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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 366 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 367 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 368 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. 374