Full Judgment Text
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PETITIONER:
CHARIPALLI SHANKARARAO
Vs.
RESPONDENT:
PUBLIC PROSECUTOR HIGH COURT OFANDHRA PRADESH, HYDERABAD
DATE OF JUDGMENT13/01/1995
BENCH:
FAIZAN UDDIN (J)
BENCH:
FAIZAN UDDIN (J)
RAY, G.N. (J)
CITATION:
1995 AIR 777 1995 SCC Supl. (4) 24
JT 1995 (1) 364 1995 SCALE (1)192
ACT:
HEADNOTE:
JUDGMENT:
1. This Criminal Appeal under Section 2-A of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970 has been directed against the reversing judgment of the
High Court of Andhra Pradesh passed in Criminal Appeal No.
324/1985 setting aside the order of acquittal of the
appellant dated 31.10.84 for an offence under Section 302 of
the I.P.C., recorded by the Session Judge, East Godawari
Division at Rajahmundry in Session Case No. 50/1984. By the
said judgment the High Court convicted the appellant under
Section 302 of the Penal Code and sentenced him to undergo
life imprisonment.
2. The prosecution case was that the deceased girl Seelam
Nageswari aged about 16 years was residing with her parents
in the eastern portion of the house situated in Kondawari
Lane belonging to Smt. Mathineni Guramma, the mother-in-law
of the accused appellant. The said portion of the house was
obtained by the parents of the deceased girl on a monthly
rent of Rs. 120/- about four months prior to the occurrence
and the land lady was demanding higher rent at the rate of
Rs. 150/- per month. It is said that in the morning of
4.2.1984 Smt. Seelam Narasayamma, PW 1 W/o Venkateshwarlu,
PW 9, the mother of the deceased girl sent Rs. 120/- towards
the house-rent for the month of January, 1984 through her
son Srinivasarao, PW 3 to the (land lady), the mother-in-law
of the appellant but she declined to receive the same saying
that the rent was enhanced to Rs. 150/- and, therefore, Rs.
30/- more should be paid. In the aftemoon when
Venkateswarlu, PW 9, the husband of PW 1 came home he was
informed that the land- lady had not accepted Rs. 120/- as
rent for January, 1984 and was demanding enhanced rent at
the rate of Rs. 150/- per month. The same day at about 8.00
PM the land-lady Guramma and her daughter Sitalakshmi, the
wife of the accused appellant came to the house of PW 1 and
demanded the rent at the rate of Rs. 150/- and both of them
are said to have abused the family members of PW 1, Seelam
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Narasayamma who requested them not to abuse and wait till
the return of her husband to the house as she was not having
the money to pay. At that point of time the deceased
Nageswari was stitching fall to a saree sitting in the
backyard of the tenanted house. In the mean-while the
appellant also arrived there and started showering abuses in
raised voice and demanded the immediate payment of rent at
Rs. 150/- even without waiting the return of the husband of
Seelam Narasayamma, PW 1. The appellant also threatened to
remove their household articles and threw them in the Bazar
and remove the tiles of the portion of the house occupied by
him. Saying so the appellant went to the backyard of the
house through the eastern lane while the land-lady and her
daughter-inlaw continued to abuse PW 1 and her family
members standing in front of the house. PW 1 heard the
cries of her deceased daughter, Nageswari from the backyard.
On hearing her cries, PW 1, Seelam Narasayamma , PW 2
Venkateswari, another daughter elder to the deceased as well
as her son Srinivasarao, PW 3 rushed to the backyard through
eastern lane which is said to be more convenient to reach to
the backyard and found the deceased in flames. In the mean-
while the appellant rushed back and pushing them aside and
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went away. They poured water on Nageswari and extinguished
the fire. They questioned Nageswari who was conscious as to
what had happened, to which she stated that the appellant
came there abusing and when he was about to remove the
articles to throw them away, she obstructed him to do so and
then the appellant went into the kitchen, brought a kerosene
tin, and poured it on her body and set fire to her with a
match-stick. Venkateshwarlu PW 2 the elder sister of the
deceased and her brother Srinivasarao, PW 3 went to the
Police Station to report the incident. On receiving the
information, Head Constable, G.V. Raman PW 16 came to the
place of occurrence and recorded the statement Ext P 5 of
injured Nageswari. As Nageswari was not in a position to
sign due to bum injuries the Head Constable, PW 16 obtained
her thumb impression on Ext.P 5 which was attested by Seelam
Apparao, PW 7 and Palika Apparao, PW 8 who were present
there at the time of recording the statement Ext. P 5. The
Head Constable, PW 16 then sent the injured Nageswari to the
Government Hospital Rajahmundry for treatment and register-
ing the crime against the appellant.
3.Dr. K. Ramalingeswara Rao, PW 13 admitted the injured
Nageswari in the hospital and gave the treatment for her
burn injuries. Dr. Ramalingeswara Rao, PW 13 is also said
to have recorded the state0ment of Nageswari which was
marked as Ext. P 11. On receiving the First Information
Report the Assistant Sub-Inspector, M.Koteswararao, PW 17
also reached the hospital where he recorded the Statement
Ext. P 16 of the injured Nageswarl under Section 161 of the
Cr.P.C. He also examined Seelam Narasayamma, PW 1
Venkateswari, PW 2 and Srinivasarao, PW 3 as well as PWs 4
to 9 under Section 161, Cr.P.C. The injured Nageswari died
in the hospital next day in the morning.
4.Satnibabu, PW 18, the Sub-Inspector held inquest over the
dead body and sent the dead body for postmortem examination.
Dr. B.N. Sastry, PW 15, the Deputy Civil Surgeon performed
autopsy over the dead body of Nageswasri and as per his post
mortem report, Ext. P 16 the doctor found 90 per cent bum
injuries all over the body. In the opinion of doctor B.N.
Sastry, Nageswari died of circulatory failure and shock due
to burns.
5. At the trial the appellant pleaded to be innocent and
stated that he was falsely implicated. He took plea that he
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had learnt that the deceased had become pregnant and her
parents, PW1 and PW 9 managed her abortion secretly and when
her mother-in-law learnt about it she asked them to vacate
the portion of the house occupied by them as a result of
which there was an altercation between his mother-in-law and
the deceased regarding the bad character of the deceased.
He stated that when he went to the house of PW 1 and 9 he
found that PW 1 was abusing his wife and mother-in-law and
the deceased was in flames and, therefore he returned back
to his house. He stated that he had learnt that Nageswari
had set fire to herself but in order to save themselves from
the penal consequences for the offence of attempt to commit
suicide by the deceased and with a view to conceal the
family scandal PW 1 to 3 as well as PW 7 to 9 after mutual
deliberations implicated the appellant falsely. After
evaluation of the entire prosecution evidence the learned
Trial Judge rejected all the dying declarations made by the
deceased and also rejected the oral
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evidence adduced by the prosecution and recorded the finding
that the appellant was innocent and, therefore, passed the
order of acquittal. However, the High Court on analysing
the entire prosecution evidence and on overall consideration
of the facts of the case accepted the evidence on record of
PW 1 to 9 as well as the declaration, Ext. P 5 recorded by
the Head Constable, PW 16 and on that basis recorded the
finding that there was sufficient reliable evidence
establishing the guilt of the accused appellant, and,
therefore, set aside the order of acquittal and convicted
the appellant under Section 302, I.P.C. and sentenced him to
undergo life imprisonment against which this appeal has been
preferred.
6.Learned counsel for the appellant assailed the findings of
the High Court with regard to the dying declaration Ext. P.
5 recorded by the Head Constable, PW 16. It was urged by
him that in fact the deceased was an unmarried girl but
became pregnant and her parents PW1 and 9 arranged her
abortion secretly which became known to the mother-in-law of
the appellant and, therefore, she asked them to vacate the
portion for which there was an exchange of hot words between
them by reason of which the deceased made a bid to end her
life by committing suicide by setting fire to herself to
avoid the family scandal and to save themselves from penal
consequences, the family members of the deceased foisted the
blame falsely on the appellant after due deliberations.
Learned counsel for the appellant submitted that the alleged
dying declaration Ext. P 5 was not worthy of reliance as
the same was made after deliberations and tutoring the
deceased. It was submitted that the dying declaration Ext.
P 5 said to have been recorded by the Head Constable, PW 16
is neither recorded by a doctor nor any Magistrate was
requisitioned to record the same nor it is in the question
answer form. He Submitted that in the dying declaration
there is no mention that the deceased had obstructed the
appellant from throwing the articles and removing the tiles
of the house before she was set on fire and the dying
declaration is against the natural conduct in-as-much as the
deceased would have escaped by running away when kerosene
was poured on her and before the match stick was lit to set
fire on her. After giving a serious consideration to the
submissions made above and on a close analysis of the
evidence on record concerning the dying declaration Ext. P
5 we find that the reasons given by the High Court in ac-
cepting the evidence with regard to the dying declaration
Ext. P 5 are quite reasonable and weighty as compared to
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the conclusions recorded by the learned Trial Judge which is
totally against the weight of the evidence.
7. Km. Seelam Venkateswari, PW 2 is the elder sister of
the deceased. She stated that soon after the occurrence she
went to the police-station and informed about the incident
and immediately thereafter police came to the house and
recorded the statement of the deceased Nageswari in the
presence of family members and others and that the injured
Nageswari had put her thumb impression on her statement
recorded by the police. G.V. Raman, PW 16 police Head
Constable deposed that he was present in the police station
when Venkateswari, PW 2 came on 4.2.1984 at about 11.30 PM
and informed about the incident. He then proceeded to the
place of occurrence and recorded the statement Ext. P 5 of
injured Nageswari and obtained
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her thumb impression on the same which was attested by the
witnesses present there. He stated that he had recorded the
statement Ext. P 5 as was stated by the injured girl
Nageswari which was read over to her and thereafter obtained
her thumb impression. K. Pullarao, PW 4 is also a tenant of
the same land lady in the eastern portion of the same house
who though turned hostile yet admitted that the police had
recorded the statement of the deceased girl to the effect
that the appellant had poured kerosene on her and lit her
clothes. He admitted that injured Nageswari was lying on a
cot and talking in a low voice. Seelam Apparao, PW 7 also
deposed that the police had recorded the statement of
injured Nageswari in his presence which was attested by him.
He stated that after recording the statement it was read
over to the injured girl who had affixed her thumb
impression on the same. Similar is the statement of Balika
Apparao, PW 8 who had also attested the statement of the de-
ceased recorded by the Head Constable, PW 16. There is
nothing in their statements which may discredit their
testimony. None of these witnesses were cross examined on
behalf of the appellant on the allegations that the injured
Nageswari was tutored at any point of time by any one before
her statement Ext. P 5 was recorded by the Head Constable,
PW 16. No question was put to any of these witnesses in
cross examination in this behalf. K. Pullarao, PW 4 and
Palika Apparao, PW 8 are independent witnesses and PW 4 to
some extent had become hostile and, therefore, it could not
be expected that in case the deceased was tutored by the
family members or the close relatives these persons would
not have raised their voice and protested the same. Had
there been any tutoring of the injured Nageswari, these
independent witnesses would not have allowed any false
implication. Head Constable, G.V. Raman, PW 16 who recorded
the dying declaration deposed that he recorded Ext. P 5
according to the narration of facts as stated by the injured
girl Nageswari.
8. Further a perusal of the statement of Dr. K.
Ramalingeshwara Rao, PW 13 will go to show that he has sent
intimation to the local Judicial Magistrate to record the
dying declaration of the victim but the Magistrate was not
available in the head- quarters. This shows that an attempt
was also made that the dying declaration may be recorded by
the Magistrate but the said’ effort could not be
materialised as the Magistrate was not available. It may
usefully be pointed out here that in the case of Ramawati
Devi v. State of Bihar AIR 1983 SC 164 it was observed by
this Court that there is no requirement of law that a dying
declaration must necessarily be made to a Magistrate. What
evidentiary value or weight has to be attached to such
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statement must necessarily depend on the facts and
circumstances of each particular case. As discussed by us
above, in the present case an attempt was made to procure
the services of a Magistrate for recording the dying
declaration but the Magistrate was not available and the
dying declaration Ext. P 5 had to be recorded by the Head
Constable which fact finds support from several witnesses
including independent witnesses. We have, therefore, no
hesitation in accepting the same. The High Court was, fully
justified in accepting the said dying declaration.
9. The contention that the deceased had become pregnant
and had suffered secret abortion is a fabricated story
without
369
any foundation as there is no evidence whatsoever to support
the said submission. Similarly the assertion that the
appellant was falsely implicated is equally without any
merit. Neither the parents of the injured nor any of the
prosecution witnesses had any animosity with the appellant
who may be interested in his false implication and if at all
they wanted to falsely implicate anyone they would have
implicated the land lady Smt. Guramma and her daughter-in-
law who in fact were quarelling with them for enhancement of
rent but it was not done so. Learned counsel for the
appellant submitted that the deceased had not mentioned in
her statement Ext. P 5 that she was set on fire by the
appellant when she obstructed him from throwing the articles
of the house and removal of the tiles. It was also
submitted that the deceased also did not state in the dying
declaration as to who had poured water on her to extinguish
the flames but simply stated that someone had poured water.
It was, therefore, contended that the dying declaration
should not be believed. In this connection we may point out
that it is not the requirement of law that the person making
the dying declaration should make an elaborate and
exhaustive statement so as to cover each and every aspect of
the incident and narrate the whole history of the case. The
fact could not be lost sight of that according to the
medical evidence the deceased Nageswari had suffered 90 per
cent burns and must have been under a severe stress and
agony. According to the evidence on record she was talking
in a low voice which indicated that she was able to speak
with some difficulty and, therefore, it was not possible for
her to make a very detailed statement covering the minutes
details which could not be expected under the facts and
circumstances of the present case. However, the statement
Ext. P 5 is very clear and specific that it was the
appellant who poured kerosene oil and set her body on fire
by lighting a match stick and there was hardly any occasion
for the deceased to escape from there. After reading the
statement Ext. P 5 as a whole we are convinced that it does
not suffer from any infirmity so as to render it doubtful or
unworthy of reliance. In this connection a reference may be
made to the observations of this Court made in Mannu Raja v.
Slate of M.P [ AIR 1976 SC 2199].
10.Besides the written dying declaration discussed above
there is ample evidence about the oral dying declaration
made by the deceased Nageswari. Smt. Seelam Narasayamma,
PW1 is the mother of the deceased girl. She deposed that
in the morning of the date of occurrence she had sent Rs.
120/- to the land lady through her son Srinivasarao, PW 3 as
rent for the premises. But the land lady refused to receive
the same saying she had enhanced the rent of Rs. 30/- more
and demanded Rs. 150/-. When her husband came home in the
afternoon she informed him that the land lady was demanding
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Rs. 30/- more. She further stated that on the same night
the land lady Guramma and her daughter-in-law Sitalakshmi,
the wife of the appellant came to her, abused her and
demanded Rs. 150/-. She requested them to wait till the
arrival of her husband and when they were so talking, her
daughter Nageswari was sitting in the backyard- The accused
appellant also came there abusing in loud voice and demanded
immediate payment of rent at the rate of Rs. 150/- per month
without waiting for the return of her husband. The
appellant threatened to remove the household articles and
the tiles of the
370
house if the rent of Rs. 1501 was not paid to them
forthwith. The appellant went to the backyard through the
eastern lane and soon thereafter cries of Nageswari were
heard and when they rushed to the backyard through the
eastern lane, the appellant came opposite to them and went
away pushing them aside. When PW1 alongwith her another
daughter Venkateswari, PW1 and her son Srinivasarao, PW 3
reached the backyard they found Nageswari burning in fire.
They therefore poured water on her and extinguished the
fire. She further deposed that injured Nageswari was in
full consciousness and on questioning as to how and why she
was burning, she told them that the accused appellant came
abusing and tried to remove the articles and throw them
away. She obstructed him to do so. The appellant,
therefore, took kerosene tin from the kitchen, poured the
same on her and lighted the fire with match stick. This
statement of Seelam Nasaramma, PW1 is fully and
consistently supported and corroborated by Km. Seelam
Venkateswari, PW 2 and Srinivasarao, PW 3. As discussed
earlier Pullarao, PW 4, Seelam Apparao, PW 7, Palika
Apparao, PW 8 and the father of the girl Seelam
Venkateswarlu, PW 9 who had also returned home in the mean
while have all deposed the same way. There is absolutely no
reason for them to falsely implicate the appellant in the
occurrence, there being absolutely no animus to do so.
There evidence suffers from no infirmity so as to cast any
doubt in the truthfulness of their version and the High
Court was fully justified in accepting their evidence as
truthful and reliable.
11.In the facts and’ circumstances discussed above we find
no cause for any interference in the conclusions recorded by
the High Court. Consequently, the appeal fails and is
hereby dismissed.
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