T.K. REDDYversusSTATE OF A.P. AND ORS.

A                                 T.K. REDDY
                                         V.

                          STATE OF A.P. AND ORS.

                               AUGUST 23, 2002

B      [S. RAJENDRA BABU AND P. VENKATARAMA REDDI, JJ.]


         Penal Code, 1860: Section 302:

         Murder-Charge against husband of deceased-Two dying
c declarations-One stating that her husband set her on fire and another stating
    that she set herselfon fire-Presence ofaccused-husband at the time ofincident
    contradictory to facts on record-Conviction-Correctness of-Held, it is not
    open to Court to surmise on facts and convict a person-Hence conviction
    under Section 302 /PC cannot be sustained-Evidence Act, 1872-Dying
D   declaration.

             According to the prosecution, on the fateful day, wife of the
    accused-appellant came out of the house with her clothes aflame. PWl and
    PW2, her neighbours extinguished the fire and took her to hospital. PW7,
    a Police Officer, recorded her statement (Exhibit P-5) and subsequently,
E   PW4, the local Magistrate also recorded the statement (Exhibit P-2) of
    the victim/d.eceased.

          In Exhibit P-2, she stated that her husband had been harassing her
    for last three months and on the day of incident he set her on fire after
    pouring kerosene-oil on her body and her brother PW3 brought her to
F   hospital.

        In Exhibit P-5, she stated that her husband had been harassing her
  since her marriage and on the day of incident he came in a drunken state,
  abused and beat her. She could not bear such harassment, therefore she
G poured kerosene oil on her body and set herself on fire. Though her
  husband was present in the house he did not help her, instead her
  neighbours PWl and PW2 brought her to hospital.

          Trial Court convicted the accused-husband relying on the statement
    of the deceased as per Exhibit P-2, since statement as per Exhibit P-5 was
H                                       648
        T.K. REDDY v. STATE OF A.P. [S. RAJENDRA BABU. J.]               649

made when she was hopeful of her survival and wanted to shield her               A
husband but statement as per Exhibit P-2 was made when chances of her
survival was bleak, therefore, she spoke the truth. High Court sustained
the conviction. Hence this appeal.

      It was contended for the appellant that there was a time gap between
recording of the two statements which provided ample opportunity for             B
others to influence the mind of the deceased; besides statement Exhibit
P2 is contrary to the facts available on record.

      Allowipg the appeal, the Court

      HELD: PW! stated that when the incident occurred the appellant             C
was not in the house and he came after his wife, the deceased, was shifted
to the hospital. The evidence given by PW2 does not disclose the presence
of the appellant at the time of the incident and, according to him, she stated
that the cause of incident was her destiny or fate. The statement made by
her as per Exhibit P-2 as regards the presence of the appellant in the house     D
at the time of incident is totally belied. When these hard facts stare in the
face it was not open to the High Court or the Trial Court to surmise on
facts and draw an inference that the deceased made the statement as per
Exhibit P-5 in the hope of her survival and wanted to save her husband
from trouble. That aspect of the case finds no foundation if the whole
evidence is considered. Therefore, the conviction made on the charge             E
against him under Section 302 !PC cannot be sustained. [651-C-F)

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
538 of 1993.

     From the Judgment and Order dated 25.11.1992 of the Andhra Pradesh          F
High Court in Crl. A. No. 1992.

     A.D.N. Roo and Nirmal Chopra for the Appellant.

     Ms. T. Anamika for Guntur Prabhakar for the Respondent.
                                                                                 G
     The Judgment of the Court was delivered by

     RAJENDRA BABU, J. The appellant before us is charged with having
committed murder of his wife Ramulamma on 23-12-1988 by pouring kerosene
on her and setting her on fire at about 1:30 p.m. in his house punishabl~
under Section 302 IPC. The appellant having pleaded not guilty was tried for     H
    650                    SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A   the offence charged against him, convicted and sentenced to life imprisonment
    with a fine of Rs. 1500 in default to undergo imprisonment for two months.

          The appellant is the husband of the deceased Ramulamma having married
    her about 16 years prior to the date of her death. He is a driver with the
    Andhra Pradesh Road Transport Corporation. While the appellant and the
B   deceased used to live in Shanthinagar Colony in Miryalguda Parvatha Reddy
    [PW. I] and Lakshmi Reddy [PW.2] are their neighbours. Laxma Reddy [PW.3]
    is the younger brother of the deceased Ramulamma.

          On 23-12-1988 at about 1.30 p.m., the deceased Ramulamma came out
C   of the house with her clothes aflame. PW. I and PW.2 doused the fire with
    the help of others and took her to the hospital. PW.7, who is the Police
    Officer, recorded her statement as per Exhibit P.5 and Ramulamma died at
    2 a.m. on 24-12-1988. Prior to her death, the Local Magistrate [PW.4] was
    requested to record statement of Ramulamma (deceased) and at about 7.20
    p.m. on 23-12-1988 he recorded her statement in the hospital as per Exhibit
D   P.2. In that statement, she stated that her husband was troubling her.for about
    3 months and on the afternoon of the day of the incident when she was at
    home her husband brought kerosene in a tin and poured the same over her
    and set her on fire with match stick. She stated that her husband asked her
    not to go out by covering her with a blanket but she came out weeping, in
    the meantime her younger brother Laxma Reddy came and he brought her to
E   the hospital in a rickshaw. She further stated that her husband is used to
    drinking and after drinking would abuse her in vulgar tenns. The police had
    recorded her statement as per Exhibit P.5 on 23.12.1988 at about 3.20 p.m:
    in the Civil Hospital to the effect that right from the time of her marriage,
    her husband used to abuse and beat her in his drunken state and used to
F   harrass her in many ways and on 23.12,1988 at about 1.30 p.m. her husband
    came home in a drunken state and abused and beat her at that time her
    children were absent in the house since they had gone to school. ·unable to
    bear the harassment of her husband, and having got disgusted in he.r life. She
    poured kerosene on her body and set herself on fire with a match stick. She
    further stated that her husband was present in the house at that time and he
G   did not help her but her neighbours Parvatha Reddy [PW.I] and Lakshmi
    Reddy [PW.2] brought her to the hospital for treatment.

          The defence raised in the case is that there was a time gap between the
    two statement as per Exhibits P-2 and P-5 and she was obviously influenced
H   by others during the time available between the two statements.
         T.K. REDDY v. STATE OF A.P. [S. RAJENDRA BABU. J.]                  651

      The Trial Court and the High Court proceeded on the basis that the             A
statement made by her as per Exhibit P.5 to the police was in the hope of
her survival and wanted to shield her husband in that event, but when she
became aware th1t her end had come near, she decided to speak out the truth
and, therefore, she made the statement as per Exhibit P.2 It is on this basis
the High Court and the Trial Court sustained the conviction. Apart from the
statement as per Exhibit P-2 there is no other material on record regarding          B
the offence charged against the appellant.

       The learned counsel for the appellant strongly criticized the view taken
by the High Court and Trial Court and submitted that there was ample
opportunity for others to influence the mind of the deceased and the statement       C
made in the course of Exhibit P.2 is contrary to the facts available on record.
We find considerable force in the submission made on behalf of the appellant.
Parvatha Reddy [PW. I] stated that the incident in question occurred at about
1.30 p.m. and at that time the appellant was not in the house and he came
after the deceased Ramulamma was shifted to the rickshaw to take her to the
hospital. The evidence given by Lakshmi Reddy [PW.2] does not disclose the           D
presence of the appellant at time of the incident and, according to him she
stated that the cause of incident was her destiny or fate. The statement made
by her as per Exhibit P.2 as regards the presence of the appellant in the house
at the time of incident is totally belied. When these hard facts stare in the face
it was not open to the High Court or the Trial Court to surmise on facts and         E
draw an inference that the deceased Ramulamma made the statement as per
Exhibit P-5 in the hope of her survival and wanted to save her husband from
trouble. That aspect of the case finds no foundation if the whole evidence
is considered. Therefore, we are of the view that the conviction made on the
charge against him under Section 302 !PC cannot be sustained.
                                                                                     F
        Thus the appeal stands allowed and the conviction and sentence are set
aside by acquitting him of the charge under Section 302 !PC. If the appellant
is still in prison, he must be set at liberty at once.

S.K.S.                                                         Appeals allowed.




                   ;A