Mekala Suresh, v. The State Of Andhra Pradesh,

HON'BLE SRI JUSTICE SURESH KUMAR KAIT AND HON'BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL No.1647 of 2010 JUDGMENT: (Per Hon'ble Sri Justice U.Durga Prasad Rao) This appeal is filed by appellant/accused aggrieved by the judgment dt.17.03.2010 in S.C.No.263 of 2006 passed by I Additional Sessions Judge, Nellore whereby the learned Judge convicted the accused for the offence punishable under Section 302 IPC and sentenced him to suffer RI for life and to pay a fine of Rs.100/- in default of payment of fine amount, to suffer SI for one month. 2) The prosecution case in brief, is thus:

a) The accused-Mekala Suresh was the resident of Jonnayagunta of Kavali Town; deceased-Mekala Suneetha was given in marriage to the accused and during their wedlock they blessed with a son. The accused addicted to vices like drinking and gambling etc. on account of which, he was wasting money. At the same time he was harassing the deceased to get money from her parents. While so, the deceased purchased a buffalo without the knowledge of accused and on coming to know the same, on 21.09.2005 the accused picked up quarrel with deceased as she was not heeding his words. He became angry and intended to do away with her. He poured kerosene on the deceased and lit fire with a match stick, deceased caught fire all over the body and she cried loudly. On hearing her cries, the neighbours came and put off the flame. PW5

informed the said incident to the parents of the deceased; when they came, the deceased escaped from the house. Immediately the deceased was shifted to the Government Hospital, Kavali. On receipt of requisition from the hospital authorities, PW11-Principal Munsif Magistrate, Kavali visited the hospital and recorded the dying declaration of the deceased under Ex.P18. So also, on hospital information PW16-Head Constable of I Town PS, Kavali rushed to the hospital and recorded the statement of the deceased under Ex.P22, which was registered as a case in Cr.No.138/2005 under Section 307 IPC and handed over the file to PW14-ASI who visited the scene of offence, prepared scene of offence observation report, drawn rough sketch, seized partly burnt clothes-M.O.1 and empty kerosene bottle-M.O.2 under the cover of panchanama. On 22.09.

2005, the deceased succumbed to injuries while undergoing treatment, then section of law was altered from 307 to 302 IPC. Thereafter, PW19-Sub-Divisional Police Officer, Kavali conducted further investigation and filed charge sheet. b) On appearance of the accused, the trial Court framed charge under Section 302 IPC against him and conducted trial. c) During trial, PWs.1 to 19 were examined and Exs.P1 to P29 were marked and MOs.1 and 2 were exhibited on behalf of prosecution. No oral or documentary evidence was led on behalf of defence.

d) After completion of trial, the accused was examined under Section 313 Cr.P.C and incriminating circumstances revealed in the prosecution evidence were put to him and the accused denied. 3) The trial Court after considering both oral and documentary evidence observed that version of deceased in her dying declarations was convincing, credible and free from all infirmities and accordingly, convicted and sentenced the accused as stated supra. Hence the appeal by appellant/accused.

4) Heard arguments of Sri K.Suresh Kumar, learned counsel for appellant/accused and learned Public Prosecutor for the State (A.P). 5) Impugning the judgment, learned counsel for appellant would argue that the trial Court grossly erred in convicting the accused basing on the sole tutored dying declaration of the deceased inspite of the fact that own brother and parents of the deceased (PWs.1 to 3) have categorically stated that she committed suicide. According to them, the accused used to consume liquor sometimes and that was the only vice he had. Whereas the deceased was rigid and angry type of lady and used to insist that her word shall prevail. Thus the circumstances would suggest that in order to mend his ways and threaten him, the deceased might have poured kerosene and set fire to herself obviously to suffer some minor injuries but unfortunately she died. However due to the tutorage of the neighbours and family members, she gave a different version to implicate the accused as otherwise she had to bear the blame. Without

objectively considering the evidence on record, the trial Court placed implicit reliance on the dying declaration of the deceased and convicted the accused and therefore, the judgment of the trial Court suffers the vice of perversity and wrong appreciation. He thus prayed to allow the appeal and set aside the conviction.

6) Per contra, while supporting the conviction and sentence, learned Public Prosecutor would argue that within short time after receiving burn injuries, the deceased was admitted in Government Hospital, Kavali and on intimation of the duty doctor (PW.13), the Head Constable of Kavali II Town PS (PW.16) reached the Government Hospital and recorded the dying declaration of the deceased wherein she clearly stated that accused poured kerosene and set her ablaze. Thereafter, PW.11-the Magistrate on intimation went to the Hospital and recorded the dying declaration of the deceased and at that time also, the deceased stated that her husband poured kerosene and set fire on her.

Both the Magistrate as well as the Head Constable have clearly stated that while they were recording the dying declaration, except them and the duty doctor, none others were present. Further, the duty doctor has certified the fit condition of the deceased to give the statement. Learned Public Prosecutor pointed out that all these would emphatically show that the accused himself poured kerosene and set fire to her and due to the burn injuries, she succumbed to death on the following day. The trial Court has correctly appreciated the evidence on record and rightly convicted the accused. He thus prayed to dismiss the appeal.

7) The point for determination in this appeal is: "Whether the trial Court was right in recording the conviction on the basis of sole dying declaration of the deceased?" 8) POINT: This Division Bench happened to discuss about the probative value of dying declaration in Md. Farooq vs. State of A.P1. Referring several Apex Court judgments on this subject, this Court observed thus:

"If the dying declaration infuses confidence and the court concludes that the said declaration is free from prompting or tutoring, it can base the conviction on the sole dying declaration without seeking for corroboration from other evidence. Its acceptability is based on the legal maxim nemo moriturus praesumitur mentire, which means "a man will not meet his maker with a lie on his mouth". Generally it is believed that the truth sits on the lips of a dying person and in his last moments of departing from the mundane world, he would not venture to tell lies more so with regard to cause of his death and about his assailant. This belief generally guides the courts to accept the dying declaration.

Of course, if the accused can, by cogent material, able to raise a suspicion about the genuinety of the dying declaration, then the court may reject the dying declaration or seek for corroboration." 9) It should be noted that in this case the prosecution in order to prove the vices of the accused and his harassment towards the deceased and about the incident that occurred on 21.09.2005, mainly relied upon the evidence of PWs.1 to 8. PW.1 is the brother, PW.2 is the father and PW.3 is the mother of the deceased. PWs.4 and 5 are neighbours of the accused and deceased. PW.

had allegedly spared his taxi to shift the injured to the hospital. PW.7 is the mother and PW.8 is the sister of the accused. All the aforesaid witnesses turned hostile and did not support the prosecution case. PWs.1 to 5, 7 and 8 went to the extent of saying that the deceased committed suicide by setting fire to herself. Hence their evidence is of no avail to prosecution and obviously its case pivots on the two dying declarations recorded by PWs.11 and 16. Keeping in view the jurisprudence on the dying declarations we have noted above, it has now to be seen whether the Exs.P.22 and P.18-dying declarations recorded within quick succession by PW.16 at first and PW.11 later can be relied upon to fix the guilt of the accused.

10) We have given our anxious consideration to the relevant evidence. According to prosecution, the incident occurred at about 1:30pm on 21.09.2005 when the accused came to the house and picked up quarrel with the deceased for her purchasing a buffalo instead of giving money to him and she was not heeding his words. The accused became furious and with an intention to kill her, poured kerosene and set her fire. In this context, PW.13-Dr.M.Prasuna, Civil Assistant Surgeon in Kavali area Hospital deposed that at about 1:45 pm, the deceased was brought to the Hospital by her brother (PW.1) with burns and she was admitted in causality ward at about 2:30pm and thereafter she sent Ex.P.20intimation to Kavali I Town PS and also sent Ex.P.15-requisition to PW.11-Judicial First Class Magistrate, Kavali for recording the dying declaration. She further stated that at about 3:45pm, PW.16-the Head

Constable came to Hospital and recorded the dying declaration of the injured under Ex.P.22. This witness certified that patient was conscious and coherent while making statement (vide Ex.P.21). Thereafter, PW.11 came to the causality ward at about 4:00pm and recorded the dying declaration of the deceased under Ex.P.18. She certified the fitness of the declarant before and after recording the statement (vide Exs.P.16 and P.17). She further stated, she was also one of the team of the doctors who conducted post-mortem along with PW.12 on the dead body of the deceased. The evidence of PW.13 was not challenged and she was not cross-examined by the defence side. Therefore, from the evidence of PW.13, the prosecution could establish that:

(i) Within short time after the incident i.e, at about 2:30 pm on 21.09.2005, the deceased was admitted in the causality ward in Area Hospital, Kavali.

(ii) On intimation of PW.13, at first, PW.16 visited the Hospital and recorded her statement under Ex.P.22 at 3:45pm. (iii) On intimation, at 4:00pm, PW.11 visited the Hospital and recorded Ex.P.18-dying declaration.

(iv) During the relevant period of recording both the dying declarations, the deceased was conscious, coherent and in fit condition to give rationale answers as per the certification of PW.13.

It should be noted that the defence has not challenged the fitness of the deceased and no cross-examination was made in this regard to PWs.11, 12, 13 and 16.

11) Then, PW.11 deposed that on 21.09.2005 she received requisition from the Area Hospital, Kavali at 3:40pm, to record the dying declaration of Mekala Suneetha. Accordingly, she reached the Hospital about 4:00pm and recorded the statement of the deceased. The Magistrate deposed that after putting some general questions to the injured and ascertaining her mental capacity to give the dying declaration, she recorded the statement in the question-answer format. After recording, she read over the contents of the dying declaration to the injured and she admitted the contents to be true and singed on the dying declaration. She further stated that the duty doctor was present and had certified the condition of the injured before and after recording the statement. She specifically deposed that she did not allow any person except herself, PW.

13 and her attender while recording the dying declaration. In the cross-examination she denied the suggestion that she did not record the dying declaration of the injured in the room where the injured was and she recorded in the neighbouring room. She denied the further suggestion that the injured did not give the statement and as per the directions of the neighbours, she reduced the statement into writing which was not read over to the declarant.

a) A perusal of Ex.P.18 would show that the deceased stated before the Magistrate that her husband was not looking after her well from the time of marriage; he was beating her; on the morning of the incident, he came in a drunken state and beat her; at about 2:00 hours, her husband poured kerosene on her and set fire and at that time nobody was present

in the house; on hearing her cries and on seeing the flames, her neighbours Krishnaiah (PW.4) and some others came and doused the flames; her neighbours informed the incident to her father and he came and admitted her in the Hospital. This was the statement given by the deceased to the Magistrate. We will discuss the veracity of her statement after discussing the evidence of PW.16.

12) PW.16 deposed that he was the Head Constable of Kavali I Town PS and on 21.09.2005 while he was in the Police Station, he received Ex.P.20-Hospital intimation at about 3:15pm and went there and recorded the statement of the injured at about 3:30pm. The doctor was present and certified about the mental condition of the injured. The injured signed on the statement. He then went to the Police Station and handed over Ex.P.22. In the cross-examination he stated that no other person was present by the side of injured while he was recording Ex.P.22. He denied the suggestion that the mother, brother and neighbours of the injured were present at that time. He denied the further suggestion that injured did not give the contents of Ex.P.22 and the relatives and neighbours of injured informed him the contents. a) In Ex.P.

22, the deceased stated that her marriage with accused was held about 5 years back and they have a son aged 4 years; her husband was doing mason work; he used to consume alcohol sometimes and pick up quarrel with her; on 21.09.

kerosene on her and set fire; when she raised cries, her neighbour Krishnaiah and some others came and doused the flames and on seeing them, her husband sneaked; her brother and father brought her to Hospital.

13) Thus the deceased stated in similar fashion in both her statements to the effect that her husband poured kerosene and set her fire. Coming to the veracity of these two statements, though it was suggested by the defence that she did not give the statements and the version of her relatives and neighbours was only recorded by PWs.11 and 16, the said contention carries no conviction for the reason that in the crossexamination of PWs.1 to 5 it was not elicited that either they tutored the deceased or they themselves have given some version to the Magistrate and the Head Constable. On the other hand, the emphatic evidence of PWs.11 and 16 is that while recording the statement, except themselves and the duty doctor, none others were present.

They being the responsible public servants, have no necessity to record something which was not spoken by the deceased. Therefore, the tutorage as suggested can be safely discarded. Then the possibility of deceased committing suicide by setting fire to herself is concerned, the same can also be disbelieved because the deceased has a tender aged son and having regard to the fact that the accused was addicted to vices, she would not dare to commit suicide for, the boy would become orphan. The version of PWs.1 to 3 that the deceased was angry and rigid type of lady and insist for prevalence of her word etc, cannot be believed.

rightly observed by the trial Court, since the accused and deceased have a little son and if the accused was incarcerated, the boy would be left forloned and therefore, they might have turned hostile and spoken in favour of the accused.

14) So when the facts and evidence are analysed, the statement of the deceased infuses confidence as it was intrinsic, consistent and suffered no inconsistency. Her statement clearly established that it was the accused, who poured kerosene and set her fire and thereby she died on the next day.

15) So, on a conspectus of the entire evidence and other facts and circumstances, we hold that the trial Court rightly convicted and sentenced the accused. There are no merits in this appeal. 16) In the result, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court in S.C.No.263 of 2006. Consequently, miscellaneous applications pending, if any, shall stand closed.

________________________ SURESH KUMAR KAIT, J _________________________ U. DURGA PRASAD RAO, J Date: 30.08.2017 Murthy/scs