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ACQUITTAL under Section 302 read with Section 201 of the Indian Penal Code 1860 (hereinafter referred to as the ‘IPC’).= Admittedly, there was a divorce between the parties. Therefore, the question of demand of dowry or ill-treatment or harassment could not arise after 8 years of divorce decree by the court. The mother of Ratna has deposed about the illicit relationship of the appellant and another woman and the appellant wanted to marry that woman. In case the parties had separated by a divorce through court, we fail to understand how Ratna (deceased) or her parents were concerned about such a relationship. 15. It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same.= whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant (s). – In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The High Court did not consider the matter in correct perspective nor observed the parameters laid down by this court to interfere against the order of acquittal. In view of the above, the appeal is allowed and the judgment and order of the High Court is set aside. The judgment and order of the Sessions Court is restored. The appellant is on bail. His bail bonds stand discharged.

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English: Hight court of the state of Andhra pr...

English: Hight court of the state of Andhra pradesh located at hyderabad. self-photographed. (Photo credit: Wikipedia)

 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.248 of 2007
Bhadragiri Venkata Ravi …Appellant
Versus
Public Prosecutor
High Court of A.P., Hyderabad …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed against the judgment and order dated
13.9.2006, passed by the High Court of Andhra Pradesh at Hyderabad
in Criminal Appeal No.863 of 2004, by way of which the High Court
reversed the judgment and order of the Sessions Judge, Vijianagaram
dated 19.10.2001, passed in Sessions Case No.40 of 2001, by way of
which and whereunder the appellant stood acquitted of the chargesPage 2
under Section 302 read with Section 201 of the Indian Penal Code
1860 (hereinafter referred to as the ‘IPC’).
2. Facts and circumstances giving rise to this appeal are that:
A. The appellant had developed intimacy with Ratna Kumari
(deceased) and got an inter caste marriage, registered on 26.10.1991
under the Hindu Marriage Act, 1955. Their married life was not very
happy, therefore, Divorce Petition being O.P. No.37/92 was filed and
the same was rejected by the Family Court on the ground that one
year had not elapsed after their marriage.
B. Thus, a fresh Divorce Petition, i.e., O.P. No.65 of 1992 was
filed on 31.12.1992. Their marriage was dissolved and the appellant
and deceased stood separated. There was no child out of the said
wedlock.
C. The deceased was a well qualified woman as she has obtained
M.Com., LL.B. qualification. In order to earn her livelihood, she had
been giving tuitions to the students in a rented premises i.e. House
no.754, Phoolbagh Colony, Vijianagaram. The appellant, as alleged,
in spite of their divorce, was having visiting terms with the deceased.
2Page 3
D. On 15.4.2000, Ratna Kumari was admitted in the Govt.
Headquarter Hospital, Vijianagaram at 1.30 p.m. with 44% burns.
Her statement/complaint was recorded by the head constable of police
wherein she had stated that a stove full of kerosene oil fell upon her
and thus, she suffered burn injuries. On the basis of the same an FIR
was registered.
E. On the same day, her dying declaration was recorded by the
Executive Magistrate after getting certificate of fitness from the
Doctor, wherein a similar statement had been recorded. She remained
admitted in the hospital.
On 28.4.2000, her another dying declaration was recorded by
the Executive Magistrate wherein she alleged that on 14.4.2000 at
about 1.30 p.m. while the deceased was cooking food and all the
students had gone home, the appellant poured kerosene on her body
and threw the burning stove on her, due to which she received severe
burn injuries. The deceased raised hue and cry which attracted some
of the neighbours.
F. Ratna Kumari (deceased) expired on 3.6.2000 in the hospital
and on getting the information, the police altered the FIR into Section
302 and 498A IPC. The doctor conducted the post mortem and
3Page 4
opined that the cause of death was septicemia shock due to antemortem burns.
G. After necessary investigation, the police filed charge sheet on
2.12.2000 against the appellant and his parents for offences under
Sections 302 and 498A IPC. After committal of the proceedings, the
trial commenced on 6.8.2001. After conclusion of the trial, the Trial
Court vide judgment and order dated 19.10.2001 acquitted all the
accused observing that prosecution could not prove any case
whatsoever against either of them as there was no iota of evidence to
show the involvement of either of them.
H. Aggrieved, the State preferred Criminal Appeal No.863 of 2004
before the High Court of Andhra Pradesh at Hyderabad. The court
dismissed the appeal against the parents of the appellant at the stage of
admission itself. The appeal was admitted only qua the appellant. The
appeal of the State has been allowed by the High Court vide judgment
and order dated 13.9.2006, convicting the appellant under Section 302
IPC and awarding the sentence to undergo life imprisonment and to
pay fine of Rs.5,000/-, in default, to undergo further S.I. for a period
of one year. Appellant was acquitted of all other charges.
Hence, this appeal.
4Page 5
3. Shri H.S. Phoolka, learned senior counsel appearing for the
appellant has submitted that admittedly after the marriage the parties
had separated themselves and therefore, there was no question of
living as husband and wife even after 8 years of their divorce. Just
immediately after the incident when Ratna Kumari, deceased was
taken to the hospital, she lodged a complaint/FIR which was recorded
by the Head Constable though after her death the same was treated as
her dying declaration. On the same day, her dying declaration was
also recorded by the Executive Magistrate and both these dying
declarations clearly speak non-involvement of the appellant or
anybody else. It is a clear case of accident. The deceased was tutored
by her mother and hence in third dying declaration, the appellant and
his parents were enroped, in the offence. The declaration dated
28.4.2000 is self contradictory. The appeal deserves to be allowed.
4. Per contra, Shri Nachiketa Joshi, learned counsel appearing for
the State has submitted that the High Court has appreciated the
evidence and the dying declarations of Ratna (deceased) recorded on
15.4.2000 and on 28.4.2000, and the latter clearly involved the
appellant and his parents. The High Court has taken a lenient view
5Page 6
and did not admit the appeal against the parents of the appellant.
While deciding the appeal, the High Court has met all the parameters
laid down by this Court for interfering against the order of acquittal.
Hence, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
The FIR/dying declaration recorded on 15.4.2000 reads as
under:-
“I belong to Phoolbagh Colony, Vijianagaram. I married
10 years back with Ramana of Kamma while I was
studying at Tirupathi. After one year living together, we
got divorced through Vijianagaram District. I am living
alone and gave tuitions to children and studying law.
I forgone my relation with my own people. There are
nobody of my own. Yesterday on 14.04.2000 night at
about 8 hours time the current was cut off. I lit my
kerosene stove and prepared tea. In the darkness my
polyster saree worned by me got fire and my entire body,
chest, hands, face, legs, foot and some portion of the
stomach were burnt. I phoned to my known friend
i.e. Bhadragin Lalita of Pradeep Nagar. She came and
took me to the Pradeep Nagar. By then I purchased
ointment and applied it. Not cured. Today i.e. 15.04.2000
morning by 10 hours I came to Government Hospital,
Vijianagaram with the help of my friend Bhadragin
Lalitha. Nobody is aware due to air and rain while I was
burning. I poured water and put of. Then I felt nothing.
Doctor gave medicines.” (Emphasis added)
6Page 7
The Doctor has put an endorsement on the declaration that she
was fit to make the declaration and signed the same. The declaration
bears signature of the maker (deceased) and the person recording the
same.
6. The dying declaration recorded by the Executive Magistrate
dated 15.4.2000 reads as under:
“Yesterday night at about 8 hours when I was
litting the kerosene stove to prepare tea, huge winds are
coming in the meanwhile my saree was burnt and flames
came out. Likewise my body was burnt. I have no
children. I got divorced with my husband through Court
ten years back. I alone present when this happened. There
are no disputes in between myself and my husband. My
husband never came to my house after divorce. There
are no disputes between myself and neighbours. Though I
raised cries none of neighbours came as huge winds are
flowing. Hence it might not be heard. My friend Lalitha
took me to the Hospital. As myself has poured water
vessel on me available in the kitchen. The flames were
put of. I have no relationship with my parent-in-law’s
house. This is happened unexpectedly. No body did
this.” (Emphasis added)
This declaration also contains the endorsement by the Doctor in
respect of the fit condition of the maker. It bears the signature of the
deceased and the Executive Magistrate.
7Page 8
7. However, in the third dying declaration made on 28.4.2000
before the Magistrate, she has stated that she had been brought to the
hospital by her husband Ravi, mother-in-law Lolitha, and father-inlaw Gangaraju. That they got married on 26.10.1991. She was
preparing food on kerosene stove in the mid day between 1.30 to 2.00
p.m. on 14.4.2000. Her husband asked her whether she had paid the
electricity bill. She replied that she could not deposit as the office was
closed. Her husband sent one student, namely Matcha Basava Raju to
the electricity office to see whether it was opened or closed. He came
back and answered that it was closed. However, there was exchange
of words between them. He took up a kerosene tin lying there and
poured the kerosene on her shoulders and immediately threw her on
the burnt stove. She got burn injuries. Her husband took the water
from the bath room and poured on her. Srinu, a next door neighbour
came there and also poured water on her. The flames were put of. No
neighbour came except Srinu. Her husband requested Srinu not to
reveal anything about the incident to anybody. Her husband arranged
some medicines and gave injections to her. He gave her tablets
frequently. He had given six injections within a period of 3 days at
home. Her parents-in-law came from Rajahmundry on 15.4.2000.
8Page 9
They also requested the deceased not to reveal anyone about the
incident. On 16.4.2000, her husband and parents-in-law took her
to a private hospital. The doctor gave her glucose and one injection.
On the same day at about 12 noon, she was taken to Government
hospital on cot by her husband and in-laws and thereafter, none
of them could be found. She had earlier made a statement before the
police as narrated by her husband and in-laws. She has no
consciousness to such extent, but the persons were visible.
Previously, the police or Magistrate had not taken any statement
forcibly from her.
8. The first two dying declarations were made in the Government
Headquarter Hospital, Vijianagaram and the Magistrate had reached
there on being called by the police. There is no inconsistency
between the first two dying declarations and it is evident from the said
dying declarations recorded on 15.4.2000 that both of them had been
recorded in the Government Headquarter Hospital, Vijianagaram.
The third dying declaration makes it evident that on 15.4.2000
she had not been taken to the Government Hospital and her in-laws
were not available on 14.4.2000. Her husband had been treating her at
9Page 10
home and had also given her injections for two-three days. Her
parents-in-laws reached on 15.4.2000 from Rajahmundry and then she
was admitted to the private hospital on 16.4.2000. As she could not
recover therein, then she was transferred to Government Headquarter
Hospital, Vijianagaram on that day.
9. Satyavarapu Anasuya (PW.1), mother of the deceased has
deposed that Ratna (deceased) used to tell her that she was harassed
by her husband to bring dowry, though she had given sufficient dowry
at the time of marriage. She came to know about the burn injuries of
her daughter on 15.4.2000 and immediately went to the Government
Hospital. There she found the appellant and his parents. On being
asked, Ratna Kumari told her that she suffered the burn injuries by
accident. Ten days later, she told the witness that the appellant poured
kerosene on her and pushed her on a burning stove, that is why she
sustained burn injuries. That her another daughter was a police
constable and therefore, the appellant apprehended some action by the
police against him and his parents. She has further deposed that prior
to the death of her daughter, the appellant had developed illicit
relationship with another woman just after Sankranthi festival and she
10Page 11
had been informed about this by her daughter that appellant wanted to
marry that woman.
10. Kondru Srinivasrao (PW.7), a second year student and
neighbour of the deceased used to come for tuition to the deceased.
He deposed that he had heard shrieks coming from the house of Ratna
and reached the place of occurrence. He found Ratna in bath room
and appellant was pouring water on her. On her request, the witness
also brought water from the well and given to the appellant who
poured the water on her. He has further deposed that he had not told
about this incident to anybody.
11. Matcha Basavaraju (PW.8), a young student coming for tuition
to the deceased deposed that he was not knowing the husband of
Ratna but he had seen the appellant going on his scooter in Phoolbagh
colony. He had never seen the appellant in the house of Ratna.
12. Dr. Ch. Suryanarayana (PW.16) deposed that he had signed the
dying declaration dated 28.4.2000. That Ratna was having 44% of
burns. The record of the hospital revealed that she had been admitted
11Page 12
in the hospital on 14.5.2000 and had been given regular treatment
and blood many times between 14.5.2000 and 31.5.2000. As per the
hospital record she had been brought there by Lalita, a friend of Ratna
(deceased). She had given the name of her husband as Ramana and it
has further been mentioned in the hospital record that the patient
herself had stated that she suffered with burn injuries accidentally.
13. The Trial Court has found material inconsistencies in the case
of the prosecution and did not see any reason whatsoever to rely upon
the dying declaration dated 28.4.2000 as the contents thereof were
admittedly false and could not be relied upon. If the dying declaration
has been recorded by the Executive Magistrate on 15.4.2000 in the
Government hospital, the question of her being treated by her husband
for 2-3 days and then her admission in a private hospital did not arise
at all. Her version that she was admitted to the Government
Headquarter hospital, Vijianagaram on 16.4.2000 could not be true.
The contents of the dying declaration dated 28.4.2000 being full of
contradiction do not inspire confidence.
12Page 13
14. Admittedly, there was a divorce between the parties. Therefore,
the question of demand of dowry or ill-treatment or harassment could
not arise after 8 years of divorce decree by the court. The mother of
Ratna has deposed about the illicit relationship of the appellant and
another woman and the appellant wanted to marry that woman. In
case the parties had separated by a divorce through court, we fail to
understand how Ratna (deceased) or her parents were concerned about
such a relationship.
15. It is a settled legal proposition that in case there are apparent
discrepancies in two dying declarations, it would be unsafe to convict
the accused. In such a fact-situation, the accused gets the benefit of
doubt. (Vide: Sanjay v. State of Maharashtra, (2007) 9 SCC 148;
and Heeralal v. State of Madhya Pradesh, (2009) 12 SCC 671).
16. In case of plural/multiple dying declarations, the court has to
scrutinise the evidence cautiously and must find out whether there is
consistency particularly in material particulars therein. In case there
are inter-se discrepancies in the depositions of the witnesses given in
support of one of the dying declarations, it would not be safe to rely
13Page 14
upon the same. In fact it is not the plurality of the dying declarations
but the reliability thereof that adds weigh to the prosecution case. If
the dying declaration is found to be voluntary, reliable and made in a
fit mental condition, it can be relied upon without any corroboration.
But the statements should be consistent throughout.
17. In case of inconsistencies, the court has to examine the nature
of the same, i.e. whether they are material or not and while
scrutinising the contents of various dying declarations, the court has to
examine the same in the light of the various surrounding facts and
circumstances. In case of dying declaration, as the accused does not
have right to cross-examine the maker and not able to elicit the truth
as happens in the case of other witnesses, it would not be safe to rely
if the dying declaration does not inspire full confidence of the court
about its correctness, as it may be result of tutoring, prompting or
product of imagination. The court has to be satisfied that the maker
was in a fit state of mind and had a clear opportunity to observe and
identify the assailant (s).
(Vide: Smt. Kamla v. State of Punjab, AIR 1993 SC 374; Kishan
Lal v. State of Rajasthan, AIR 1999 SC 3062; Lella Srinivasa Rao
14Page 15
v. State of A.P., AIR 2004 SC 1720; Amol Singh v. State of
Madhya Pradesh, (2008) 5 SCC 468; State of Andhra Pradesh v.
P. Khaja Hussain, (2009) 15 SCC 120; and Sharda v. State of
Rajasthan, AIR 2010 SC 408).
18. This court has time and again laid down parameters for
interference by a superior court against the order of acquittal. In
exceptional cases where there are compelling circumstances and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear in
mind the presumption of innocence of the accused and further that the
trial Court’s acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.
19. The High Court did not consider the matter in correct
perspective nor observed the parameters laid down by this court to
interfere against the order of acquittal.
15Page 16
20. In view of the above, the appeal is allowed and the judgment
and order of the High Court is set aside. The judgment and order of
the Sessions Court is restored. The appellant is on bail. His bail
bonds stand discharged.
………………………………J.
(Dr. B.S. CHAUHAN)
………………………………J.
(DIPAK MISRA)
New Delhi,
May 29, 2013
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