IN THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
WEST GODAVARI, ELURU.
PRESENT: Sri. M. Lakshminarayana, B.A., LL.M. I Additional District and Sessions Judge, West Godavari, Eluru.
Wednesday, the 16th day of May, 2012
SESSIONS CASE No. 254/2011
Name of the Accused and :Kella Laxmiparvathi, W/o.Srinivasa particularsRao, 30 years, Kapu, Ananthapalli Village, Nallajarla Mandal.
Charges:U/Sec. 302 of I.P.C.
Plea of the accused:Pleaded not guilty
Finding of the judge:In the result, the Accused is found not guilty of the charge under Sections 302 of I.P.C., and she is accordingly acquitted under Section 235 (1) Cr.P.C. The bail bonds of Accused, if any, shall stand cancelled. M.Os. 1 to 3 shall be destroyed after expiry of appeal time.
Date of Sentence or Order :16-05-2012
Order:In the result, the Accused is found not guilty of the charge under Sections 302 of I.P.C., and she is accordingly acquitted under Section 235 (1) Cr.P.C. The bail bonds of Accused, if any, shall stand cancelled. M.Os. 1 to 3 shall be destroyed after expiry of appeal time.
The prosecution is conducted by:Sri L. Ajay Prem Kumar, Addl. Public Prosecutor , West Godavari District, Eluru.
The accused is defended by:Sri P. David Raju, Advocate for the Accused. The case committed by :Smt. M. Kumudini, B.Com.,B.L., I Addl. Judicial Magistrate of I Class, Tadepalligudem in P.R.C.No.04/2011 on her file connected with Cr.No.176/2010 of Ananthapalli Police Station.
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This case coming on 11-05-2012 for final hearing before me and having stood over for consideration till this day, the Court delivered the following:--
J U D G M E N T
The Accused has been prosecuted by the Inspector of Police,
Tadepalligudem under Section 302 of I.P.C., for having committed the murder of Kella Varalaxmi.
2.The brief facts of the Prosecution case are that the Accused is the co-sister-in-law (deceased husband’s brother wife) of the deceased and the husband of the Accused habituated for vices and spends money lavishly. Whereas the husband of the deceased was living systematically.
In view of the vices of the Accused husband they are facing financial troubles. Whereas the deceased and her husband peacefully living. The
Accused and her husband have been living in one portion and deceased and her husband have been in another portion of the same building. While so the Accused developed jealousy towards the deceased and used to pick up quarrel with the deceased for trivial things. On several occasions the Accused was admonished by her in-laws and her husband to keep her under control. But she did not change her attitude towards the deceased and continued her highhanded behaviour over her person. About four months back, the Accused hatched a plan to kill the deceased in gas stove fire accident. While so on 12-10-2010 the children of the Accused dropped the pet dog of the deceased on the ground from the top of their RCC
Building. Due to which the pet dog died. When the deceased tried to admonish the children of the Accused, she intervened and raised a dispute by abusing her in filthy language and she also warned her that, she would 3 not leave her. On the following day at about 5-30 A.M., the Accused observed the husband of the deceased leaving for fields, so she decided to kill the deceased by setting fire to her. She entered into the house of the deceased, poured kerosene over the deceased while she is lying on the cot and set fire to her person with match stick. Due to which the deceased woke up and found the Accused leaving from her house portion. Then she raised cries and poured water on herself and got extinguished the flames.
On listening the cries of the deceased the neighbours and mother-in-law of the deceased and changed the clothes of the deceased and shifted her to a Nursing Home in Tanuku. The deceased sustained severe burn injuries from the lower part of her abdomen to the lower part of her foot. On receipt of the intimation from the hospital the S.H.O., Tanuku recorded the statement of the deceased at 11-30 A.M., on 13-10-2010 and sent the same to Ananthapalli Police Station for registration of the case. On the basis of the said statement the S.H.O., Ananthapalli Police Station registered a case in Cr.No.176/2010 under Section 307 I.P.C., and took up the investigation. On 23-11-2010 at 5-27 P.M., the deceased succumbed to the injuries while undergoing treatment in Mullapudi Venkata
Ramanamma Memorial Hospital, Tanuku. On receipt of the death intimation on 24-11-2010 the section of law was altered from 307 to 302
I.P.C. Thus during the course of investigation it came to light that the deceased was killed by the Accused. Therefore, the charge sheet was laid against the Accused under Section 302 I.P.C.
3. The learned I Addl. Judl. Magistrate of First Class,
Tadepalligudem before whom the charge sheet was filed complied with the provisions under Section 209 Cr.P.C., and committed the case to Court of 4
Session, Sessions Division, West Godavari, Eluru. The Hon’ble Sessions
Judge, West Godavari Division made over the case to this Court for
disposal in accordance with law.
4.After appearance of the Accused before this Court a charge under Section 302 of I.P.C., was framed against her. The charge was read over and explained to the Accused. For which the Accused pleaded not guilty and claimed to be tried.
5.To bring home the guilt of the Accused the Prosecution has examined P.Ws.1 to 15 and marked Exs.P-1 to P-19 and M.Os.1 to 3.
The father of the deceased Meragavi Vishnu Prasad is examined as P.W.1. Meragani Lakshminarayana the brother of the deceased is examined as P.W.2. Kella Appala Swamy the husband of the deceased is examined as P.W.3. Singamsetti Ganga Ratnam the neighbour of the deceased house is examined as P.W.4. Kella
Atchayamma the mother-in-law of the deceased is examined as P.W.5.
Talari Veera Venkata Subba Rao a neighbour of the deceased house who brought the auto for shifting the deceased to the hospital is examined as
P.W.6. Sri Devaguptapu Suresh, V.R.O., of Ananthapalli who acted as panch witness for the scene of offence observation report is examined as
P.W.7. Sri Srimathithirumala Pallimudi Sreekanth Babu, V.R.O., of
Prakasaraopalem who acted as a panch witness for inquest and who scribed the inquest report is examined as P.W.8. Dr. C. Narayana Rao in
Sai Swetha Hospital, Tanuku where the deceased was admitted soon after the occurrence is examined as P.W.9. Dr.G.V. Satish Reddy, General
Surgeon in S.R.B.R.M. Hospital, Tanuku is examined as P.W.10. Sri A.
Raghu, the then S.I. of Police, Ananthapalli who registered and invested 5 the case is examined as P.W.11. One Mandalapu Rambabu a private photographer who has taken photographs of the dead body of the deceased is examined as P.W.12. Sri G. Venkateswara Rao, the then
Circle Inspector of Police, Tadepalligudem who investigated the case and filed the charge sheet is examined as P.W.13. Dr. P. Bhaskara Kumar is examined as P.W.14 to identify the signature of Dr. Y. Hari Krishna Prasad on the postmortem examination report. Sri R. Benni Raju, Head
Constable who recorded the statement of the deceased is examined as
P.W.15.
6.After the closure of evidence on behalf of the Prosecution the
Accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against her. During 313 Cr.P.C., examination the Accused admitted the evidence of P.Ws.1 and 6 to the effect that the deceased is her co-sister-in-law and that she sustained burn injuries and she was shifted to Tadepalligudem from there she was admitted in Sai Swetha Hospital, Tanuku and 10 days thereafter she was shifted Mullapudi Harichandra Prasad Trust Hospital, Tanuku where she succumbed to the injuries 30 days after the incident. She denied the other part of the evidence of the Prosecution and stated that she did not pour kerosene on the deceased and she did not set fire to her.
7. As the Accused could not be acquitted under Section 232
Cr.P.C., she is required to enter into defence for which the Accused stated that she has no defence witnesses.
8. Now the point for consideration is whether the Accused caused burn injuries to the deceased which resulted in her death?
9.POINT:
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The case of the Prosecution that on 13-10-2010 at about 5-30
A.M., the deceased sustained burn injuries and she was admitted in the
Sai Swetha Hospital, Tanuku and from there she was shifted to Mullapudi
Harichandra Prasad Trust Hospital, Tanuku where she succumbed to the burn injuries on 24-11-2010 while undergoing treatment is not in dispute.
10.To prove the death of the deceased due to burn injuries the
Prosecution has examined Dr. C. Narayana Rao of Sai Swetha Hospital,
Tanuku as P.W.9. He deposed that the deceased was admitted in their casualty ward on 13-10-2010 at 9-00 A.M., with burns. He examined and found extensive deep burns on lower back of thighs, legs and buttocks. Till 25-10-2010 he has given treatment to her. On 24-10-2010 the deceased was shifted to another hospital. The deceased was conscious and she was talking through out during treatment in their hospital. Ex.P-9 is the
Wound Certificate issued by him and Ex.P-10 is the intimation given by him to the Police about the admission of the deceased in their hospital.
11.Dr. G.V. Satish Reddy (P.W.10) has deposed that he has been working as general surgeon in S.R.B.R.M. Hospital, Tanuku. On 25-10- 2010 the deceased was admitted in their hospital with burn injuries. At the time of her admission she was in septicemia. They have given treatment to the deceased with the assistance of plastic surgeon. The deceased was expired on 24-11-2010 while undergoing treatment. According to him the deceased died due to burn injuries. Ex.P-11 is their hospital record pertaining to the deceased. During the cross examination he stated that septicemia means transfer of infection from injuries to blood. If injuries are not properly treated it may lead to septicemia.
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12.The Prosecution has also marked postmortem examination certificate issued by Dr. Y. Hari Krishna Prasad as Ex.P-19. To prove this certificate the Prosecution has examinedDr. P. Bhaskara Kumar as
P.W.14. He deposed that he know Y. Hari Krishna Prasad, Civil Assistant
Surgeon who worked on contract basis in their hospital. Now he resigned his job. He came to know that he is doing post graduation somewhere in
Channai. He further deposed that he identified the signature of Y. Hari
Krishna Prasad on Ex.P-19. As seen from Ex.P-19 the deceased died due to extensive burns sustained by her.
13.As per the evidence of P.W.12 who is a private photographer, on the requisition of the Police he has taken photographs of a dead body at Mullapudi Venkata Ramana Memorial Hospital, Tanuku on 24-11-2010.
Ex.P-17 is the photographs of the dead body.
14.The Investigating Officer who is examined as P.W.11 has deposed that after receiving information of death the section of law was altered from 307 I.P.C., to 302 I.P.C. So he took up the investigation and visited the Mullapudi Venkata Ramana Hospital, Tanuku where the dead body of the deceased was lying. So, he conducted inquest over the dead body of the deceased in the presence of the mediators and blood relations.
Ex.P-8 is the inquest report.
15.P.W.8 is the V.R.O., of Prakasaraopalem who acted as a panch witness to the inquest. He deposed that on 24-11-2010 the inquest was held on the dead body of the deceased. Ex.P-8 is the inquest report scribed by him. During the inquest they are of the opinion that the deceased died due to burn injuries and that she sustained burn injuries as the Accused poured kerosene on the deceased and set fire to her.
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16.By considering the evidence held by the Prosecution on the death of the deceased as discussed above it is clearly established by the
Prosecution that 13-10-2010 the deceased sustained burn injuries at her house at about 5-00 A.M., and by 9-00 A.M, she was admitted in Sai
Swetha Hospital, Tanuku and while undergoing treatment she was shifted to Mullapudi Venkata Ramana Hospital, Tanuku on 25-10-2010 and she was expired on 24-11-2010 while undergoing treatment. Thus the
Prosecution has fully established that the deceased sustained burn injuries and succumbed with those injuries while undergoing treatment.
17.There is also no dispute to the time and place of the occurrence. It is the case of the Prosecution that the incident occurred in the house of the deceased on 13-10-2010 at about 5-30 A.M. The
Accused is also not disputing with this fact while she was examined under
Section 313 Cr.P.C. Thus the Prosecution has fully established that the time and place of the occurrence.
18.According to the Prosecution the Accused developed jealousy over the prosperity of the deceased and due to said jealousy she poured kerosene on the deceased and set fire to her. Therefore, according to the
Prosecution the Accused is the person who killed the deceased by setting fire to her.
19.According to the Accused she did not pour kerosene on the deceased and she did not set fire to her and she was falsely implicated in this case.
20.Now it has to be seen whether the Prosecution has established that the Accused poured kerosene on the deceased and set fire to her.
The Prosecution has not been able to produce any witness who said to 9 have been seen that the Accused poured kerosene on the deceased and set fire to her. Therefore, the Prosecution mainly relied upon the circumstantial evidence.
21.Before analyzing the factual aspect of the case it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. So, the offence can be proved by circumstantial evidence also.
In the instant case no one has come forward to testify that he has seen that the Accused poured kerosene on the deceased. So, the entire case of the Prosecution squarely rests on the circumstantial evidence. It has been constantly laid down by the Apex Court that where a case rests squarely on the circumstantial evidence the inference of the guilt must be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the
Accused or guilt of any other person.
22.In the instant case to prove the charge the Prosecution relied upon the following circumstances : (1) Motive for the offence; (2)
Recovery of empty kerosene bottle from the scene of offence; and (3) The dying declaration given by the deceased to the Police Constable soon after her admission in the hospital.
23.MOTIVE:
Admittedly the husband of the Accused is the elder brother of the husband of the deceased and both have been living in two separate portions in the same house which belongs to their father. The case of 10
Prosecution the husband of the Accused is a spendthrift and having bad vices and whereas the husband of the deceased was discipline and the deceased was very happy with him. So, the Accused developed jealousy towards the deceased and she used to pick up quarrel with her on trivial things. One day prior to the incident the children of the Accused have thrown the pet dog of the deceased from the terrace of their house. Due to which the said pet dog died. In this regard when the deceased was admonishing the children of the Accused, she picked up quarrel and threatened her. On the next day having found no one was present in the house of the deceased, the Accused entered into the house of the deceased and she poured kerosene which brought in a bottle and set fire to her and made good her escape. Thus according to the Prosecution the alleged motive for the Accused to commit the offence was the jealousy she developed due to prosperity of the deceased. But unfortunately the
Prosecution has not able to produce any witness to prove the circumstances under which the inference of jealousy developed by the deceased can be drawn.
24.P.W.1 is the father of the deceased and according to him the deceased did not inform him how she sustained injuries. P.W.2 who is the brother of the deceased also stated that the deceased did not inform him as to how she sustained burn injuries.
25.The husband of the deceased is examined as P.W.3 and according to him about one and half years ago on one day at about 5-30
A.M., he went to his agricultural fields and he returned back to the house at 9-00 A.M., and by that time villagers gathered at his house and he found that the deceased sustained burn injuries. Himself, his mother and one 11
Gangamma took the deceased in the auto to the private hospital in
Tadepalligudem. P.W.1 came to the Tadepalligudem and shifted the deceased to another private hospital at Tanuku. After recording the evidence of P.W.3 the Accused came with a petition to recall P.W.3 and further cross examined the learned Counsel for the Accused could able to elicit certain facts has to project the case that the deceased sustained accidental burns. According to P.W.3 on the date of the incident the deceased and himself woke up at 5-00 P.M., and the deceased was experiencing heat near the oven, where the wood was burnt. While he observed the deceased was basking in mild heat to get rid of chill, as it was winder season and he went to his field. Thus the evidence of P.W.3 is not at all reliable. If really it was an accidental burn P.W.3 would have stated the same when he was examined for the first time. Therefore, I have not inclined to give any weight to the evidence of P.W.3 who tried to project the case as if the deceased died due to accidental burns.
26.P.W.4 is the neighbour of the deceased and she deposed that she does not know the deceased and she does not know what was happed to her.
27.P.W.5 is the mother-in-law of the deceased. She deposed that about one year ago on one day in the morning hours at 8-00 or 8-30 A.M., the deceased was lighting the stove at that time, her saree caught fire, then he rushed to the deceased on hearing her cries. In the meanwhile the deceased herself poured water on her and put off the flames.
Thereafter the deceased was lying on the ground in her house. After sometime the husband of the deceased came and shifted the deceased to the hospital.
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28.Thus none of the witnesses examined by the Prosecution, who are close relations of the deceased did not support the case of the
Prosecution and they did not speak about any disputes between the
Accused and the deceased. Though the Prosecution has declared them as hostile and cross examined them nothing was elicited to know incriminating circumstances could be elicited in their cross examination.
Thus, I am of the view that the Prosecution failed to establish that the
Accused developed the jealousy towards the deceased. Even otherwise the jealousy developed by the Accused is not so strong enough to draw an inference that jealousy formed into the motive to take extreme step of killing her co-sister-in-law. Therefore, I have no hesitation to come to conclusion that the Prosecution failed to establish the motive for the
Accused to commit the offence.
29.Recovery of empty kerosene bottle from the scene of offence:
According to P.W.7 who is the V.R.O., of Ananthapalli on 13-10- 2010 the S.I. of Police Ananthapalli Police Station summoned him to the scene of offence. What all they observed at the scene of offence was noted in Ex.P-7. At the scene of offence the Police seized burnt saree pieces, burnt petty coat, empty bottle with little kerosene in it. M.O.1 is the burnt saree pieces. M.O.2 is the burnt petty coat. M.O.3 is the empty Mc.
Dowel Whisky Bottle. P.W.7 evidence is further corroborated by P.W.11 with regard to the recovery of half burnt saree, half burnt yash colour petty coat, and a bottle with little quantity kerosene and also the cap of the said bottle i.e., M.Os.1 to 3. Thus the evidence of P.Ws.7 and 11would show that there was a whisky bottle in which kerosene was carried to the deceased for setting fire to her. But the whisky bottle was not sent for 13 finger print expert. No finger print on the said whisky bottle was collected.
Therefore, mere seizure of the whisky bottle which was used for carrying kerosene did not connect the Accused to this crime.
30.Dying declaration given by the deceased to the Police Constable soon after her admission in the hospital:
As per the evidence of P.W.15 he worked as Head Constable,
Tanuku Town P.S., from 14-7-2010 to 3-6-2011. On 13-12-2010 while he was on duty at Police Station, he received Hospital Intimation from Sai
Swetha Hospital, Tanuku about admission of the deceased with burn injuries. Ex.P.10 is the Hospital Intimation. On receiving the Hospital
Intimation, he went to the Sai Swetha Hospital, Tanuku and met the
Hospital Doctor. The Hospital doctor requested him to record the statement of deceased. Then he took the doctor along with him to the patient and after identifying the patient he recorded her statement.
Ex.P.13 is the statement of the injured/deceased. While recording the statement the doctor left the place as he has to attend another case of emergency nature. He examined the doctor and came to know that the condition of the deceased was critical, but she was in conscious condition.
Thereafter he recorded the statement of the deceased which is Ex.P.13.
After completing the recording of statement of the injured he read over the contents of the statement to the deceased and she acknowledge the same as correct. After recording the statement he met the doctor and obtained his signature on Ex.P.13.
31.Dr. C. Narayana Rao of Sai Swetha Hospital, Tanuku (P.W.9) has deposed that he issued intimation to the Police about the admission of the deceased in their hospital which is Ex.P-10. He further deposed that he signed on Ex.P-13 at 1-03 P.M. His endorsement on Ex.P-13 was 14 obtained at his consultancy room. He further submitted that before recording the statement of injured he examined the injured and found the that she was in conscious after recording the statement of the injured. He also examined her and found that she was conscious, but at the time of recording the statement of injured he was not present. Thus from the evidence of P.W.9 it is very clear that Head Constable visited the hospital and recorded the statement of the deceased which is Ex.P-13.
32.In Ex.P-13 the deceased stated that the Accused is the wife of her husband’s elder brother and every day her husband elder brother used to come to the house in drunken condition and used to abuse them and the
Accused for trivial things used to pick up quarrel and used to abuse her.
She did not like herself and her husband. They have taken a portion of their father-in-law’s house and residing in it and in another portion of the same house the Accused and her husband were living. Ex.P-13 further shows that on 13-10-2010 at about 5-30 A.M., while she was still lying on the cot and her husband left for the field, at that time the Accused came with kerosene and poured on her body and set fire to her with a match stick. Due to flames she woke up and found the Accused was running away and immediately she poured water on herself and put off the flames.
On hearing her cries one Simgamsetti Ganga Ratnam came there and in the meanwhile her mother-in-law came and changed the saree. Thereafter her husband also came there. Her husband, her mother-in-law and
Ganga Ratnam shifted her in an auto to Sai Swetha Hospital, Tanuku. She further stated that she sustained burn injuries to her abdomen, legs and thighs.
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33.Thus as seen from the statement of the deceased given to the
Head Constable she categorically stated that while she was sleeping somebody poured kerosene and set fire to her. Due to flames she woke up and found the Accused was running away from her house, she was under the impression that the Accused would pour kerosene and set fire to her.
34.The learned Public Prosecutor submitted that dying declaration would not loose its efficacy mere because it was recorded by a Police
Officer and not by Magistrate. The statement of the deceased recorded by
Police Officer in fact tredated as a dying declaration if the other requirements in this regard are satisfied. He further submitted that the
Accused is no other than the sister-in-law of the deceased and she has no reason to falsely implicate the Accused for the action committed by someone else. Thus the learned Public Prosecutor submitted that basing on the sole dying declaration the Accused can be convicted. In support of his contention he relied upon in Criminal Appeal No.1882/2010.
35.The learned Counsel for the Accused submitted that dying declaration given by the deceased cannot be relied upon in the facts and circumstances of the present case. Immediately after the incident the mother of the deceased came and met the deceased at the hospital in
Tadepalligudem where she was thoroughly tutored by her and falsely implicated the Accused. Moreover though the deceased was surviving for more than 40 days after her admission in the hospital the Police did not take any steps to get the dying declaration recorded by Magistrate.
Moreover the doctor was not present at the time of the recording of dying declaration. Only after completion of the recording of the dying declaration 16 the Head Constable went and obtained his signature in the Consultancy
Room. In view of the fact that the Head Constable recorded the statement of the deceased which become the F.I.R., and as the doctor was not present at the time of recording of dying declaration and as no steps were taken to get the dying declaration recorded by Judicial Magistrate are the strong circumstances to ignore the dying declaration of the deceased.
Hence, the learned Counsel for the Accused submitted that Ex.P-13 cannot be given any credence and sole dying declaration recorded under the above circumstances is not sufficient to convict the Accused. In support of his contention he relied upon in Visakha Nagaraju Vs. State of
A.P., represented by its Public Prosecutor, High Court of A.P.,
Hyderabad, 2010 (3) ALT (Crl.) 130 (DB) (A.P.); and Rajaram Vs. State
of Rajastan, 2001 (1) ALD 36 (SC)
36.It is well settled law that the dying declaration can be the sole basis for conviction once it is found to be true and voluntary and needs no further corroboration. The principle on which the dying declarations are admitted in evidence is indicated in the legal maxim “Nemo moriturus praesumuntur mentiri” which means that a man will not meet his Maker with a lie in his mouth.
The Apex Court in Paniben Vs. State of Gujarat (3) AIR 1992 SC 1817 at para 17 observed as under: “Though a dying declaration is entitled to great weight, it is worthwhile to note that the
Accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has 17 to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.
It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring-corroboration is merely a rule of prudence.”
Holding so, the Apex Court summed up the principles governing the dying declaration, as laid down by it in various decisions, and they are as under:
“(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja Vs. State of U.P. (1976) 2 SCR 764) (AIR 1976 SC 2199).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. Vs. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi Vs. State of Bihar, AIR 1983 SC 164).
(iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(Rama Chandra Reddy Vs. Public Prosecutor, AIR 1976 SC 1994).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed 18
Beg Vs. State of Madhya Pradesh, (1974) 4 SCC 264 :
AIR 1974 SC 332)).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh Vs. State of M.P., AIR 1982 SC 1021).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath Vs. State of U.P., (1981) SCC (Crl.) 581).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(State of Maharashtra Vs. Krishnamurthi Laxmpati
Naidu, AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza Vs.
State of Bihar, AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram Vs.
State, AIR 1988 SC 912).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. Vs. Madan Mohan,
AIR 1989 SC 1519).”
37.In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declarations are only piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to 19 induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis for conviction, even if there is no corroboration.
38.Ex.P-13 dying declaration is not recorded by any Magistrate. It was recorded by a Head Constable who on receipt of hospital intimation rushed to the hospital. Soon after admission of the deceased in the hospital with burn injuries and recorded her statement and he forwarded the same to the S.H.O., Ananthapalli Police Station on the point of jurisdiction. Though the deceased survived for more than 40 days after the incident neither the Police nor the concerned doctor sent intimation to the local Magistrate requesting him to record the dying declaration. The
Prosecution also did not explain as to why no steps were taken to get the dying declaration recorded by a Magistrate.
39.A dying declaration recorded by a Police does not stand self- condemned. The Courts generally look to a dying declaration recorded by police with suspicion. It becomes suspicious particularly when police did not requisition the service of a doctor or a Magistrate to record it while he had opportunity to do so. There was, as such, no legal infirmity to a dying declaration recorded by police and the Court may very well act upon it, if the same was otherwise acceptable. In Atul Gandhia Vs. State of
Assam, 1990 Cr.L.J., 1049 (Gau),
After discussing the relevant case law summarized the principles in the following lines: (1) A dying declaration recorded by a police officer during the course of investigation is admissible in evidence; (2) It is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by 20 a Magistrate or a doctor; (3) It is not prudent to base the conviction on a dying declaration made to an investigating officer; and (4) The practice of
Investigating Officer himself recording a dying declaration during the course of the investigation should not be encouraged.
In Smt. Kalawati Vs. State of Rajasthan, 1994 Cr.L.J., 691 it was held that a dying declaration recorded by a Police Officer if there was no time or facility available for recording of the same in a better mode.
However, though a dying declaration recorded by a police officer was admissible in evidence under Section 32 of the Act, yet it was considered better to leave such dying declaration out of consideration.
In Ramawati Devi Vs. State of Bihar, A.I.R., 1983 SC 164,
Their Lordships have held that there is no requirement of law that dying declaration must be recorded by a Magistrate. What weight has to be attached to a dying declaration must depend on the facts and circumstances of each case. A dying declaration recorded by police is admissible under Section 32 and can be relied upon for conviction.
In State (Delhi Admin.) V. Laxman Kumar, 1985 SC 250, it was observed by the Hon’ble Supreme Court that dying declaration recorded by police must show that there was no opportunity to get it recorded by Magistrate, it must mention the time of recording and must be signed by the declarant, it he could do.
In Bhagatram Vs. State of M.P. 1990 Crl.L.J. 2407, it was held that if the dying declaration is not recorded in the presence of two or more credible witnesses unconnected with the Police Department, it cannot be made basis of convictions.
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40.As seen from the case law referred above it is very clear that there is no requirement of law that a dying declaration must be recorded only by Magistrate and the dying declaration recorded by Head Constable is also admissible in evidence provided it is shown that there is no time for the Police to approach the Magistrate to get dying declaration recorded. In the instant case as I have already adverted supra after the admission of the deceased in the hospital she was shifted to two more hospitals and she survived for 40 days while undergoing treatment. The doctors who were examined by the Prosecution told that during the course of treatment the deceased was coherent and she is capable of giving statement. The
Prosecution did not explain as to why in these 40 days the dying declaration of the deceased could not be recorded by a Magistrate.
Moreover P.W.5 who is the mother-in-law of the deceased admitted in the cross examination by the Accused, the mother of the deceased instructed the deceased to give a statement to the effect that the Accused poured kerosene on the deceased and set fire to her. The Prosecution declared the witnesses as hostile but however the admitted statement that the deponent was tutored by the mother of the deceased cannot be effaced simply by declaring as hostile witness because admittedly right from the scene of offence P.W.5 has been accompanying the deceased. It is also an admitted fact that soon after admission of the deceased at a private hospital in Tadepalligudem the parents of the deceased approached her and they shifted her to another private hospital in Tanuku. Therefore,
before recording the statement of the deceased by the Head Constable,
the parents of the deceased already accompanied her. Therefore, there is possibility of tutoring of the injured by her parents is not improbable.
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41.The another facet of the dying declaration is that the doctor was not present at the time of dying declaration and his signature was obtained on the dying declaration at his Consultancy Room after about half an hour after completion of the recording of the statement.
In Manicram Vs. State of M.P., A.I.R., 1994 SC 840 (841) = 1994 Crl.L.J. 946 (S.C.). In this case the dying declaration was recorded by Sub Inspector in the nature of F.I.R., without certificate of the doctor that the patient was conscious without signature or thumb impression of deceased in case of allegation against accused husband pouring kerosene oil on the deceased wife, setting fire and running away, and also there was no other evidence against him except the said dying declaration, the said dying declaration was highly doubtful in nature.
In the instant case also except the statement recorded by the
Head Constable in the nature of F.I.R., there is no other incriminating evidence against the Accused. Moreover admittedly the doctor was not present while recording the statement and endorsement of the doctor was obtained on Ex.P-13 later his signature was obtained in the consultancy room. That a part P.W.5 who is the mother-in-law of the deceased and who was admittedly present right from the scene of offence till the dying declaration was recorded by the Head Constable has deposed that the mother of the deceased tutored her before giving statement to the Police.
Under these circumstances by following the principles laid down in the above referred case, I have no hesitation to come to the conclusion that the Prosecution failed to establish that the deceased has given declaration voluntarily.
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42.None of the circumstances projected by the Prosecution are proved up to their hilt and therefore, I have no hesitation to hold that the
Prosecution miserably failed to bring home the guilt of the Accused for the charge under Section 302 I.P.C.
43.Hence, the Accused is found not guilty of the charge under
Sections 302 of I.P.C., and she is accordingly acquitted under Section 235 (1) Cr.P.C. The bail bonds of Accused, if any, shall stand cancelled.
M.Os. 1 to 3 shall be destroyed after expiry of appeal time.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in Open Court, on this the 16th day of May, 2012.
I Additional District and Sessions Judge, West Godavari, Eluru.
APPENDIX OF EVIDENCE:
WITNESSES EXAMINED:
FOR PROSECUTION:
P.W.1-Meragavi Vishnu Prasad. P.W.2-Meragani Lakshminarayana. P.W.3-Kella Appala Swamy. P.W.4-Singamsetti Ganga Ratnam. P.W.5-Kella Atchayamma. P.W.6-Talari Veera Venkata Subba Rao. P.W.7-Devaguptapu Suresh. P.W.8-Srimathithirumala Pallimudi Sreekanth Babu. P.W.9 -Dr.C. Narayana Rao. P.W.10Dr.G.V. Satish Reddy. P.W.11A. Raghu. P.W.12Mandalapu Rambabu. P.W.13G. Venkateswara Rao. P.W.14Dr.P. Bhaskara Kumar. P.W.15R. Benni Raju.
FOR DEFENCE: None.
EXHIBITS MARKED
FOR PROSECUTION:
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Ex.P.124-11-2010161 Cr.P.C., statement of P.W.1 recorded by C.I. of Police, Tadepalligudem.
Ex.P.224-11-2010161 Cr.P.C., statement of P.W.2 recorded by C.I. of Police, Tadepalligudem.
Ex.P.324-11-2010161 Cr.P.C., statement of P.W.3 recorded by C.I. of Police, Tadepalligudem.
Ex.P.413-10-2010161 Cr.P.C., statement of P.W.4 recorded by S.I. of Police, Ananthapalli Police Station.
Ex.P.513-10-2010161 Cr.P.C., statement of P.W.5 recorded by S.I. of Police, Ananthapalli Police Station.
Ex.P.613-10-2010161 Cr.P.C., statement of P.W.6 recorded by S.I. of Police, Ananthapalli Police Station.
Ex.P.713-10-2010Scene of offence observation report prepared by P.W.7.
Ex.P.824-11-2010Inquest Report prepared by P.W.8. Ex.P.913-10-2010Wound Certificate of deceased issued by P.W.9. Ex.P.1013-10-2010Intimation to Police given by P.W.9. Ex.P.1120-1-2011Hospital Receipt of deceased issued by P.W.10. Ex.P.1213-10-2010F.I.R., in Cr.No.176/2010 of Ananthapalli P.S. Ex.P.1313-10-2010Statement of deceased recorded by P.W.11. Ex.P-1423-1-2010Death Intimation recorded by SMVRM. Ex.P-1524-11-2010Altered F.I.R. Ex.P-1614-10-2010Rough sketch prepared by P.W.11. Ex.P-17--Photos numbering 11. Ex.P-1826-11-2010F.S.L. Report. Ex.P-19--P.M. Certificate issued by Y.H.K. Prasad.
FOR DEFENCE: Nil.
MATERIAL OBJECTS MARKED
FOR PROSECUTION:
M.O.1--Burnt saree pieces. M.O.2--Burnt petty coat. M.O.3--Mc. Dowel empty bottle.
FOR DEFENCE: Nil.
I A.S.J
Copies to:
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1. The Registrar (Judl.), High Court of Andhra Pradesh, Hyderabad. (By CD)
2. The District Collector, W.G., Eluru.
3. The I Addl. Judicial Magistrate of I Class, Tadepalligudem.
4. The Superintendent of Police, W.G., Eluru.
5. The Director of Prosecution, Hyderabad.
6. Sri L. Ajay Prem Kumar, Addl. Public Prosecutor , W.G., Eluru.
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TABULAR FORM ANNEXED TO THE JUDGMENT IN S.C.No.254/2011
ON THE FILE OF I ADDITIONAL SESSIONS JUDGE, WEST GODAVARI
DIVISION, ELURU UNDER RULE 318 OF THE CRIMINAL RULES OF
PRACTICE.
1.Sessions Case No. and:254/2011 and P.R.C.No.04/2011 P.R.C.No: with name of theI Addl. Judl. Magistrate of I Class Court, committal courtTadepalligudem.
2. Name of the Police station:Crime No.176/2010 of Ananthapalli Police Station.
3. Name of the Accused and :Kella Laxmiparvathi, W/o.Srinivasa particularsRao, 30 years, Kapu, Ananthapalli Village, Nallajarla Mandal.
4. Date of offence:13-10-2010
5. Date of complaint:13-10-2010
6. Date of appearance :14-10-2010
7. Date of release on bail:01-02-2011
8. Date of committal:11-05-2011
9. Date of commencement of :21-02-2012 trial
10. Date of close of Trial:11-05-2012
11. Date of Sentence of Order:16-05-2012
ORDER:
In the result, the Accused is found not guilty of the charge under Sections 302 of I.P.C., and she is accordingly acquitted under
Section 235 (1) Cr.P.C. The bail bonds of Accused, if any, shall stand cancelled.
M.Os. 1 to 3 shall be destroyed after expiry of appeal time.
12. Explanation for the delay: No avoidable delay
13. Appeals as prescribed under rule 319 : No avoidable Delay of Crl.Rules of Practice with regard to the diary extract submitted by the Committing Court.
I Additional Sessions Court,I Additional Sessions Judge, West Godavari Division, Eluru. West Godavari, Eluru.
Dated: 16-05-2012.
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