the cause for burn injuries was recorded as alleged to have been caused due to pouring of kerosene by A.1 and setting fire to the deceased. The name of A.1 was mentioned in Ex.P. 13 and P. 25. In our view, the dying declaration is corroborated by Ex.P. 13 and P.25. P.W. 11 the doctor in her evidence stated that the issued an intimation to the Munsif Magistrate, Guntur for recording a dying declaration and simultaneously given intimation to the police. Upon intimation, the Munsif Magistrate, Guntur came to the hospital. Then she conducted him to the patient who was still in the causality ward. The patient was concious and giving coherent answers. The Munsif Magistrate recorded the statement of the patient in her presence. After the statement was recorded by the Magistrate, she also certified that the patient was conscious, coherent and answering the questions. She denied the suggestion that the mentioned in the accident register the alleged cause of sustaining of burns as such at the instance of the mother of the deceased, but not on the information furnished by the deceased. She also admitted Ex.P. 13 is a carbon copy of the accident register.
The Munsif Magistrate who recorded the dying declaration Ex.P. 10 deposed that he received intimation from C.M.O., G.G.H. Guntur under Ex.P. 9 and he proceeded to the hospital by 4.05 p.m. The duty Medical Officer Mastanamma (P.W. 11) took him to the patient who was there in the casualty medical ward. By the time he went to the patient some people were standing around the patient. He asked them to go away from the room. Himself and duty doctor (P.W. 11) were alone present with the deceased. He made preliminary enquiries with the deceased to know her state of mind. By the answers she gave he found that the patient was in a fit state of condition to give the dying declaration. Then he proceeded on recording the statement by putting a question as to how the incident took place. He recorded the statement in the language in which the patient gave the statement. After the patient completed her statement he enquired whether she intend to give any further statement with regard to any aspect to which the patient said the does not intend to give any further statement. He read over the contents of the statement and took the left thumb impression of the patient on the statement recorded by him. He also stated that the Medical Officer attending on duty also certified that the patient is in a fit condition to give the statement and he obtained an endorsement of the medical officer on the statement recorded by him.
We have already extracted the dying declaration and contents of Ex.P. 13 and P.25. The dying declaration has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers and in the words of the maker of the declaration. The statement made by the deceased was consistent throughout, namely, in Ex.P. 10, dying declaration, Ex.P. 13 accident register of the Govt. General Hospital, Guntur, Ex.P. 25 accident register of Government Hospital, Sattenapalli. The statement recorded under S. 161, Cr.P.C. by the S.I. of Police i.e. Ex.P. 14 was also consistent. The statement under Ex.P. 14 has been made at the earliest opportunity and the same was consistent with the dying declaration Ex.P. 10 and is not the result of tutoring by interested parties. We are satisfied that the dying declaration P. 10 is the truthful version as to the circumstances of the death and the assailant of the deceased. We are also satisfied that the said dying declaration has been corroborated by Ex.P. 13 and Ex.P. 25 accident registers of the Government Hospitals at Guntur and Sattenapalli. In this context we may refer to the observations of the Supreme Court in Khushal Rao Vs. The State of Bombay, wherein it was held that (Paras 16 and 17) :-
"It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; ........ that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony ......; in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
XX XX XX XX XX XX But, once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the Court after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that the particular dying declaration was not free from the infirmities, ........."
The tests laid down by the Supreme Court are satisfied in the present case. There is no infirmity in the dying declaration. Further, the dying declaration is corroborated by other material evidence.
In Munnu Raja and Another Vs. The State of Madhya Pradesh, it was observed that -
"........ Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration."
To the same effect is the judgment of the Supreme Court in Surinder Kumar and another Vs. State of Haryana, wherein the Supreme Court observed that (Para 2) -
"The conviction of the appellant is based on the dying declaration made by the deceased in the hospitable before a Judicial Magistrate. The doctor certified that the patient remained conscious during the period her statement was recorded. The Judicial Magistrate recorded a certificate that the statement of Sheema was recorded by him and it contained true version of her statement and she had thumb marked the same. We have been taken through the text of the dying declaration. We are satisfied that in view of the doctor''s certificate, there is no infirmity in the recording of the dying declaration by the Magistrate and the same inspires confidence."
We may now examine the reasons given by the learned Addl. Sessions Judge for acquitting the accused. According to the learned Judge since P.W. 1 the mother of the deceased did not like her daughter to be associated with A.1, she instigated the deceased to implicate A.1. There is absolutely no evidence for the inference drawn by the learned Judge. Right from the beginning, the statement of the deceased was consistent i.e. from the date on which she suffered burn injuries till the date on which she gave the statement under Ex.P. 17. Throughout, her version is that A.1 was responsible for the incident. The learned Judge relied on the evidence of the witnesses who have turned hostile in holding that the persons from outside who entered the burning house to bring the deceased out of the house would certainly receive burns on the skin and since there was no evidence of such burns, according to the learned Judge, the prosecution version is not correct. The learned Judge failed to see that there is no evidence on this aspect either adduced by the prosecution or by the defence. Therefore, the inference drawn by the learned Judge is not correct. Another reason given by the learned Judge is that the house of A.1 was extensively damaged in the fire including the stored paddy and this would throw a reasonable doubt about the reality of A.1 setting fire to the deceased keeping her inside the thatched house. This circumstances is to be examined taking into account the state of mind of a person who developed illicit intimacy with another woman. the observation of the learned Judge that nothing prevented the deceased from leaving the accused also is to be examined in the context of the relationship that she developed with the accused. According to the learned Judge, the circumstances would show that the doors of the house were not locked and therefore if really A.1 set fire to the deceased by pouring kerosene on her body, necessarily she would catch fire and there is every possibility of deceased coming out of the house and there is no scope for outsiders seeing the house getting flames. According to the learned Judge, the fact that the paddy of 20 bags stored in the house gutted to ashes and the fact that none of the doctors gave the degree of burns suffered by the deceased indicate that there was a fire in the house by accident and therefore the prosecution case is not true. It is true that the degree of burns received by the deceased was not mentioned by any of the doctors. However, the learned Judge has failed to consider that the deceased survived for 17 days after the suffered burn injuries. Perhaps the would have survived had she not been brought from the hospital before taking the complete treatment. Further, there is no reason why the deceased should implicate the accused. Admittedly, the deceased died for want of proper medical aid and attention.
It is true that in appeal from an order of acquittal, the High Court should always give proper weightage and consideration to the views of the trial judge as to the credibility of the witness; the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; the right of the accused to the benefit of any doubt and the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witness.(See Sheo Swarup and Others vs. King Emperor It is also true that where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the court below has based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged, or demolished, the High Court should not disturb the acquittal. Ganesh Bhavan Patel and Another Vs. State of Maharashtra, and Awadhesh and Anr Vs. State of Madhya Pradesh, .
The learned Additional Sessions Judge while holding that it is a case of accident relied on the evidence of the witnesses who turned hostile. The learned Judge disbelieved the dying declaration Ex.P. 10 for the reasons mentioned in the earlier paragraphs. The reasons given by him are not plausible and we have already pointed out that there is no infirmity in the dying declaration and it is corroborated by other evidence. It is not a case where the reasons given by the learned Judge cannot be effectively dislodged or demolished. Since there is no infirmity in the dying declaration Ex.P. 10 and it is also corroborated by the other documentary evidence on record, we do not agree with the view expressed by the learned Addl. Sessions Judge.
Sri. Ranga Ramanujam, learned counsel appearing for the accused-respondent relied on the following passage of the Supreme Court in Sat Paul Vs. Delhi Administration, :
"..... the whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth ....."
The above are the observations of the Calcutta High Court in Profulla Kumar Sarkar and Others Vs. Emperor, .The Supreme Court approved the above observations of the Calcutta High Court in Sat Paul''s case. Sri. Rangaramanujam therefore argues that the Addl. Sessions Judge is justified in relying on the evidence of the hostile witnesses in arriving at the conclusion that the house caught fire by accident and as a result the deceased suffered burn injuries.
We do not agree with the above contention of Sri. Rangaramanujam since we find no infirmity in Ex.P. 10 dying declaration which is also corroborated by the accident registers Exs.P. 13 and P.25 maintained at the respective Government Hospitals.
The charges against the accused are under Ss. 302 and 342, IPC. The deceased suffered burn injuries on 21-6-1990 and she died on 8-7-90 i.e. 17 days after she suffered the burn injuries. Therefore, it falls under explanation (2) under S. 299, IPC. The accused is, therefore, liable for punishment under S. 304, Part II, IPC. Taking into account the facts and circumstances of the case, we convict the accused No. 1 for the offence punishable under S. 304, Part II, IPC and sentence him to suffer Rigorous Imprisonment for a period of five years. He is also convicted u/S. 342, IPC and sentenced to six months R.I. Both the sentences to run concurrently.
The judgment of the learned Addl. Sessions Judge to the extent of acquitting the Accused No. 1 is set aside. Criminal Appeal is accordingly allowed.
The period of detention if any under gone shall be set of under S. 428, Cr.P.C.
Appeal allowed.