L. Narasimha Reddy, J.@mdashThe sole accused in S.C. No. 37 of 2007 on the file of the Special Judge for Trial of offences under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989-cum-V Additional District & Sessions Judge, Nellore was tried for the offence of committing murder of Smt. Shaik Rahamthubi in the morning of 21.07.2006 at Atmakur. Through its judgment, dated 28.01.2010, the trial Court convicted him of the said offence and imposed the punishment of imprisonment for life and fine of Rs. 1,000/-, in default to undergo simple imprisonment for one month.
2. The deceased is said to have been married to one Sri Khader Basha and the couple had two children out of their wedlock. However, she is said to have deserted her husband as well as children and started living at Atmakur, Nellore District and was working as Nurse, in B.S.R. Hospital at that place. The accused is an unmarried person. Illicit relationship is said to have developed between the accused and the deceased. The deceased is said to have joined the accused as a tenant in the premises. It is also stated that the accused borrowed some amount from the deceased with a promise to repay it by doing work in Kuwait. About two years prior to the incident, the accused is said to have gone to Kuwait and during that period, his sisters are said to have evicted the deceased and she started living in another premises. In the first week of January 2006, the accused is said to have returned from Kuwait and thereupon, the deceased started demanding repayment of the amount borrowed from her. The accused is said to have tried number of times to take the deceased to his house, but the latter declined.
3. On 21.07.2006, the deceased is said to have left her house to join the duty in the hospital and on the way, she stopped at the Tea Stall. The accused is said to have come there and took her to his house, though she was reluctant. It was also alleged that when the accused was forcing the deceased to enter the house, she came out and started leaving the place. At that stage, the accused is said to have taken a plastic tin kept in Varandah and poured the acid in the tin upon the deceased. She is said to have gone to the same hospital where she was working.
4. On receiving the intimation from the authorities of the hospital, P.W. 15, the Sub-Inspector of Police, Atmakur, visited the hospital and recorded the statement, Ex. P16, from the deceased. Crime No. 91 of 2006 was registered. Thereafter, a requisition was given to the Jurisdictional Magistrate, P.W. 10. The Magistrate reached the hospital on 26.07.2006 and recorded the statement of the deceased, which was marked as Ex. P12. Since the condition was getting deteriorated, the deceased was shifted to Osmania General Hospital, Hyderabad and while undergoing treatment in that hospital, she died on 27.08.2006. On receiving the information about the death of the deceased, the Station House Officer, Atmakur altered the provision of law in the First Information Report and took up the investigation. Ultimately, the First Information Report was filed alleging, offence punishable u/s 302 I.P.C.
5. On the accused pleading not guilty, the trial was conducted wherein, P.Ws. 1 to 16 were examined and Exs. P1 to P20 were marked. M.Os. 1 and 2 were also taken on record. The nature of disposal given by the trial Court has already been indicated.
6. Sri T. Bal Reddy, learned Senior Counsel for the accused, submits that though there are two dying declarations, there is variation between them on material aspects and the trial Court was not justified in convicting the accused. He contends that several witnesses that were examined by the prosecution turned hostile and hardly there existed any corroboration for the dying declarations. He submits that the very fact that the deceased was alive for 39 days after the incident discloses that there was no intention on the part of the accused to kill her and the conviction and sentence ordered by the trial Court against the accused cannot be sustained in law.
7. Learned Additional Public Prosecutor, on the other hand, submits that the two dying declarations i.e. Exs. P12 and P16 are consistent on material aspects and the contradiction if at all was only on trivial aspects, unrelated to the incident. She submits that notwithstanding the fact that some of the witnesses examined by the prosecution turned hostile, the dying declarations as well as the medical evidence are sufficient to hold the accused guilty, particularly when he did not dispute his intimacy with the deceased.
8. The deceased was working as a Nurse at Atmakur after she deserted her husband and children. Obviously taking advantage of her loneliness, particularly when she joined as a tenant in his premises, the accused, an unmarried person, is said to have developed illicit intimacy with her. In addition to receiving rent from the deceased, the accused is also said to have taken some amount as loan, from the deceased, though the exact figure is not available. The record also discloses that the deceased was evicted from the premises of the accused by his sisters when he was in Kuwait. Thereupon, the deceased took another premises on rent.
9. 15 days before the incident, the accused is said to have landed from Kuwait and then started his efforts to get nearer to the deceased. Obviously, because of the nature of treatment given to her in the absence of the accused by his sisters, the deceased did not evince any interest. On the fateful day i.e. on 21.07.2006, the deceased was said to be taking tea at a Stall. The accused came there and took the deceased to his house, though she was reluctant. It is at the house of the accused, that acid was said to have been poured upon the deceased, when she was reluctant to enter his house.
10. It is, no doubt, true that there are no eye witnesses to the incident and many witnesses, ranging from P.W. 1, the father of the deceased, P.Ws. 2 and 3, the sisters, P.W. 4, a Ward Member of the locality, P.W. 5, the Tea Stall owner, and P.W. 6, a Mason residing nearby, turned hostile. All the same, the prosecution presented two dying declarations, marked as Exs. P12 and P16.
11. This is a rare case in which the injured person has straightaway rushed to the hospital with serious acid burns and incidentally, the hospital was the place where she was working. Taking into account, the gravity of the situation, the Doctor, P.W. 7, working in the hospital gave intimation to the Sub-Inspector of Police, P.W. 15. The Sub-Inspector of Police rushed to the hospital immediately and recorded the statement of the deceased, which is marked as Ex. P16. The deceased stated that she was residing as a tenant in the house of the accused, he took a sum of Rs. 1,000/- from her promising that he would repay it after coming from Kuwait and during his absence, the sisters of the accused evicted her. She further stated that on 21.07.2006, she got ready after prayer and when she was waiting in a Tea Stall, the accused came to that place. It was also stated that the accused held her hand and took her, may be affectionately up to his house and when she was not inclined to enter the house, the accused poured acid upon her from a tin, which was there in the Varandah.
12. If these facts are true and not established to be false, the case against the accused virtually stands proved. The importance given to the dying declarations is phenomenal. Though at times, the Courts may insist that there must be corroboration to the dying declarations, much would depend upon the surrounding circumstances. No enmity between the deceased and the accused is suggested and on the other hand, the accused did not dispute the fact that he has illicit intimacy with the deceased. He has also not denied the fact that he met the deceased on 21.07.2006.
13. It appears that the authorities of the hospital as well as the police were confident that the deceased would recover from the injuries. However, when they sensed that the situation is getting deteriorated, they gave intimation to the Jurisdictional Magistrate, P.W. 10, and he, in turn, recorded the dying declaration, Ex. P12. A perusal of this declaration discloses that there was some discrepancy about the amount said to have been borrowed by the accused from the deceased. Barring that, in all material aspects, it is nothing but a replica of Ex. P16. We are aware of the fact that if there existed more than one declaration and there is serious contradiction between them, the acceptability thereof gets adversely affected. Such, however, is not the case here. Exs. P12 and P16 are consistent with each other on material aspects, pertaining to the occurrence.
14. Extensive arguments are advanced by the learned Senior Counsel to the effect that even if the accused can be said to have poured the acid, it may not be treated as the one in the process of committing the murder of the deceased. Learned Additional Public Prosecutor has strongly resisted this argument.
15. The record does not disclose the existence of any enmity or ill-will between the accused and the deceased. This is an unfortunate case where a woman, who deserted her spouse, started living separately and came in contact with the accused, an unmarried person. The relationship between them was such that even while being tenant and permitting the accused to share company with her, the deceased gave money to him. May be on account of the fact that she was evicted by the sisters of the accused during his absence, she was a bit annoyed and accordingly, she was not inclined to live with the accused. In Ex. P16 itself, the deceased stated that the accused took her to his house by holding her hand. That only indicates the residue of relationship between them. If these facts are taken into account, pouring of acid by the accused cannot be treated as an effort to put an end to the life of the deceased. The fact that the deceased survived 39 days after the incident indicates that the effort of the accused was more to record his protest, may be in a violent manner, than to commit murder with a clear intention. The case, according to us, fits into Part II of Section 304 I.P.C.
16. Hence, the Criminal Appeal is allowed in part. The conviction ordered in S.C. No. 37 of 2007 on the file of the Special Judge for Trial of offences under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989-cum-V Additional District & Sessions Judge, Nellore, dated 28.01.2010, against the appellant-accused, is modified to be the one u/s 304 Part-II I.P.C. and the sentence is modified to be the one of Rigorous Imprisonment for seven (7) years and fine of Rs. 1,000/- (Rupees one thousand only), in default to undergo simple imprisonment for a period of one month.
17. The miscellaneous petition filed in this appeal shall also stand disposed of.
