1 S.C.No.233/2014
dated 31.01.2023
IN THE COURT OF THE VIII ADDITIONAL DISTRICT AND SESSIONS
JUDGE-CUM-SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST
WOMEN: NELLORE.
Present:- Smt. CIRIPIREDDY SUMA
VIII Addl.District and Sessions Judge-cum- Spl.Judge for Trial of Offences against Women, Nellore.
Tuesday, this the 31 st day of January, 2023.
SESSIONS CASE No.233/2014
(P.R.C.No.9/2014 of Judicial Magistrate of I Class, Sullurpet in Cr.No. 109/2013 of Tada police station, Nellore)
1.Name of the Complainant:State: Sub-Divisional Police Officer, Gudur.
2.Name of the accused:Simon Glowry Doss Vinod Kumar @ S. Mohammad Ahmad, S/o. Simon Gowry doss, age: 25 years, SC Audi Dravida Christian (converted to Muslim) D.No.53/10C, Abbai Street and town (NAA) Veluru District, Tamilnadu State. R/o.Tada Kandriga village, Tada Mandal, SPSR Nellore District.
3.Date, time and place of:On 29.06.2013 at 11.00 P.M. beside Sri occurrenceKalahasthi Road, Tada.
4.Charges:U/Secs.304-B, 302 of I.P.C.
5.Plea of Accused:Accused pleaded not guilty
6.Finding of the Judge:Found guilty for the offence under Section 302 I.P.C. Found not guilty for the offence under section 304-B I.P.C.
7.Sentence or Order:In the result, Accused is found guilty for the offence punishable under section 302 of Indian Penal Code and he is convicted under section 235 (2) of Cr.P.C. Accused is found not guilty for the offence punishable under section 304-B of In- dian Penal Code and he is acquitted under sec- tion 235 (1) of Cr.P.C. Accused is sentenced to undergo rigorous imprisonment for life and sentenced to pay fine of Rs.5000/-(Rupees five thousand only), in default, simple imprisonment for six (6) months. The set off period does not arise, since the accused is convicted for life imprisonment for the above said offence. M.O.1-white plastic can of 5 liters capacity containing 2 liters of kerosene, M.O.2-Match box with match sticks, M.O.3-Pieces of nightie, M.O.4- 2 S.C.No.233/2014
dated 31.01.2023
Black bra, M.O.5-Underwear and M.O.6-T shirt seized in this case in C.P.R.No.71/2019 shall be destroyed after expiry of appeal time. Accused is apprised of his right to prefer appeal against the Judgment of this Court.
8Prosecution conducted by:Sri S.V.L.N.S.R.V.Prasad, .Addl. Public Prosecutor, Nellore.
9.Defence conducted by:Sri G. V. Chowdary, Advocate for Accused.
J U D G M E N T
1. The Sub-Divisional Police Officer, Gudur has laid charge sheet against the accused in Cr.No.109 of 2013 of Tada Police Station for the offences under sections 304-B and 302 of Indian Penal Code.
2.Brief accusation against the accused is thatthe deceased/Ansar Afranishath is the elder daughter of P.W.1-S. Ansar Basha and P.W.2-A. Balkis, who were residents of Rangapuram village of Tamilnadu
State, deceased/Ansar Afranishath studied upto 10 + 1 at Higher secondary
Government School, Rangapuram. While so, the accused who used to visit the house of one Rajan situated adjacent to the house of deceased/Ansar
Afranishath developed intimacy with the deceased/Ansar Afranishath and kidnapped the deceased/Ansar Afranishath from lawful guardianship of her parents/P.W.1 and P.W.2, thereafter parents of deceased/Ansar Afranishath traced deceased/Ansar Afranishath and accused but, the parents of deceased/Ansar Afranishath were not interested to perform marriage of their daughter with the accused as he belongs to Christianity and on that accused voluntarily converted himself to Muslim religion on 29.09.2012 and thereafter parents of deceased/Ansar Afranishath performed the marriage of 3 S.C.No.233/2014
dated 31.01.2023
deceased/Ansar Afranishath with the accused as per muslim customs on 14.10.2012. After marriage deceased/Ansar Afranishath and the accused stayed in the house of P.W.1 for 2 months and after securing job in Sree City, Tada of A.P. State, the accused and deceased/Ansar Afranishath have put up separate family in the house of one
Sk. Masthan/P.W.3 at Tada Kandriga. Thereafter accused started harassing the deceased/Ansar Afranishath both physically and mentally on the ground that the deceased/Ansar Afranishath did not bring dowry, as such, he is not financially benefited. The accused also used to threaten the deceased/Ansar
Afranishath in fear of death as she did not bring dowry and used to assault her with hands and legs. The deceased/Ansar Afranishath used to inform about the harassment meted out by her in the hands of accused to her parents over phone asking them to provide dowry but, the parents of deceased/Ansar Afranishath used to console the deceased/Ansar
Afranishath over phone advising her to adjust with the accused. On 29.06.2013 at 11.00 P.M accused picked up quarrel with the deceased/Ansar Afranishath and poured kerosene on the body of deceased/Ansar Afranishath and set fire to her with a match stick, while the deceased/Ansar Afranishath was burning in flames, the accused came out of the room and bolted the door, unable to bear the flames the deceased/Ansar
Afranishath raised cries, on hearing cries of deceased/Ansar Afranishath,
P.W.3 and L.W.4-M. Ananda Reddy came to the house of deceased/Ansar
Afranishath and on seeing them accused opened the door and subsided the fire and shifted the deceased/Ansar Afranishath to Chennai for treatment in a 4 S.C.No.233/2014
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car. On 30.06.2013 at 2.00 A.M., the deceased/Ansar Afranishath was admitted in Kilpak Medical College (KMC) Hospital, Chennai.
On 1.7.2013 at about 6.00 P.M. the then Asst. Sub Inspector of
Police of Tada Police Station/P.W.7 visited Kilpauk Medical College (KMC)
Hospital, Chennai, secured the presence of deceased/Ansar Afranishath and recorded statement of deceased/Ansar Afranishath on 2.7.2013 at 2.00 A.M and basing on the statement of deceased/Ansar Afranishath, he registered a case in Cr.No.109/2013 for the offences under sections 498-A, 307 and
Sections 3 and 4 of Dowry Prohibition Act and took up investigation in this case. P.W.7 visited the house of accused where scene of offence is situated, he observed scene of offence in the presence of mediators and there he seized a plastic can, match box and match sticks, burnt nightie cloth pieces, black bra, underwear and T shirt under cover of scene observation report duly attested by the above mediators. Thereafter, P.W.7 has proceeded to
Chennai, there he examined the deceased/Ansar Afranishath and recorded her statement, he also examined P.W.1, P.W.2 who are parents of deceased/Ansar Afranishath, P.W.3/House owner in whose house the deceased/Ansar Afranishath and accused had stayed by availing services of
P.W.4, a translator who is acquainted with Tamil language. On 2.7.2013
P.W.7 gave a requisition to P.W.11/Jayavelu, 16th Metropolitan Magistrate,
Chennai to record the statement of deceased/Ansar Afranishath. On the same day, the learned 16th Metropolitan Magistrate, Chennai/P.W.11 recorded dying declaration of the deceased/Ansar Afranishath at Kilpauk
Medical College (KMC) Hospital, Chennai. While undergoing treatment the 5 S.C.No.233/2014
dated 31.01.2023
deceased/Ansar Afranishath succumbed to burn injuries at Kilpak Medical
College (KMC) Hospital, Chennai, on receipt of death intimation P.W.13, the then Sub Inspector of Police, Tada Police Station submitted a requisition to
Tahsildar of Tada Mandal/P.W.6 to hold inquest over the dead body of deceased/Ansar Afranishath. Accordingly, P.W.6 held inquest over the dead body of deceased/Ansar Afranishath on 5.7.2013 at 3.30 P.M. and during the course of inquest P.W.6 examined the blood relatives of deceased/Ansar
Afranishath i.e. P.W.1 and P.W.2 who are parents of deceased/Ansar
Afranishath and P.W.3/owner of the house and others and recorded their statements.
P.W.15-K. Choudeswari, Sub-Divisional Police Officer, Gudur took up further investigation in this case, she examined all the witnesses in connection with the above case and recorded their statements and also verified the investigation done by P.W.7 and found it on correct lines.
P.W.12, the then Assistant Professor of Forensic Medicine, Kilpauk Medical
College, Chennai who conducted autopsy over the dead body of deceased/Ansar Afranishath gave postmortem certificate opining that the cause of death of deceased/Ansar Afranishath is due to burns all over the body. On 8.07.2013 at 10.00 A.M. P.W.15/K. Choudeswari, Sub Divisional
Police Officer, Gudur arrested the accused at his residence in the presence of mediators under cover of arrest mahazar and thereafter produced the accused before Court for remand and after completion of entire investigation in this case, she laid charge sheet in this case against the accused for the offences under sections 304-B and 302 I.P.C.
6 S.C.No.233/2014
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3. This case was filed before the learned Judicial Magistrate of First
Class, Sullurpeta and cognizance was taken for the offences under sections 304-B and 302 of I.P.C against the accused and numbered the same as
P.R.C.No.9/2014 and after appearance of accused, copies of documents were furnished to the accused under section 207 of Cr.P.C and committed the case to the Court of Sessions, Nellore. The Hon’ble Principal District and
Sessions Judge, Nellore has numbered the same as Sessions Case
No.233/2014 and the said record received from Assistant Sessions Judge’s
Court, Gudur as per proceedings of the Hon’ble Principal District and
Sessions Judge, Nellore, in Dis.No.6079 dated 5.11.2019 on the point of
jurisdiction to this Court, as this Court is newly established Court as Special
Court for Trial of Offences against women.
4. On receipt of record, this Court issued summons to the accused and on his appearance and after hearing on charges under section 228 (2) of Cr.P.C., this Court framed charges against the accused for the offences punishable under sections 304-B and 302 of Indian Penal Code, read over and explained to him in Telugu, for which the accused pleaded not guilty and claimed to be tried and this court proceeded with the trial of the case.
5. To prove the case of the prosecution, prosecution has examined
P.W.1 to P.W.15 besides marking Ex.P1 to Ex.P19 and M.O.1 to M.O.6. The learned Additional Public Prosecutor has given up the evidence of L.W.4-M.
7 S.C.No.233/2014
dated 31.01.2023
Ananda Reddy, L.W.5-A. Musfira, L.W.6-U. Imran Khan, L.W.14-Dr. S. Dhana
Raju.
6. After closure of prosecution evidence, the accused was examined under section 313 of Cr.P.C explaining to him in Telugu, the incriminating evidence available on record, for which the accused denied the same and reported no defence evidence and got marked Ex.D1 to Ex.D3. Ex.D1 is portion of 161 Cr.P.C statement of P.W.1, Ex.D2 is portion of 161 Cr.P.C statement of P.W.1 and Ex.D3 is portion of 161 Cr.P.C statement of P.W.2.
7. Heard the arguments of learned Additional Public Prosecutor for the State and the learned counsel for the accused.
8.Now the points for determination are:
(1) Whether prosecution established that accused committed dowry death of deceased punishable under Section 304-B I.P.C or not?
(2) Whether the prosecution could establish that accused with an intention to murder the deceased burnt her to death by pouring kerosene on her body and then setting her ablaze?
(3) Whether the prosecution has proved the guilt of accused beyond all reasonable doubt?
9.Points No.1 and 2 were taken up together for the sake of convenience.
Points No.1 and 2:
8 S.C.No.233/2014
dated 31.01.2023
10.To prove the case of prosecution,the prosecution has examined
P.W.1 to P.W.15 and got marked Ex.P1 to Ex.P19 and M.O.1 to M.O.6, among them P.W.1 is father of deceased/Ansar Afranishath, P.W.2 is mother of deceased/Ansar Afranishath, P.W.3 is owner of the house wherein deceased and accused had stayed as tenants at Tada, P.W.4 is a translator who translated 161 Cr.P.C statements of father, mother and sister of victim/deceased- Ansar Afranishath from Tamil language to Telugu language on the request of Asst. Sub Inspector of Police, Tada/P.W.7. P.W.5 is photographer who photographed scene of offence, P.W.6 is the then
Tahsildar of Tada who held inquest over the dead body of deceased/Ansar
Afranishath, P.W.7 is the then Asst. Sub Inspector of Police, Tada Police
Station who recorded the statement of deceased/Ansar Afranishath and registered a case in Cr.No.109/2013, P.W.8 and P.W.9 are Village Revenue
Officers who are cited as mediators for observation of scene of offence and for seizure of material objects No.1 to 6 at the house of deceased/Ansar
Afranishath, P.W.10 is the then Head constable who handed over the dead body of deceased/Ansar Afranishath to her parents, P.W.11 is the then 16th
Metropolitan Magistrate, Chennai who recorded dying declaration of deceased/Ansar Afranishath at Government Stanley Hospital called as Kilpak
Medical College and Hospital, Chennai, P.W.12 is the then Associate
Professor, Kilpauk Government Medical College and Hospital, Chennai who conducted autopsy over the dead body of deceased/Ansar Afranishath along with Dr. Jitendra and issued postmortem certificate, P.W.13 is the then Sub
Inspector of Police, Tada Police Station who issued altered F.I.R basing on 9 S.C.No.233/2014
dated 31.01.2023
the death intimation of deceased/Ansar Afranishath by adding sections 304-B and 302 I.P.C., P.W.14 is the then Casualty Medical Officer, Government
Kilpauk Medical College and Hospital, Chennai, P.W.15 is the then Sub
Divisional Police Officer, Gudur who took up further investigation in this case.
11.P.W.1 who is father of deceased/Ansar Afranishath deposed that nearly 6 years back marriage of deceased/Ansar Afranishath was performed with accused as per Muslim customs in a mosque and prior to marriage of deceased/Ansar Afranishath, accused committed rape on deceased/Ansar
Afranishath and they gave report to police. After marriage of deceased/Ansar
Afranishath with accused, deceased/Ansar Afranishath and accused have stayed at their house for 2 months and during said period accused used to visit their house. 6 months prior to the death of deceased/Ansar Afranishath, accused had put up family with deceased/Ansar Afranishath at Tada. During stay of deceased/Ansar Afranishath with accused, deceased/Ansar
Afranishath used to speak to him over phone, whenever deceased/Ansar
Afranishath speaks to him by weeping, accused used to take away cell phone from her. At the hospital deceased/Ansar Afranishath spoken with
P.W.2 and told her that accused poured kerosene on her and set fire to her body and she was admitted at Kilpak Medical College Hospital, Chennai, by the time he and his wife went to the said hospital, police have recorded the statement of deceased/Ansar Afranishath and within 3 days deceased/Ansar
Afranishath succumbed to burn injuries.
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12.P.W.2 who is mother of deceased/Ansar Afranishath deposed that 15 days prior to marriage of deceased/Ansar Afranishath with accused, accused who belongs to Christian community converted to Muslim religion, in the month of October, 2012 marriage of deceased/Ansar Afranishath was performed with accused as per Muslim customs, after marriage deceased/Ansar Afranishath and accused had stayed at their house for about 2 months and during that period accused used to visit their home and consume liquor, thereafter accused took the deceased/Ansar Afranishath to his maternal grand mother’s house and stayed there for about 2 months and in the month of April, 2013 accused and deceased/Ansar Afranishath had put up family at Tada and during the stay of deceased/Ansar Afranishath with accused, deceased/Ansar Afranishath informed her over phone that they are residing in the house of P.W.3 and the deceased/Ansar Afranishath also informed her that accused used to beat her demanding her to bring money and used to intimidate her by pointing a knife.
13. During cross-examination of P.W.1 and P.W.2, nothing is elicited from P.W.1 and P.W.2 to disprove their evidence except putting a suggestion to P.W.1 and P.W.2 that they demanded the deceased/Ansar Afranishath to discard the accused stating that they would perform marriage of deceased/Ansar Afranishath with a Muslim man and accused never harassed the deceased/Ansar Afranishath and never beat her and never demanded money and due to their pressure only, the deceased/Ansar
Afranishath committed suicide which is denied by them.
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14.It is significant to note that during cross-examination of P.W.1 and
P.W.2, the learned Counsel for accused elicited from P.W.1 and P.W.2 that the accused belongs to Christianity and the deceased/Ansar Afranishath belongs to Muslim religion and marriage of deceased/Ansar Afranishath and accused was initially taken place at Sullurpet and later on marriage of deceased/Ansar Afranishath with accused was performed by parents of deceased/Ansar Afranishath (i.e.) P.W.1 and P.W.2 as per Muslim religious customs on the advise of elders after the accused convertd to muslim religion on the condition imposed by P.W.1 and P.W.2 and immediately after marriage the deceased/Ansar Afranishath and accused had stayed at the house of P.W.1 and P.W.2 and 2 months prior to the death of deceased/Ansar Afranishath, accused had put up separate family with the deceased/Ansar Afranishath at Tada and P.W.1 and P.W.2 have not visited the house of accused and deceased/Ansar Afranishath at Tada, which is also not denied by accused.
15. Prosecution also got marked Ex.P1-Affidavit of accused dated 29.09.2012 regarding conversion of religion from Christianity to Muslim and
Ex.P2-marriage certificate dated 14.10.2022 issued by Khaji, Ambur Mosque to prove that accused Simon Glowry Doss Vinod Kumar converted from
Christianity to Muslim religion and married deceased/Ansar Afranishath on 14.10.2022 as per muslim customs in Mosque at Ambur. When P.W.1 and
P.W.2 performed marriage of deceased/Ansar Afranishath with the accused 12 S.C.No.233/2014
dated 31.01.2023
on the advise of elders after the accused converting to Muslim community from Christianity though initially accused married deceased/Ansar
Afranishath at Sullurpet and the parents of deceased/Ansar Afranishath have also allowed the deceased/Ansar Afranishath and accused to lead marital life at their house for 2 months immediately after their marriage till the accused taken the deceased/Ansar Afranishath to the house of his grand mother, it is un-understandable as to how and why the parents of deceased/Ansar Afranishath pressurized the deceased/Ansar Afranishath to discard accused who is a Civil Engineer working as Supervisor at Sree City,
Tada in order to perform marriage of deceased/Ansar Afranishath with a
Muslim man, it is for the reasons best known to accused.
16. Had really P.W.1 and P.W.2 are not interested to perform marriage of deceased/Ansar Afranishath with accused, they might not have imposed a condition to the accused to change his community from
Christianity to Muslim religion, they might not have heed the words of elders and they might not have performed the marriage of deceased/Ansar
Afranishath with the accused at a Mosque as per muslim religious custom and they might not have obtained a certificate of marriage/Ex.P2 dated 14.10.2012 from a Mosque at Ambur. Instead of performing marriage of deceased/Ansar Afranishath with accused and pressurizing her to discard the accused in order to perform her marriage with a Muslim man, they would have performed the marriage of deceased/Ansar Afranishath with their community person (i.e.) a Muslim man after tracing the deceased/Ansar 13 S.C.No.233/2014
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Afranishath after her marriage with accused at Sullurpet and no parent will pressurize their daughter to discard her husband when once they themselves performed the marriage of their daughter that too on the advice of elders and that the contention of accused that deceased/Ansar Afranishath committed suicide due to the pressure given to her by her parents to discard accused and to marry a muslim man can not be believed..
17.A bare perusal of statement of injured/victim-Ansar Afranishath (deceased) recorded by P.W.7 on 1.07.2013 at 6.00 P.M. categorically goes to show that she and accused loved each other, she belongs to muslim religion and accused belongs to Christianity, on knowing about their love affair both sides elders have performed their marriage on 14.10.2012 and after marriage she and accused lead marital life at her parents house for 2 months and thereafter they went to maternal grandmother’s house of accused and stayed there. Since 2 months prior to the incident accused had put up family at Tada in the house owned by P.W.3, as accused joined as
Supervisor in a Metaloan company at Sree city and during night times accused used to harass her that she did not bring dowry and he was not benefited because of her and harassed her threatening her to kill and used to beat her with hands and legs, likewise he beat her for several times and on 29.06.2013 at 11.00 p.m. accused with an intent to kill her poured kerosene on her and litted fire and while she was burning, accused went out and bolted the door, as she could not bear burns, she raised cries and on the arrival of neighbours, accused unbolted the door and subsided the fire along 14 S.C.No.233/2014
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with neighbours and she was shifted to Kilpauk Medical college and Hospital,
Chennai for treatment on 30.6.2013 at 2.00 A.M.
18. It is therefore it is clear from the statement of deceased/Ansar
Afranishath/Ex.P5 that after putting separate family at Tada, accused used to harass her during night times on the reason that she could not bring dowry and he was not benefited of her and threatened her to kill and on 29.06.2013 at 11.00 P.M. accused with an intent to kill the deceased/Ansar Afranishath poured kerosene on deceased/ and litted fire and while she was burning accused went out and bolted the door and on hearing of cries by the deceased/Ansar Afranishath when the neighbours arrived, the accused unbolted the door and subsided the fire along with neighbours and shifted the deceased/Ansar Afranishath to hospital at Chennai for treatment.
19.Coming to the evidence of P.W.11, the then XVI Metropolitan
Magistrate, Chennai who recorded the dying declaration of the
deceased/Ansar Afranishath in Tamil language which was got translated by
P.W.15, Sub Divisional Police Officer, Gudur to English language is that on 1.7.2013 at 7.30 P.M. on receipt of intimation from P.W.7/Assistant Sub-
Inspector of Police, Tada police station in Cr.No.109/2013 for recording dying declaration of injured victim/Ansar Afranishath(deceased), he immediately rushed to Government Stanley Hospital called as Kilpak Government
Medical College and Hospital, Chennai, there, he secured injured victim/Ansar Afranishath(deceased) identified by duty doctor Sankari, he 15 S.C.No.233/2014
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recorded dying declaration of injured victim/Ansar Afranishath(deceased) in the presence of said duty doctor and said duty doctor has also certified consciousness and fit state of mind of injured victim/Ansar
Afranishath(deceased) for giving statement and he also satisfied that injured victim/Ansar Afranishath(deceased) was in fit state of mind by putting certain questions.
20.P.W.11 further deposed that injured victim/Ansar
Afranishath(deceased), stated to him that her husband used to quarrel with her everyday coming home by consuming liquor, repeatedly kicks her with legs and calls her to have sex by switching on his cell phone and if sex was had, he videographs in his cell phone and gives sex torture; during night times he speaks with other lady over phone and if she asks the accused with whom he is speaking to, the accused will beat her. On 29.06.2013 at 11.00 P.M. accused picked kerosene and poured on her asking her whether she will lit fire to her or he has to lit fire, when she replied that she won’t lit fire and she will go to her parents house, accused litted a match stick and dropped on her and went outside the room. While the flames caught her and she was burning, she knocked the door twice, thereafter accused opened the door and poured water on her, meanwhile neighbours have arrived, due to burning she sustained burn injuries on face, right chest and on abdomen. P.W.11 further deposed that deceased/Ansar Afranishath also informed him that accused also obtained her thumb impressions twice forcibly on a blank paper and she also showed ink mark on her thumb. For 16 S.C.No.233/2014
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several times accused had shown a girl’s photo saying that she is his college mate and she alone is his wife and after recording statement of injured/victim Ansar Afranishath (deceased) he again obtained certificate of duty doctor with regard to consciousness and fit state of mind of injured/victim Ansar Afranishath (deceased) throughout while recording of statement and no one is permitted near the victim except injured/victim Ansar
Afranishath (deceased) himself and the Doctor.
21.During cross-examination of P.W.11, nothing is elicited from him to show that the dying declaration was made due to tutoring by anybody and during cross-examination of P.W.11, P.W.11 categorically deposed that at the time of his visit, he has not seen any relative of victim along with the victim.
It is therefore from the evidence of P.W.11 it is clear that every day accused used to quarrel with deceased/Ansar Afranishath by coming home in intoxication state and repeatedly kicks her with legs and gives sex torture by videographing sexual act, if participated in sexual intercourse and by speaking to other lady over phone during night times and by showing photograph of his college-mate saying that “she is only his wife” and on 29.06.2013 at 11.00 p.m. accused picked kerosene and poured kerosene on the deceased/Ansar Afranishath asking her “whether she lits fire to herself or he has to lit fire to her” and when the deceased/Ansar Afranishath replied that she won’t lit fire and will go to her parents house the accused litted a match stick and dropped on her and went outside the room, when the deceased/Ansar Afranishath knocked the door as she caught in flames, the 17 S.C.No.233/2014
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accused opened the door and poured water on her in meantime neighbours arrived.
22.While advancing arguments, the learned counsel for accused submitted that report/Ex.P5 is silent about accused giving sex torture to deceased/Ansar Afranishath and taking videographs while participating in sex and harassing deceased/Ansar Afranishath by speaking to other lady in phone during night times. The dying declaration given by deceased/Ansar
Afranishath is tutored by her parents while she was in delusion state due to giving of sedative drugs and he relied upon decisions reported in 2020(2)
ALT (Crl.) 351 (SC) in “Sampat Babso Kale and another v. State of
Maharashtra” in Criminal Appeal No.694-695 of 2011” and 2016 (3) ALT
(Crl.) 313 (A.P.) in “Namana Venkata Siva Narayana v. Namana
Seetharavamma and others” in Criminal Revision Case No.387 of 2008.
23. It is well settled law that F.I.R is not intended to be an encyclopedia of background scenario, it must disclose commission of offence and F.I.R not constitutes substantive evidence. Non mentioning of minute details in the F.I.R may not be a ground to doubt its contents if the statement of the witness is found to be trustworthy. There is nothing on record to doubt the statement of deceased/Ansar Afranishath/Ex.P5 recorded by P.W.7. And it is clear from the report (i.e.) statement of deceased/Ansar Afranishath (i.e.)
Ex.P5 and Dying Declaration of deceased/Ansar Afranishath (i.e.) Ex.P14 that on 29.06.2017 at 11.00 P.M. accused was very much present at house at 18 S.C.No.233/2014
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the time of incident and presence of accused is also not denied by the accused.
24. In “Sampat Babso Kale and another v. State of Maharashtra” in
Criminal Appeal No.694-695 of 2011, it was observed that in case of patients of serious burn injuries, pain killers are administered to the patients and in such cases trauma may cause delusion in the mind of person and after perusal of treatment chart he stated that Fortwin injection was given to deceased at 3.30 a.m. and once a Sedative had been injected the possibility of her being in a state of delusion cannot be completely ruled out and shock due to 98% of burns may lead to delusion and therefore there is a need to look for corroborative evidence in present case and none of the witnesses from the neighbourhood have been examined.
25.In“Namana Venkata Siva Narayana v. Namana
Seetharavamma and others” in Criminal Revision Case No.387 of 2008.
2008, it was observed that it is unsafe to base a conviction on dying declaration in the absence of any corroborative evidence when declaration of deceased is highly doubtful.
26.The above reported decisions are not applicable to the present facts and circumstances of the case. In the present case deceased/Ansar
Afranishath sustained 68% of the burns and the duty doctor has certified consciousness and fit state of mind of deceased/Ansar Afranishath prior to 19 S.C.No.233/2014
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recording her statement and after recording her statement to the effect that the deceased/Ansar Afranishath was conscious and in fit state of mind through out recording her statement and there is no material on record to show whether Sedative drugs were administered to victim/Ansar Afranishath just prior to recording of her dying declaration and if so, the quantity of dosage given and further P.W.3 who is adjacent neighbour and owner of house of deceased/Ansar Afranishath and accused was examined by prosecution.
27.At this juncture, it is pertinent to rely upon a judgment in
Criminal Appeal No.34 of 2022 in case of “State of U.P. … Appellant(S)
Versus Veerpal & Anr.. … Respondent(S) wherein his Lordship M. R.
Shah. J. made an observation that dying declaration was made by the deceased to Sub Divisional Magistrate (SDM) Bal Kishan Agarwal who was also examined as the prosecution witness/P.W.11 before the trial court, his statement reveals that the deceased at the time of making statement was fully conscious and capable of comprehending the questions put forth by the
Officer to whom declaration was made. The evidenciary value of Dying declaration is further enhanced by the fact that it was accompanied by a certificate from the Physician who was treating the deceased prior to her death stating that the deceased remained fully conscious while making the statement. The trial Court rightly placed reliance on the dying declaration having due regard to the statement made by the Physician as to consciousness of deceased while making such declaration. The trial court 20 S.C.No.233/2014
dated 31.01.2023
has also rightly noted that the statements of Sub Divisional magistrate and the Physician being independent witnesses in the trial has added weight to the prosecution as the same could not be motivated by malice. Therefore, considering the Dying Declaration recorded by the Sub-Divisional Magistrate on 22.12.2011, the accused can be convicted for which they were tried.
28.The above reported decision aptly applicable to the present facts and circumstances of the case. In the present case, P.W.7, Assistant Sub
Inspector of Police, Tada Police Station recorded the statement of the deceased/Ansar Afranishath-Ex.P5 on receipt of hospital intimation and basing on the statement of the deceased/Ansar Afranishath/Ex.P5, he registered this case and gave a requisition to P.W.11/the then XVI
Metropolitan Magistrate, Chennai to record dying declaration of deceased/Ansar Afranishath on 1.7.2013 at 7.50 P.M.. The evidence of
P.W.11/the then XVI Metropolitan Magistrate, Chennai is categorical that on receipt of requisition, he rushed to Kilpak Government Medical College and
Hospital, Chennai, he got identified the victim/deceased/Ansar Afranishath through a duty doctor, the deceased/Ansar Afranishath at the time of making statement was fully conscious and capable of comprehending questions put forth by the Officer to whom the declaration was made. The evidenciary value of Dying declaration is further enhanced by the fact that it was accompanied by a certificate from Medical Officer who was treating the deceased/Ansar Afranishath prior to her death stating that the deceased/Ansar Afranishath remained fully conscious while making the 21 S.C.No.233/2014
dated 31.01.2023
statement and there is nothing on record to doubt the evidence of P.W.11 and
Dying Declaration of deceased/Ansar Afranishath/Ex.P14 was made due to tutoring by anybody.
29.Prosecution also examined P.W.6 the then Tahsildar of Tada
Mandal who conducted inquest over the dead body of the deceased/Ansar
Afranishath, he also deposed that on 5.7.2013 he conducted inquest over the dead body of the deceased/Ansar Afranishath at Kilpak Government
Medical College and Hospital, Chennai and during the course of inquest, he examined blood relatives of deceased/Ansar Afranishath and basing on the statement of blood relatives they opined that “the deceased/Ansar
Afranishath was murdered by the accused by pouring kerosene on her and by litting fire to her” and during cross-examination of P.W.6, nothing is elicited from P.W.6 that he did not examine the blood relatives of the deceased/Ansar Afranishath and their opinion that “the deceased/Ansar
Afranishath was murdered by the accused by pouring kerosene and by litting fire” is false, except eliciting from P.W.6 that the witnesses examined by him are blood relatives and no eye witness was examined by him and that the evidence of P.W.6/Tahsildar that he and other mediators came to opinion that “deceased/Ansar Afranishath was murdered by the accused by pouring kerosene on her and by litting fire to her” remained unchallenged.
30. It is therefore the death of deceased/Ansar Afranishath is admittedly unnatural death when she is in company of accused, the accused 22 S.C.No.233/2014
dated 31.01.2023
being husband of deceased/Ansar Afranishath is expected to offer an explanation about the circumstances under which the deceased/Ansar
Afranishath sustained burn injuries which resulted in her death. During examination of accused under section 313 Cr.P.C the accused categorically stated that parents of deceased/Ansar Afranishath created fire accident into a murder case as they disliked him. And it is also the evidence of P.W.14, the then casualty medical officer, Government Kilpak Medical college Hospital,
Chennai who rendered first aid to deceased/Ansar Afranishath on 30.6.2013 at 2.20 A.M. that the deceased/Ansar Afranishath was admitted at hospital with a history of accidental burns due to burst of kerosene stove at 11.00 p.m. on 29.06.2013 near Tada police station brought by her husband Vinod for treatment. Whereas during cross-examination of P.W.1 and P.W.2, it is suggested to P.W.1 and P.W.2 by the accused that the deceased/Ansar
Afranishath committed suicide due to the pressure given by them to discard accused and to marry a muslim man. When accused informed to the Doctor at the time of admission of deceased/Ansar Afranishath that the deceased sustained burns accidentally due to stove burst, it is ununderstandable as to why accused suggested to P.W.1 and P.W.2 that deceased/Ansar Afranishath committed suicide due to the pressure given by them to discard the accused, it is for the reasons best known to accused.
31. It is significant to note that in chief-examination of P.W.3/House
Owner who rushed to the house of deceased/Ansar Afranishath and accused on hearing cries from the house of accused is that “when he went there, he 23 S.C.No.233/2014
dated 31.01.2023
saw the accused knocking the door, as deceased/Ansar Afranishath was inside and raising cries, he came out from there out of fear. Whereas during cross-examination by the learned public prosecutor, P.W.3 categorically admitted that “he has stated before police that he and L.W.4-M. Ananda
Reddy went to the house of accused and deceased/Ansar Afranishath, there he and L.W.4-M. Ananda Reddy found the door was opened and he saw fire on the body of deceased/Ansar Afranishath and deceased/Ansar Afranishath was raising cries for help and then accused poured water on the fire” and again during his cross-examination by learned Counsel for accused he again changed his version and deposed that deceased/Ansar Afranishath was inside the room and the door was bolted from outside the room, he, his mother-in-law, L.W.4-Ananda Reddy and accused have broke opened the door forcibly. P.W.3 has spoken 3 different versions with regard to what he actually noticed at the house of accused when he rushed there on hearing cries of deceased/Ansar Afranishath and accused and evidence of P.W.3 is silent as to occurrence of fire accident at the house of accused which resulted in sustaining burn injuries to the deceased/Ansar Afranishath.
32.As could be seen from scene observation report, it is clear that
P.W.7 seized a kerosene can, match box, pieces of nighty, underwear, T shirt from the room situated on the northern side of kitchen; either traces of stove burst or fire accident or traces of opening the door forcibly from outside are noted in Ex.P8-scene observation report and no suggestion is put to the mediators P.W.8 and P.W.9 and to Investigating Officer/P.W.7 that fire 24 S.C.No.233/2014
dated 31.01.2023
accident or stove burst was taken place at the house of accused or the deceased has bolted the door from outside and the said door was broke opened forcibly. Had really fire accident/stove burst had occurred at the house of accused, certainly there would be traces of fire accident/stove burst inside the kitchen of the house of accused and had really door was bolted from inside the room and the same was broke opened from outside certainly the bolt attached/fixed to the inside door will be detached either completely or partially depending upon the force used for opening the door from outside when the door was said to have bolted from inside. But, no such traces of fire accident/stove burst/opening of the door forcibly from outside was found by P.W.8, P.W.9 and P.W.7. Therefore, the version of accused that the deceased sustained burn injuries in a fire accident or the deceased committed suicide due to the pressure given by her parents to discard the accused in order to perform her marriage with a muslim man can not be believed and the evidence of P.W.3 that the deceased bolted the door from inside the room and they broke opened the door from outside forcibly and subsided fire can not be believed.
33The prosecution has established that the dying declaration/Ex.P14 was true and trustworthy and so also Ansar
Afranishath(deceased) has declared her dying declaration in conscious and coherent state of mind without tutoring by anybody and so also, the said dying declaration was also corroborated by other circumstances including medical evidence regarding cause of death of deceased/Ansar Afranishath 25 S.C.No.233/2014
dated 31.01.2023
as ‘burn injuries’ and also the presence of accused along with the deceased/Ansar Afranishath at the time of incident at the house is also well established through the evidence of P.W.3 and also corroborated by recovery of material objects i.e. M.O.1-white plastic can of 5 liters capacity containing 2 liters of kerosene, M.O.2-Match box with match sticks, M.O.3-Pieces of nighty, M.O.4-Black bra, M.O.5-Underwear and M.O.6-T shirt and the stained relationship between the accused and the deceased/Ansar Afranishath established through P.W.1 and P.W.2 and also the conduct of the accused by stating the cause of death of deceased/Ansar Afranishath on one of hand as commission of suicide by the deceased/Ansar Afranishath in view of the pressure given by her parents to discard the accused in order to marry a muslim man and on the other hand cause of death of deceased/Ansar
Afranishath is due to fire accident which is contradict to medical evidence and other circumstances.
34.Therefore from the contents of statement of deceased-Ansar
Afranishath/Ex.P5 recorded by P.W.7/the then Assistant Sub-Inspector of
Police, Tada Police Station, dying declaration recorded by P.W.11/the then
XVI Metropolitan Magistrate, evidence of P.W.6/the then Tahsildar of Tada
Mandal, inquest report/Ex.P4 and from the admission of P.W.3 during his cross-examination by learned Additional Public Prosecutor that he stated to the police as “when he and L.W.4-M. Ananda Reddy went to the house of accused, there he found the door was opened and he saw fire on the body of deceased/Ansar Afranishath and deceased/Ansar Afranishath was raising 26 S.C.No.233/2014
dated 31.01.2023
cries, then accused poured water on fire and shifted the deceased/Ansar
Afranishath to Chennai hospital. It is therefore it is categorically proved that on 29.06.2013 at 11.00 P.M. accused with an intention to kill deceased/Ansar
Afranishath poured kerosene on her, litted fire, bolted the door, on raising cries by deceased/Ansar Afranishath, accused poured water on fire and subsided fire after the arrival of neighbours which clearly indicates the intention of accused in pouring kerosene on the deceased/Ansar Afranishath and litting fire to the deceased/Ansar Afranishath to cause death of deceased/Ansar Afranishath.
35.Section 299 Culpable homicide: whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 300. Murder: Firstly: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
Secondly:- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
Thirdly :- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 27 S.C.No.233/2014
dated 31.01.2023
Fourthly:- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause of death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
36.In the instant case, the accused with an intention of causing death of the deceased/Ansar Afranishath poured kerosene on her and set fire to her by dropping a litted match stick on her which resulted in sustaining burn injuries to the deceased/Ansar Afranishath and there is no sudden and grave provocation in doing such act and the said act done by the accused does not fall within the exceptions provided under section 300 I.P.C and thereby the prosecution proved the guilt of the accused for the charged offence under section 302 I.P.C beyond reasonable doubt and thereby accused is liable to be convicted for the offence under section 302 I.P.C.
From the evidence on record, there is no positive evidence to show that it is a case of deliberate dowry death and prosecution failed to prove the guilt of accused for the charged offence under section 304-B I.P.C beyond reasonable doubt.
37.In view of the findings on the above points no.1 and 2, it is clear that the prosecution proved the guilt of the accused for the offence under section 302 of IPC beyond all reasonable doubt and this Court found the accused guilty for the offence under section 302 of IPC and accused is liable to be convicted under section 235(2) of Cr.P.C and accused is found not 28 S.C.No.233/2014
dated 31.01.2023
guilty for the offence punishable under section 304-B of IPC and accused is acquitted under section 235(1) Cr.P.C.
Dictated to Stenographer-I, transcribed by her, corrected and pronounced
by me in Open court, this the 31 st day of January, 2023.
Sd/- Ciripireddy Suma
VIII Additional District & Sessions Judge-cum-
Special Judge for trial of offences against
Women, Nellore.
QUESTIONING REGARDING QUANTUM OF SENTENCE:
38.When questioned the accused regarding quantum of sentence, he stated that he is the only son to his parents. His father is suffering from paralysis stroke and his mother is old aged woman suffering from ear problem and other ailments. He is the sole bread winner of his entire family.
If he went behind the bars there is none to look after the welfare of his old aged parents, pleaded mercy of the Court and prays to take a lenient view.
Taking into consideration the facts and circumstances of the case and in view of gravity of the offence, no lenient view is taken.
39.Keeping in view of the same and on perusal of the record, it is clear that this case does not fall under the category of rarest of rare cases as per Judgment of the Hon’ble Apex Court in Brinjendra Singh Vs. State of
Madhya Pradesh, 2013 (2) SCJ-264 and also 2012(8) SCJ 922. Hence the question of death penalty does not arise.
40.In the result, Accused is found guilty for the offence punishable under section 302 of Indian Penal Code and he is convicted under section 235 (2) of Cr.P.C. Accused is found not guilty for the offence punishable 29 S.C.No.233/2014
dated 31.01.2023
under section 304-B of Indian Penal Code and he is acquitted under section 235 (1) of Cr.P.C.
41.Accused is sentenced to undergo rigorous imprisonment for life and sentenced to pay fine of Rs.5000/-(Rupees five thousand only), in default, simple imprisonment for six (6) months.
42.The set-off period does not arise, since the accused is convicted for life imprisonment for the above said offence.
43.M.O.1-white plastic can of 5 liters capacity containing 2 liters of kerosene, M.O.2-Match box with match sticks, M.O.3-Pieces of nighty,
M.O.4-Black bra, M.O.5-Underwear and M.O.6-T shirt seized in this case in
C.P.R.No.71/2019 shall be destroyed after expiry of appeal time.
44.Accused is apprised of his right to prefer appeal against the
Judgment of this Court.
Dictated to Stenographer-I, transcribed by her, corrected and pronounced
by me in Open court, this the 31 st day of January, 2023.
Sd/- Ciripireddy Suma
VIII Additional District & Sessions Judge-cum-
Special Judge for trial of offences against
Women, Nellore.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution :
P.W.1 : S. Ansar Basha 30 S.C.No.233/2014
dated 31.01.2023
P.W.2 : A. Balkis
P.W.3 : Sk. Masthan
P.W.4 : S. Phalani
P.W.5: S. Selvam, Photographer.
P.W.6 : I. Muni Lakshmi, Tahsildar
P.W.7 : Ch. Prabhakar Vardhan, A.S.I., Tada Police Station.
P.W.8 : B. Radhakrishna Reddy, Village Revenue Officer.
P.W.9 : K. Rama Krishnaiah, Village Revenue Officer.
P.W.10 : P. Janardhan, Police Constable.
P.W.11 : G. Jayavelu, the then 16th Metropolitan Magistrate
P.W.12 : Dr. K. Vinoth
P.W.13 : M. Nageswara Rao, Sub Inspector of Police, Tada Police Station.
P.W.14 : Dr. S. Balamuragan
P.W.15 : K. Choudeswari, Sub Divisional Police Officer, Gudur
For Defence : -None -
Documents Marked
For Prosecution :
Ex.P.1 : Affidavit of the accused regarding conversion of religion from Christianity to Muslim dated 29.09.2012.
Ex.P.2 : Marriage certificate of deceased dated 14.10.2012 issued by Khaji, Ambur Mosque.
Ex.P.3 : 4 colour photos with C.D.
Ex.P.4 : Inquest report dated 5.7.2013 at 3.30 P.M.
Ex.P.5 : Statement of deceased/Ansar Afranishath 31 S.C.No.233/2014
dated 31.01.2023
Ex.P.6 : Requisition to Magistrate to record dying declaration of deceased.
Ex.P.7 : F.I.R in Cr.No.109/2013 of Tada Police station dated 2.7.2013.
Ex.P8 : Scene observation-cum-seizure mahazarnama
Ex.P9 : Rough sketch of scene of offence.
Ex.P10 : Mahazarnama dated 5.7.2013 at 5.30 P.M.
Ex.P11 : Arrest mahazarnama dated 8.7.2013 at 10.00 P.M.
Ex.P12 : 161 Cr.P.C statement of deceased/Ansar Afranishath.
Ex.P13 : Requisition of Station House Officer, Tada Police station dated 1.7.2013.
Ex.P14 : Dying declaration of victim recorded by P.W.11.
Ex.P15 : Letter from XVI Metropolitan Magistrate.
Ex.P16 : Postmortem certificate.
Ex.P17 : Death intimation.
Ex.P18: Altered F.I.R. adding sections 304-B and 302 I.P.C..
Ex.P19 : RFSL report dated 19.10.2013.
For Defence :-
Ex.D1 : A portion of 161 Cr.P.C statement of P.W.1
Ex.D2 : A portion of 161 Cr.P.C statement of P.W.1
Ex.D3 : A portion of 161 Cr.P.C statement of P.W.2.
MATERIAL OBJECTS MARKED
M.O.1 :White plastic can of 5 liters capacity containing 2 liters of kerosene.
M.O.2 :Match box with match sticks.
M.O.3 : Pieces of nighty 32 S.C.No.233/2014
dated 31.01.2023
M.O.4 :Black bra
M.O.5 :Underwear
M.O.6 :T shirt.
Sd/- Ciripireddy Suma
VIII Additional District & Sessions Judge-
cum-Special Judge for trial of offences against Women, Nellore.
Copy submitted to: -
1. The Hon’ble Registrar (Judicial), High Court of Andhra Pradesh, Nelapadu, Amaravathi, Guntur District.
2.The Hon’ble Principal District and Sessions Judge, Nellore.
Copies to: -
3. The Additional Judicial Magistrate of I Class, Sullurpet.
4. The Additional Public Prosecutor, Nellore.
//True copy//
VIII Additional District & Sessions Judge- cum-Special Judge for trial of offences against Women, Nellore.
33 S.C.No.233/2014
dated 31.01.2023