S.C.No.343/2017.
IN THE COURT OF THE ASSISTANT SESSIONS JUDGE ZAHEERABAD
MEDAK DISTRICT.
PRESENT: D. DURGA PRASAD
MA.,MHRM,PGDCL.,LLM
ASSISTANT SESSIONS JUDGE, ZAHEERABAD
Thursday, this the 12th day of May, 2022.
S.C.No. 343/2017
PRC., Cr. No. & P.S:PRC.No.25/2017,Cr.No.61/2019 of PS. Zaheerabad Rural.
Case Committed By:Sri. Mohd. Yousuf, Judicial Magistrate of First Class Zaheerabad.
Name of the accused:Erukali Ashok S/o Manaiah, Age:30years, Caste: Erukala, Occ: Labour, R/o Anegunta village, Zaheerabad Mandal.
offence of charge: U/s.498A, 306 of IPC.
Plea of accused: Pleaded not guilty.
Finding of the Court : Found guilty.
Sentence of order: In the result, I find the accused guilty of the offence punishable U/s. 498(A), 306 IPC and thus I convict him for the said offences U/s. 235(2) Cr.P.C. The case property Kerosene can vide MO1, Match box vide MO2 shall be destroyed after the appeal time is over.
Hence Accused is sentenced to undergo RIGOROUS IMPRISONMENT for period of TWO YEARS for the offence punishable under section 498 A IPC and Accused is directed to pay a FINE of Rs 1000/ ( THOUSAND rupees only) in default to under go Simple imprisonment for three months under section 235(2) CrPc, for the offence under section 498 A IPC. Accused is further sentenced to undergo RIGOROUS IMPRISONMENT for period of six SIX YEARS for the offence punishable under section 306 IPC and Accused
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S.C.No.343/2017. is directed to pay a FINE of Rs 1000/ ( THOUSAND rupees only) in default to under go Simple imprisonment for three months under section 235(2) CrPc, for the offence under section 306 IPC. Both the sentences shall run concurrently. The accused languished in Jail from22 082017 to 15112017 (86days). Accused is entitled to the benefit of setoff under section 428 of Cr.P.C for the period undergone as under trail prisoner. Accused is informed about his right of appeal and if he has no means to engage a counsel to prefer appeal, he is at liberty to approach the District Legal services authority , Medak At sanga reddy.
Prosecution conducted by :Sri. Solomon, Additional Public Prosecutor.
Accused defended by: Learned counsel Sri. B. Anjaiah. __________________________________________________________________
This case is coming on this day before me for final hearing in the presence of learned Addl.P.P., and of Sri. B. Anjaiah, learned Legal Aid Counsel for the accused, upon perusing the material on record and upon hearing arguments, the court delivered the following:
JUDGMENT
The subInspector of Police, PS. Zaheerabad Rural, has filed charge sheet against the accused for the offence U/s. 498A, 306 of IPC.
CASE OF THE PROSECUTION:
1. The brief averments of the Prosecution are that on 28.07.2017 at 08.30 hrs, the complainant Smt. Erukali Bujjamma w/o Shivaiah, age: 45 yrs, caste: Erukala, occ: labour, r/o Sangapur village of Raikode mandal came to Police Station and lodged a Telugu written complaint in which she stated that about five years back, she performed her daughter E. Kavitha, age:24 yrs marriage with E. Ashok/Accused S/o Manaiah, age 30 yrs, occ:
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S.C.No.343/2017. Labour, r/o Anegunta village of Zaheerabad mandal, and they were blessed with daughter namely E. Shivani, aged: 03 years. Since some days, her son in law Ashok is addicted to alcohol and started harassing her alleging that she is maintaining illegal contact with some others. Even after conducting many panchayath's, her son in law did not change his attitude. Due to harassment, one year back her daughter came to her house, and 12 days back she convinced her daughter and sent to her in law's house. Even then his son in law did not change his attitude and harassed her daughter.
On 25.07.2017 in the afternoon, she came to know that her daughter
Kavitha poured kerosene on herself and lit fire, then her daughter's husband, and in laws stopped the fires and shifted her to the Govt hospital,
Zaheerabad. After receiving information, immediately she went to
Govt.hospital, Zaheerabad and found her daughter with burnt injuries. On enquiry her daughter told with her that "Her husband Ashok by consuming alcohol harassed her, due to which she poured kerosene by herself and a ablazed fire". Later they shifted the victim to Gandhi hospital,
Secunderabad. While undergoing treatment in Gandhi hospital,
Secunderabad, her daughter Kavitha died on 28.07.2017 at 01.30 hrs.
Further she stated that due to unbearable harassment of her son in law, her daughter committed suicide by burning. Thus she requested to take necessary action on her son in law/Ashok.
2. Basing on the above complaint, Lw13 SIP Zaheerabad rural registered a case in Crime No. 61/2017, U/s.498(A), 306 IPC and took up the investigation. He examined complainant/Lw1 and recorded her
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S.C.No.343/2017. detailed statement in case diary partII, then Lw13 filed a requisition to
Lw11 Tahsildar, Zaheerabad with a request to conduct Inquest over the dead body of the deceased. Later Lw13 along with Lw11 and PC 474 visited Gandhi hospital, Secunderabad and examined blood relatives of the deceased i.e. Lw2 to 5 and recorded their detailed statements in case diary part II. Then Lw11/Tahsildar Zaheerabad secured three mediators i.e. Lw 8 to 10 and conducted Inquest over the dead body of the deceased Erukala
Kavitha w/o Ashok, age 24 yrs, in their presence. After inquest dead body was sent for autopsy under escort of PC 474 of PS Zaheerabad rural, after autopsy dead body wasv handed over to her relatives for final rites, after obtaining proper acknowledgment.
3. Lw13 visited the scene of offence which is situated at Anegunta village, in the house of Erukali Manaiah, vide H.No.192 and secured two persons as mediators i.e. Lw6 and 7 and observed scene of offence minutely and conducted scene of offence panchanama in their presence and seized kerosene box, matches box from the scene of offence.
4.While investigation is in progress, on 22.08.2017 on reliable information, Lw13 along with staff rushed to Anegunta village, and apprehended the accused at Anegunta bus stand at 10.30 hrs and on thorough interrogation, the accused confessed his guilty of offence, then the Lw13 brought him to police station and affected his arrest at 12.30 hrs and issued arrest memo, and informed his arrest to his relatives and issued
U/S 50 Cr.P.C. and 50(ii) Cr.P.C. and sent to judicial remand.
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S.C.No.343/2017.
5. Later, Lw 13 deposited seized property i.e. one kerosene box and matches box in the court vide CPR No. 345| 15 |2017. He received detail
PME report in respect of deceased Erukala Kavitha w/o Ashok, age 24 yrs, from the Lw12 medical officer Dr. G. Lavanya Kowsik, Asst. Professor,
Gandhi Medical college, Secundrabad who conducted autopsy over the dead body of the deceased and issued PME report opined that the cause of death is due to "BURNS".
Before registration of case on 25.07.2017 in the afternoon when
deceased admitted in Govt. hosptial, Zaheerabad with burn injuries, the medical officer informed the same to the Lw13 , then Lw13 filed a requisition to the Hon'ble Judicial First Class Magistrate, Zaheerabad to conduct dying declaraion. As per the request of Lw13, the Hon'ble Judicial
First Class Magistrate, Zaheerabad conducted dying declaration of the
victim(deceaced) on same day. Thus the accused has committed an offence punishable u/s 498(A), 306 IPC and then filed the charge sheet against the accused.
6. This case was taken on file U/s.498(A), 306 IPC, against the accused by the committal court.
7. On appearance of the accused, copies of the documents were furnished to him U/s.207 Cr.P.C. Subsequently on perusal of the record, the committal court committed the case to the Court of sessions, and in turn, this case is made over to this Court for disposal according to law.
8. On appearance of the accused before this court, the accused is examined U/s.228 Cr.P.C., for which he denied the offence, and upon
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S.C.No.343/2017. consideration charge U/s.498(A), 306 IPC, has been framed, read over and explained to the accused in his own language, for which, he denied the charge, pleaded not guilty, and claimed to be tried as per law.
9. During the course of trial, the prosecution examined PW1 to PW10 of which PW1. Smt. Erukali Bujjamma is the complainant and mother of the deceased., PW2. E. Ramesh is the uncle of the deceased.,
PW3. E. Yellaiah is the Maternal father in law., PW4. Sri. Burdipuram Ashok is the panch for scene of offence., PW5.Sri. Pogaku Nagishetty and
PW6.Komari Jagadeesh are the panch for inquest., PW7.Sri Md. Yousuf is the learned Magistrate, PW8.Smt. B. Geetha is the conducted inquest.,
PW9.Dr. Lavanya Kowsik is the conducted autopsy., PW10. K. Srikanth is the
Investigating Officer.
10. The prosecution also relied on Ex.P1 to P9 documents vide Ex.P1 is the complaint., Ex.P2 is the 161 Cr.P.C statement, Ex.P3 is the scene of offence cum seizure panchanama., Ex.P4 is the Inquest panchanama., Ex.P5 is the requisition, Ex.P6 is the dying declaration, Ex.P7 is the Inquest panchanama., Ex.P8 is the PME report, Ex.P9 FIR. The prosecution also relied on material object vide MO1 Kerosene can and MO2 Match box.
11. After closure of the prosecution evidence, the accused is examined
U/s.313 Cr.P.C. The incriminating evidence and the circumstances that appeared against him in the prosecution evidence is read over and explained to the accused and he denied the same and submitted that he has no defence witness and no exhibits were marked on his behalf.
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S.C.No.343/2017.
12. Heard the learned Addl. P.P. and the legal aid counsel for the accused. Perused the record. The learned Legal Aid Counsel filed citation to prove his version.
13. Now the points that arises for determination are that:
1. Now the point for determination is whether the prosecution is able to prove the guilty of the accused beyond all the reasonable doubt for offences
U/s. 498 A IPC?
2. Now the point for determination is whether the prosecution is able to prove the guilty of the accused beyond all the reasonable doubt for offences U/s.
306 IPC
3. Whether the prosecution proved the guilty of the accused herein beyond all reasonable doubt?
PROSECUTION WITNESS EXAMINED:
14. PW1 who is the mother of the deceased and she stated that about 5 years back, they performed the marriage of the deceased with the accused as per caste and customs. Out of the wedlock, they are blessed with one girl child. They lived happily for about 3 years after marriage. Both the deceased and accused use to quarrel with each other as the accused used to come home daily in drunken condition. Accused used to beat her daughter in drunken condition daily. He never provided food to her daughter. Unable to bear the harassment of the accused, her daughter committed suicide by burning her self. Accused is responsible for death of her daughter. Her daughter after burning herself she was taken to the hospital and after 3 days of treatment in the hospital she expired.
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S.C.No.343/2017.
15. It is the version of PW2 that about 1 ½ year back she committed suicide by burning herself due to clashes between her and her husband/accused. About 5 years back Pw1 and Lw2/E. performed marriage of the deceased with the accused as per caste and customs. Out of the wedlock they are blessed with one girl child. After marriage, for three years they lived happily. Both deceased and accused use to quarrel with each other due to accused coming to the house daily in drunken condition. He was informed that the deceased was harassed by accused daily.
16. PW4 testified that Police conducted Scene of offence panchanama in his presence and in the presence of S. Narsimulu/Lw6 in front of accused house. Police prepared scene of offence panchanama in their presence with regard to suicide of wife of accused by burning. Police read over its contents to them and police seized one Kerosene can 5 litres and one match box by duly affixing panch chits to it and they signed on said panchanama and panch chits by knowing its contents.
17. PW5 evidence shows that police Zaheerabad(R) conducted and prepared Inquest panchanama of deceased/wife of accused at Gandhi
Hospital Secunderabad about 2 years back approximately and Police prepared inquest panchanama of the deceased in their presence and after its contents are read over to them, they signed on it. He came to know that deceased committed suicide by setting herself ablaze.
18. It is the version of PW6 that on the request of police he was present at Gandhi Hospital Secunderabad about 2 years back. The
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S.C.No.343/2017. Zaheerabad rural Police conducted inquest panchanama over the dead body of the deceased Kavitha and police prepared inquest panchanama of the deceased, read over its contents to with them and they signed on it. The deceased committed suicide by setting herself ablaze.
19. PW7, the learned Magistrate deposed that on 25.07.2015 at 5.40
PM he received a requisition from SHO Zaheerabad Rural to conduct Dying
Declaration of Smt kavitha. He Immediately rushed to the govt hospital
Zaheerabad and with the help of the duty doctor, he identified the victim.
Through Doctor Seshu Padmanbha Rao, he came to know that the declarant is in dressing room and then he proceeded there. There is no one there except himself and duty doctor during recording of the statement of the victim. After posing preliminary questions with the declarant he is satisfied that the declarant is conscious, coherent and in fit state of mind to give statement. He has also taken certificate for the same from the duty doctor.
Then he proceeded to record the Dying declaration of Smt kavitha and concluded the Dying declaration at 6.20 Pm and obtained the RTI of the declarant.
20. Pw8 testified that police conducted Inquest panchanama on the deceased in the Gandhi hospital, in the year 2017 over the dead body of
Kavitha on the request of Zaheerabad Town police.
21. It is the version of Pw9 that on 28.07.2017 she received requisition from SI of Police, PS. Zaheerabad rural at 14:00 hours to conduct autopsy over the dead body of the deceased by name Smt Kavitha w/o
Ashok and on the same day she conducted autopsy from 14:15 hours to
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S.C.No.343/2017. 16.00 hours and she found the ante mortem injuries as noted in column 9 of PME report. The approximate time of death is about 16 hours before
PME. The cause of death is due to burns and complications.
22. Pw10 testified that after registering the case, he examined Pw1 at police station and later filed requisition to Tashildar for conducting Inquest panchanama. Later he visited Gandhi hospital along with Tashildar and recorded the statement of Lw2 to 5 at Gandhi hospital. There after
Tashildar, Zaheerabad conducted Inquest in the presence of panch witness and then he filed the requisition to duty doctor and got conducted Post
Mortem examination. Later he visited scene of offence and conducted scene of offence cum seizure panchanama and drawn rough sketch and seized kerosene can, match box. On 2282017 at 10.30 am, he apprehended the accused and arrested him and then sent him to the court for remand. Before registering the FIR on 2572017 he received medical information from Govt hospital Zaheerabad about one women burning case. He filed requisition to learned magistrate for recording Dying declaration and Learned magistrate recorded the same. After collecting Dying declaration, he filed the charge sheet.
POINT No.1 to 3:
23. In order to prove its case, the prosecution has examined PW1 to
10. The learned APP has given up the evidence of LW6 Sri.S. Narsimulu,
LW10 Smt. M. Narsamma, and the court has closed the evidence of LW5 E.
Narsimulu as the prosecution filed the report that LW5 E. Narsimulu died.
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S.C.No.343/2017.
24.Section 498A Indian Penal Code "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Section 306 in The Indian Penal Code "If any person commits suicide, Whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
25. PW1 is the defacto complainant who is the mother of the deceased and who has moved law into motion by way of giving report to the police vide Ex.P1 which is registered as FIR vide Ex.P9. The oral evidence of
PW1 appears that the deceased Kavitha is the daughter, and about 5 years back, they performed the marriage of the deceased with the accused as per caste and customs, and out of wedlock they are blessed with one girl. After the marriage they lived happily for about 3 years. Both the deceased and
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S.C.No.343/2017. accused used to quarrel with each other as the accused used to come home in drunken state and beat her daughter in drunken state and he never provided food to her daughter. As she is unable to bear the harassment by the accused her daughter committed suicide by burning herself as such the accused is responsible for the death of her daughter. Pw1 further stated that her daughter informed her about the harassment when she was in the hospital and after 3 days of treatment at hospital her daughter died. PW2 lends assurance to the evidence of PW1 but he stated that he was informed about the death of the deceased. Pw3 who is the maternal Father in law turned hostile, not supporting the case of the prosecution and he resiled from his statement vide Ex.P2 161 Cr.P.C. statement.
26. Ex.P1 is the report which is the vital document and it appears that after the marriage, the accused used to harass the deceased alleging that she is maintaining illegal contacts with some others and he did not change even after many panchayaths, and about one year back her daughter came and about 12 days back, she convinced the daughter and sent her to the in laws house. The report further shows that even then her son in law did not change his attitude and harassed her as such on 25072017 in the afternoon, she came to know the Kavitha poured kerosene and lit fire, and then her daughters husband and in laws stopped the fire and shifted her to the government hospital, Zaheerabad. After receiving information she immediately went the government hospital, zaheerabad and found her daughter with burnt injuries and on enquiry, her daughter told that her husband Ashok by consuming alcohol harassed her and she set ablaze and
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S.C.No.343/2017. later she was shifted to the Gandhi hospital. While under going treatment in the hospital her daughter died on 28072017 at 01:30 hours. Thus as she is not able to bear the harassment of her son in law, her daughter committed suicide by burning. So, the contents of Ex.P1 are reiterated in the oral evidence of PW1. As mentioned above the oral evidence of PW1 is supported by the evidence of PW2 though he stated that he came to know about the incident.
27. Before, I scan and scrutinize the evidence of PW1 and 2, I may be permitted to scan the evidence of other witness examined by the prosecution.
28. It is the version of PW10 who is the investigating officer that after examining PW1 at police station, he filed a requisition to the Tahsildar for conducting Inquest panchanama. Later he visited Gandhi hospital along with the Tahsildar and recorded the statement of PW1. Smt. Erukali Bujjamma,
PW2. E. Ramesh, PW3. E. Yellaiah, Pw4. Sri. Burdipuram Ashok, PW5.Sri.
Pogaku Nagishetty. There after, the Tahsildar zaheerabad has conducted the
Inquest in the presence of panch witness and then he gave requisition to the doctor and got conducted postmortem. He visited the scene of offence and he conducted the scene of offence cum seizure panchanama and rough sketch and seized plastic bottle, match box. On 22082017 at 2:30 AM he arrested the accused and send him to the court for remand. PW10 further stated that before registering the FIR on 25072017, he received the medical information from the government hospital at zaheerabad pertaining to women burning case and he filed the requisition to the learned magistrate
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S.C.No.343/2017. to record the dying declaration and then the learned Magistrater recorded the statement of the victim, and after completion of investigation PW10 filed the charge sheet.
29. PW4 is one of the panch witness for the scene of offence panchanama where he stated that police conducted scene of offence panchanama in his presence and in the presence of S. Narsimulu/LW6 in front of accused house and police prepared the scene of offence panchanama in their presence with regard to the suicide of wife of the accused by burning herself and the contents of panchanama are read over to them and police seized kerosene can of 5 liters, one match box duly affixing the panch chits to it. The prosecution has got marked Ex.P3 scene of offence cum seizure panchanama and kerosene can vide MO1 and one match box vide MO2 through PW4. The other panch witness LW6/S. Narsimulu evidence is given up by the learned APP.
30. The recitals of Ex.P3 "scene of offence cum seizure panchanama" shows that
On 2507017 at 2:30 PM, the accused came in drunken state and abused the victim and she poured kerosene on herself and later joined in the hospital. On 20072014 at 01:30 hours she died. They observed the scene of offence and mentioned the boundaries of the scene of offence and found kerosene can and match box and also some of the roof was burnt and it was black and that the ground was wet with kerosene smell.
31. Further, the rough sketch discloses that the place of incident was beside the road and the match box, kerosene can are mentioned in the rough sketch. The rough sketch is not disputed by the learned counsel and even no suggestion was made denying drafting of rough sketch.
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S.C.No.343/2017.
32.During the cross examination, it is clearly elicited that at the time of said panchanama PW4 and LW6/S.Narsimulu were present and no others are present, and the said panchanama was conducted at 3:00 PM and also they have not seen dead body of the deceased. It is not fatal on part of the prosecution if the dead body's is not seen by the panch witness and the minor contradiction pertaining to the time of conducting panchanama is not fatal to the case of the prosecution.
33. PW4 admitted the police has shown the kerosene can and match box and also the witness stated that the smell was coming of the kerosene can. So, it is clearly established by the prosecution that the kerosene can and match box is seized from the place of incident as the witness himself stated that he could smell the kerosene smell from kerosene can. The version of PW4 that police has read over the contents and they signed on the panchanama after the panchanama is being prepared in their presence and also he has smelled the kerosene from the seized can crystal clearly establishes the version of PW4. As such the prosecution could prove and established that PW10 has been to the scene of offence and conducted the scene of offence cum seizure panchanama vide Ex.P3 and seized the keresone can vide MO1 and match box vide MO2 from the scene of offence in the presence panch witness of PW4 and LW6/S. Narasimhulu.
34. The other panch witness are PW5 and PW6 and they are the panch witness from the Inquest panchanama. They stated in the same tone that the police prepared Inquest panchanama of the accused wife at Gandhi hospital about 2 years back approximately and the contents are read over to
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S.C.No.343/2017. them and they signed on the panchanama and also PW5 stated that they came to know the deceased committed suicide by setting herself ablaze. The learned counsel reported no cross examination for PW5. When cross examined PW6 categorically stated that he went to the Gandhi hospital after deceased met with burns as police called him but he do not know the subsequent events. As such nothing contra is elicited from the testimonies of
PW5 and 6.
The para 9 of the Inquest panchanama shows that on 25072017 at 2:30 hours, the accused came in drunken state and abused her and she set herself ablaze by pouring kerosene and then the inlaws and the accused came and stoped the fire and shifted her to the hospital and on the next day she died due to injuries.
35. In the same manner, PW8 who is the Tahsildar and who conducted the Inquest panchanama stated he conducted Inquest panchanama of the deceased in the Gandhi hospital in the year 2017 over the dead body of
Kavitha on the request of Zaheerabad town police. During his cross examination he stated that he got the requisition on 28072008 and he received information on whatsaap, and then he went to the hospital alone where Zaheerabad police constable No.468 shown the dead body to him and the body of the deceased covered in the blanket and half of the body of the deceased is burnt and that he has mentioned the burns of the body in the panchanama. The panch witness mentioned the report are present at the time of Inquest and he do not remember whether the panch witness belongs to Anegunta village or not and further stated that the panchanama is scribed in format given by the constable. The version of PW8 is substantiated by the version of PW5 and 6 which are not shaken as such the version of PW5 and
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S.C.No.343/2017. 6 coupled with the oral evidence of Pw8 and Ex.P5 establishes that PW10 has got conducted the Inquest panchanama over the deceased body.
36.Now coming to the material witness PW1 and 2, during the cross examination PW1 stated that the police scribed the complaint given by her and she admitted that she do not know the contents of the complaint and further stated that the deceased while under going treatment at Gandhi hospital informed her that she set herself ablaze. The version of Pw1 that her daughter informed her that she poured kerosene as she is unable to bear the harassment of the accused is not shaken. It is further elicited that she was informed by the accused that her daughter is being shifted to the government hospital and she has not given any complaint to the police but police has prepared the complaint.
37. PW1 is 47 years old and she is illetrate and there is no dispute pertaining to the death of the deceased by setting herself ablaze. Though it is elicited that she do not know the contents of the complaint, that does not wash off the case of the prosecution as the crux of the case is that the deceased set herself ablaze by the prosecution is established not only through panch witness for the scene of offence but also through the panch witness of the inquest panchanama. Further the version of Pw9 appears that on 28.07.2017 she received requisition from SI of Police, PS. Zaheerabad rural at 14:00 hours to conduct autopsy over the dead body of the deceased by name Smt Kavitha w/o Ashok and on the same day she conducted autopsy from 14:15 hours to 16.00 hours and she found the ante mortem injuries as noted in column 9 of PME report and the approximate time of
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S.C.No.343/2017. death is about 16:00 hours before PME and that the cause of death is due to burns and complications.
Ex.P8 is the PME report which shows that the deceased received burnsof 82 percent and the age of the burns is 4 days and the ante mortem injuries are mentioned in column No.9 of PME report. It shows that lower half of the face and neck, front back of the chest, both upper limps and four arms, back of both thies, both lower limps and knee level till ankle are burnt and the doctor opined that the death is due to burns and its complications.
38. Nothing contra is elicited from the testimony of PW9. Even it is elicited from the cross examination of PW1 that the deceased while under going treatment at Gandhi hospital informed Pw1 that she set her herself a ablaze as such the prosecution clearly and categorically established before the court that deceased died by setting herself by pouring kerosene.
39. The counsel for the accused contended orally in his arguments that conviction cannot be laid only basing on the dying declaration unless corroborated by the material witness evidence. The learned counsel relied on the authority reported in 2012 LF(Gujarat) 1943 Jayendra @ Somsinh
Dipsinh Rathod V/s State of Gujarat where it is held that "The complaint is filed by the injured victimKokilaben, herself, during her lifetime, and thereafter, she has succumbed to the injuries and expired on 13102006. The registration of the complaint, if considered, in light of the evidence of Dr.P.K. Shah (P.W.1), (Exhibit10), Dr. Kishor Pramodrai Desai (P.W.2), Exhibit13, Dr. Chandrahas Keshavrao Siknawis (P.W.11), (Exhibit 36), Dr. Ramesh the victim tried to caught hold of the accused, he had run away, without making any attempt to extinguish the fire. The entire evidence led by the prosecution, in our view, shows that accused had premeditation to
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S.C.No.343/2017. kill the victim and in furtherance of his intention he poured kerosene and set on fire. Therefore, in our view, it is a case where the ofence is proved under section 302 of the Indian Penal Code and not a case which may fall under section 304 (PartI or II) of the Indian Penal Code. Once, the offence is proved under section302 of the Indian Penal Code, the minimum sentence is imprisonment for life, which as been imposed by the learned Sessions Judge and the fine is also imposed of Rs.2,000/. Under the circumstances, the contentions raised by the learned counsel for the appellant cannot be accepted.
There is a clear distinction between the principles governing the evaluation of a dying declaration under the English law and the Indian law.
Under the English law, credence and relevancy of a dying declaration is only when the person making such a statement is in hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declaration should have been made when in the actual danger of death and that the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, whether the person who makes it was or was not under expectation of death at the time of such declaration. The dying declaration is admissible not only in the case of homicide but also in civil suits. The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri ( a man will not meet his maker with a lie in his mouth).
The law is wellsettled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying
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S.C.No.343/2017. declaration, if found reliable, can form the basis of a conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the court, the same may be refused to be accepted as forming basis of the conviction.
Another consideration that may weigh with the court, of course with reference to the facts of a given case, is whether the dying declaration has been able to bring a confidence thereupon or not, is it trustworthy or is merely an attempt to cover up the latches of investigation. It must allure the satisfaction of the court that reliance ought to be placed thereon rather than distrust. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See
State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.) As such, the conviction can be based on the dying declaration, once, it is found to be trustworthy".
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S.C.No.343/2017.
40. In the instant case, the vital witness available for the prosecution apart from material witness is PW7. PW7 who is the learned magistrate and who has recorded the dying declaration stated that on 25072015 and 5:50 PM he received requisition from SHO zaheerabad rural police station to conduct dying declaration of Smt.
Kavitha and immediately he rushed to the government hospital and identified the victim with the help of the duty doctor. He stated that except himself and duty doctor, no others are present while the recording the statement of the victim and he has taken the certificate from the duty doctor that she is in fit state of mind, conscious and coherent to give the statement and he concluded the dying declaration at 6:20 PM and obtained the Right thumb impression of the declarant.
Ex.P5 is the requisition and Ex.P6 is the dying declaration. Nothing contra is elicited from the testimony of the PW7 except the version that the percentage of burns is not mentioned.
41. Though PW7 has not mentioned the percentage of the burns, it is not fatal to the case of the prosecution as Ex.P8 which has been conducted by PW9 categorically shows that 82% of burns are there on the injured.
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S.C.No.343/2017. 42.
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S.C.No.343/2017.
43. So, as seen from the vital document Ex.P6 it appears that since three days her husband is coming in drunken state and used to say to her to die, and abused her on Sunday and he poured kerosene on her and then he also poured on himself, then the public came and pacified the situation. On the day of the incident the husband came in drunken state and stated that he will pour kerosene, abused her and he did the harassment till 3:00 PM.
As such she is not able to bear the harassment, she has poured kerosene on herself and set ablaze and immediately her husband, her in laws came to rescue. So the dying declaration which is the vital document for the entire case of the prosecution has substantiated the version of the material witness that the accused led the deceased to commit suicide by pouring kerosene and set ablaze. Thus the vital document vide Ex.P6 clearly shows that accused is the caused for the victim to commit suicide. Even it is not flaw on the prosecution, if the investigating officer has not recorded any statement as he clearly admitted that dying declaration was recorded by the learned
magistrate/PW7 and it is elicited that he received information from the
hospital which establishes that dying declaration was recorded by the learned magistrate.
44. From the facts mentioned above, the prosecution could demonstrate before the court that the cause for the deceased to commit suicide. The medical evidence supports the case of the prosecution that, burn injuries were received by the deceased, and thereafter victim having succumbed to the injuries expired. The recovery of various items from the
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S.C.No.343/2017. scene of the offence read with the scientific evidence, corroborates the case of the prosecution.
45. In a given case, when the Court finds that the contents of the dying declaration are to be further examined, court may seek the corroboration of other evidence before relying upon the dying declaration.
In the present case, the statement made in the complaint as well as dying declaration recorded by the learned Magistrate show that (1) the deceased was in conscious condition, (2) therefore, she could be termed as in a position to make statement
before the Magistrate,
(3) further, the Magistrate in dying declaration has recorded that, as per the opinion of the doctor, the patient is in conscious condition to make a declaration, (4) there is, further, corroboration of the burn injuries received by the deceased and that aspect is proved by the prosecution, (5) the use of the kerosene, various items recovered from the scene of offence, the scientific evidence, also corroborates the statement made by the victim in the dying declaration.
Under the circumstances, I find that when the dying declaration of the victimdeceased is getting corroboration from the various other evidences brought on record by the prosecution, it is not a case, where dying declaration deserves to be discarded for the purpose of considering the case of the prosecution nor it is a case where it can be said that the case of the
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S.C.No.343/2017. prosecution is frustrated on account of the dying declaration, which has come on record.
The Apex Court in the case of "BHAJJU @ KARAN SINGH VS. STATE
OF M.P., 2012 4 SCC 327" wherein the Apex Court observed at paragraphs 22 to 30 as under:
"The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused.
Section 32 of the Indian Evidence Act, 1872 (for short 'the Act') is an exception to the general rule against the admissibility of hearsay evidence.
Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a 'dying declaration'.
46. The 'dying declaration' essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone.
47. In the present case, it can be said that there are ample corroborative evidences supporting statement made in the dying declaration
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S.C.No.343/2017. about role played by the accused for causing death of the deceased by pouring kerosene on her and by setting on fire, which ultimately resulted into taking away life of the deceased. So, it is not a case where the incident has taken place on account of sudden provocation. On the contrary, the prosecution proved that the accused used to come in drunken state and harass the deceased which led her to pour kerosene and set ablaze as such the authority placed by the learned counsel is not apt to the instant case.
48. From the above discussion, the evidence of the prosecution goes to show that the prosecution has been able to prove the case that the deceasedvictim received burn injuries on account of pouring kerosene due to harassment of the accused and thus the accusation against the accused for the offence U/s. 498A, 306 IPC is proved as such accused is liable for conviction.
49. In the result, I find the accused guilty of the offence punishable
U/s. 498(A), 306 IPC and thus I convict him for the said offences U/s.
235(2) Cr.P.C. The case property Kerosene can vide MO1, Match box vide
MO2 shall be destroyed subject to the result of appeal.
(Dictated to the Stenographer on computer, corrected and pronounced by me in the open Court on this the 12 th day of May, 2022.)
ASSISTANT SESSIONS JUDGE,
ZAHEERABAD.
50. Regarding quantum of Sentence when questioned the accused, learned
APP and the legal aid counsel for the accused:
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S.C.No.343/2017. A. Accused : I have my parents, my daughter to take care of and request the court to take lenient view.
B. Legal Aid Counsel for the accused : Accused is young and prayed to the court the court to take lenient view in imposing sentence as it is first offence.
c. The learned APP stated that this is a serious offence and the offence of such nature are not to be taken any lenient view.
51. Taking into consideration of the pleas raised by the accused, the legal aid counsel for the accused and of the prosecution, I am not of the opinion to take a lenient view in imposing the sentence as the offence is of grievous in nature and such incidents are alarming in the society leaving no hope for the women to stay safe.
52. Hence Accused is sentenced to undergoRIGOROUS
IMPRISONMENT for period of TWO YEARS for the offence punishable under section 498 A IPC and accused is directed to pay a FINE of Rs 1000/ ( THOUSAND rupees only) in default to under go Simple imprisonment for three months for the offence under section 498 A IPC, under section 235(2) Criminal procedure code.
Accused is further sentenced to undergo RIGOROUS IMPRISONMENT for period of six SIX YEARS for the offence punishable under section 306
IPC and accused is directed to pay a FINE of Rs 1000/ ( THOUSAND rupees only) in default to under go Simple imprisonment for three months for the offence under section 306 IPC, under section 235(2) Criminal procedure code. Both the sentences shall run concurrently.
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S.C.No.343/2017.
53. The accused languished in Jail from 22082017 to 15112017 (86days). Accused is entitled to the benefit of setoff under section 428 of
Cr.P.C for the period undergone as under trail prisoner. Accused is informed about his right of appeal, and if he has no means to engage a counsel to prefer appeal, he is at liberty to approach the District Legal services authority , Medak at Sanga reddy.
(Dictated to the Stenographer on computer, corrected and pronounced by me in the open Court on this the 12 th day of May, 2022.)
ASSISTANT SESSIONS JUDGE,
ZAHEERABAD.
APPENDIX OF EVIDENCE:
WITNESSES EXAMINED FOR
For Prosecution: For Defence: NIL
1. PW1. Smt. Erukali Bujjamma,
2. PW2. E. Ramesh,
3. PW3. E. Yellaiah,
4. PW4. Sri. Burdipuram Ashok,
5. PW5.Sri. Pogaku Nagishetty,
6. PW6.Komari Jagadeesh,
7. PW7.Sri Md. Yousuf
8. PW8.Smt. B. Geetha,
9. PW9.Dr. Lavanya Kowsik,
10. PW10. K. Srikanth.
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S.C.No.343/2017.
EXHIBITS MARKED:
For Prosecution: For Defence: NIL
1. Ex.P1.is the complaint.,
2. Ex.P2 is the 161 Cr.P.C.statement,
3. Ex.P3 is the scene of offence cum seizure panchanama.,
4. Ex.P4 is the inquest panchanama.,
5. Ex.P5 is the requisition,
6. Ex.P6 is the dying declaration,
7. Ex.P7 is the inquest panchanama.,
8. Ex.P8 is the PME report,
9. Ex.P9 FIR.
MATERIAL OBJECTS:
1. MO1 is the plastic bottle
2. MO2 is the match box.
ASSISTANT SESSIONS JUDGE,
ZAHEERABAD.
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