A. Shankar Narayana, J.
1. The appellant herein viz., V. Narasimha is the accused, who faced trial for the charge under Section 302 of Indian Penal Code, 1860 (for short ‘IPC’), on the ground that he alleged to have killed his wife Smt. Narsamma (hereinafter referred to as ‘deceased’) having subjected her to cruelty suspecting her fidelity.
2. The learned Additional Metropolitan Sessions Judge - cum - II Additional District and Sessions Judge, Ranga Reddy District, Cyberabad, at L.B. Nagar, Hyderabad, believing the evidence let in by the prosecution and mostly relying on the dying declaration of the deceased recorded by the learned Magistrate, PW.8, arrived at the conclusion that the prosecution could prove the charge against the accused beyond all reasonable doubt and recorded conviction under Section 235(2) of the Code of Criminal Procedure, 1973 (for short ‘Code’), for the charge under Section 302 of IPC, and inflicted Imprisonment for Life besides imposing a Fine of Rs.500/- and in default to suffer Simple Imprisonment for a period of six (6) months by his judgment under challenge dated 11.11.2009 in S.C. No.189 of 2009.
3. Heard Sri Tata Singaiah Goud, learned legal aid counsel appearing for the appellant - accused, and the learned Public Prosecutor for the State of Telangana, and perused the judgment under challenge including the material on record.
4. We would like to advert to the submissions made by the learned counsel after narrating the prosecution case projected through the charge sheet.
(a) The marriage between the accused and the deceased took place six (6) years prior to the date of incident. Out of their wedlock, a son was born to them named as Shivudu, and he was three (3) years old on the date of incident. To eke out livelihood by doing labour work in and around Moulali, they started residing in a hut near Gayatrinagar Water Tank. For some time, they lived happily. But, in the recent past, the accused, who started suspecting her character, was beating her frequently. On 16.02.2009 at about 10.40 p.m., they had their dinner and they were about to go asleep. At that juncture, the accused picked up quarrel, abused her in filthy language casting aspersions that she developed illegal contacts, beat her with hands, took up kerosene tin, poured kerosene on her person and set her ablaze. When the flames spread all over the hut, unable to bear the burns, she raised hue and cry and ran out of the hut. The neighbours, who heard her hue and cry, extinguished the flames and got admitted her in Gandhi Hospital for treatment. When the duty medical officer from Gandhi Hospital sent a medico legal intimation, PW.11, the Assistant Sub Inspector, was sent to Gandhi Hospital to record the statement of the victim, who having recorded the statement, was also inf
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ormed by the duty doctor that already PW.8, learned Magistrate, came and recorded the statement of the victim (deceased), and handed over the same to PW.13, Inspector of Police, who registered a case in Crime No.73 of 2009 for the offences punishable under Sections 307 and 498-A of IPC and issued First Information Report (FIR) under Ex.P-12. PW.13 instructed PW.12, the Sub Inspector of Police, who visited the scene of occurrence and conducted panchanama in the presence of mediators, PW.10 and another as in Ex.P-1 and drawn a rough sketch of scene of offence as in Ex.P-2.
(b) Later, PW.13 took up investigation and held inquest over the dead body of the deceased in the presence of mediators and when the accused surrendered himself on 20.02.2009 before PW.13 at the police station, he was sent for judicial remand.
(c) When the victim was admitted in Gandhi Hospital on the intervening night of 16/17.02.2009, the duty medical officer, PW.9, sent a requisition to the learned Magistrate, who was engaged in recording dying declaration of yet another victim in the same hospital, on receipt of that requisition at 12.46 a.m., recorded the statement of the victim (deceased) as to the cause of burns she sustained and the person, who is responsible for causing the said burns on her person as in Ex.P-7.
(d) When PW.12 received intimation from Gandhi Hospital as to death of the deceased on 19.09.2009, he altered Section of Law from 307 of IPC to 302 of IPC. Charge sheet was laid alleging the offences punishable under Section 498-A and 302 of IPC against the accused.
5. The learned Sessions Judge, when examined the accused for the said charge on 25.06.2009, since he pleaded not guilty, proceeded with trial.
6. During trial, in order to prove the guilt of the accused for the aforesaid charges, the prosecution altogether examined (18) witnesses and marked Exs.P-1 to P-12 besides exhibiting material objects 1 to 3. On behalf of defence, no witnesses were examined and no contradictions were elicited to exhibit them.
7. The learned counsel for the accused would submit that the accused was not at his residence and, in fact, he went to witness a movie and when he returned home having witnessed the movie, he came to know about the occurrence and, in fact, he even handed over cinema tickets to the police which aspect was not dealt with by the learned Sessions Judge and, therefore, lacks proper appreciation of evidence on record.
8. The second submission he made is that the evidence of PWs.1 and 2 ought not to have been believed for the reason, if they really extinguished the flames and saved the victim (deceased), there ought to be burns on their hands which the learned Sessions Judge overlooked to examine.
9. Third, recording of dying declaration by the learned Magistrate on 16/.02.2009 at 1.20 a.m. is doubtful, for the reason, the statement made by the deceased as in Ex.P-9 was at 10.40 a.m. on 16.02.2009 and thus, accounts for a suspicious feature which ought to have been noted by the learned Sessions Judge and accorded benefit of doubt to the accused, and, therefore, sought to allow the appeal setting aside the conviction and sentences inflicted on the accused.
10. Per contra, the learned Public Prosecutor would submit that the plea of alibi raised by the accused is unsustainable as it lacks proof which burden completely rests on the accused and even the circumstance that the accused did not assert to it when he was examined under Section 313 of the Code is sufficient to reject that submission out-rightly. Concerning the second submission that PWs.1 and 2 since did not receive any burns to their hands, to disbelieve their presence at the place and time of occurrence, the learned Public Prosecutor would submit that the persons who extinguish flames need not always receive injuries and mere absence of injuries on the hands of PWs.1 and 2 is no ground to disbelieve their presence at the place and time of occurrence.
11. In regard to dying declaration, the learned Public Prosecutor would contend that there is absolutely no inconsistency in the evidence of PW.8, the learned Magistrate, who recorded statement of the deceased, took every precaution as mandated by the relevant Rules of practice and the doctor was also present at the time when statement was made by the deceased, and, thus, the dying declaration and the evidence of PW.8 coupled with the evidence of the doctor examined as PW.9 as to sustaining burns by the deceased, would clinchingly establish the complicity of the accused and there is no reason to disbelieve the dying declaration as it is not tainted with malice.
12. Thus, the learned Public Prosecutor would support the finding recorded by the learned Sessions Judge leading to conviction of the accused and sentences inflicted on him.
13. When we look at the evidence on record in the light of the submissions made by the learned counsel for the accused and the learned Public Prosecutor, we opine that we will have to answer the following points:
1. Whether the dying declaration under Ex.P-7 recorded by PW.8 is creditworthy, implicitly reliable and can form basis for convicting the accused?
2. Whether the prosecution could prove the motive for the accused to kill the deceased?
3. Whether the findings recorded by the learned Sessions Judge and the consequent conviction for the offence of murder can be sustained?
POINT Nos.1 to 3:
14. A cursory glance at the evidence let in by the prosecution would unfold that there is no eyewitnesses to the actual occurrence except the dying declaration of the victim recorded by PW.8 as in Ex.P-7. The other witnesses, who are examined as PWs.1, 2, 3 and 4, are circumstantial witnesses, but, their evidence cannot be brushed aside, at least, to the extent of testimony of PW.1, PW.3 and PW.4, to whom the deceased soon after she sustained burns when she was set ablaze, made an oral statement near the hut when the flames were extinguished by PWs.1 to 3 respectively, that her husband poured kerosene and set fire to her. Thus, the statement of the deceased made to them account for dying declaration. This apart, there is yet another statement available on record recorded by PW.10 at the hospital on receipt of medico legal intimation from the duty doctor PW.9, who, on the instructions of PW.13, went to Gandhi Hospital and reduced the statement of the deceased in to writing which constitutes basis for launching criminal action against the accused. Thus, we find three (3) dying declarations on record and if no inconsistency is to be found, there cannot be any hesitation to accept and act upon the dying declaration recorded by PW.8, the learned Magistrate, and to convict the accused on the sole basis of the dying declarations. That has been the settled law in regard to which we would like to refer to certain rulings rendered by the Hon’ble Apex Court.
15. Initially, we intend to take up the plea of alibi put-forth by the accused. At the outset, we would like to observe that there is no material worth the name placed by the accused to support the said plea.
16. The very fact that the accused did not adduce any evidence nor did he explain when examined under Section 313 of the Code, touching the plea of alibi that he has gone to witness a movie and when he returned having witnessed the movie, he learnt that the deceased sustained burns, is sufficient to repel that plea. This apart, even when suggested to the witnesses by the learned counsel, it was not clear as to which movie the accused said to have witnessed and in which theatre he witnessed the said movie. It appears, only to wriggle himself out of the impending accusation and the conviction, he has come up with an artificial and unnatural defence theory putting forth the plea of alibi. We, therefore, do not have any hesitation in rejecting that plea of alibi.
17. We now refer to the caution given by the Hon’ble Apex Court and the guidelines