THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.A.No.1755 of 2007 JUDGMENT: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) 1. This Criminal Appeal is preferred under Section 374(2) Cr.P.C. to set aside conviction and sentence imposed in Sessions Case No.1 of 2007 dated 30.10.2007 on the file of the Court of Principal Sessions Judge, Nalgonda against the appellant-accused (for short ‘the accused’). 2. The accused was tried for offences punishable under Sections 498-A, 302 IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 and was found guilty of committing the offence punishable under Section 302 IPC and was accordingly convicted under Section 235(2) Cr.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- and in default of payment of the fine amount, to undergo simple imprisonment for six months thereunder and found the accused not guilty of committing the offence punishable under Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act and accordingly acquitted him of those offences, whereas by virtue of the conviction and sentence imposed against him for the offence punishable under Section 302 IPC, the present appeal is preferred. 3. It is necessary to look into the prosecution version before going into the merits of conviction and sentence imposed, which is as follows: 4. The accused is the resident of Ramshivaji Nagar, Alair and he is driver by profession. He married one Anitha D/o Marripalli Bixapathi (defacto-complainant) who died (for short ‘the deceased’). The defacto-complainant performed the marriage of the deceased with the accused two years prior to the occurrence in question and he paid Rs.15,000/- to the accused towards dowry besides giving 1 ½ thula gold, silver chains, utensils etc., to them. They lead conjugal life happily for about six months and they were also blessed with a male child. Thereafter, the accused got addicted to alcohol and remained idle without doing any work and started harassing the deceased both mentally and physically with a demand to bring additional dowry of Rs.10,000/- from her parents. On 12.9.2006 at about 2.00 p.m. the accused picked up a quarrel with the deceased with regard to pledging of pusthelathadu with one Renuka and doused her with kerosene and set her ablaze with an intention to kill her and as she raised hue and cry, their neighbours rushed to the house and extinguished the flames and shifted her to the Government Area Hospital, Bhongir and from there she was shifted to Gandhi Hospital, Secunderabad, where she succumbed to the injuries received by her on 13.9.2006 at about 10 a.m. The deceased gave statement, while she was alive, which was recorded by the IV Additional Chief Metropolitan Magistrate, Hyderabad about the incident. Further, on a report given by the defacto-complainant, the case was registered in Crime No.97 of 2006 under Sections 304-B and 302 IPC and Sections 3 and 4 of Dowry Prohibition Act on the file of Alair P.S. Further, the Police after conducting necessary investigation, filed charge sheet. 5. For the prosecution, the defacto-complainant and 14 others were examined as P.Ws.1 to 15 and marked Exs.P1 to P7 and M.Os.1 to 3. For the defence, none was examined and no documents were marked, whereas basing upon the material available, the trial Court imposed the conviction and sentence referred earlier. 6. It is the contention of learned counsel for the appellant-accused that the alleged dying declaration marked as Ex.P5 is the main basis for imposing the conviction and sentence for the offence punishable under Section 302 IPC against the accused, which does not disclose in fact as to who drenched the deceased with kerosene and set her ablaze, which is fatal to the prosecution. Further, as per the medical evidence recorded, she received 95% burns and in that condition she may not be in a position to speak, which rules out that in fact she gave the alleged dying declaration and further good part of the investigation of the case was done without registering the case during which period only the police according to the prosecution sent a requisition to the learned Magistrate to record the dying declaration of the deceased. 7. The points for consideration for the disposal of the appeal therefore are; (1) Whether the prosecution placed sufficient evidence against the accused with regard to the charge framed under Section 302 IPC? (2) Whether the trial Court properly examined the matter and arrived at correct findings and the conviction and sentence imposed by the trial Court are sustainable or not? 8. POINT No.1 Here the alleged dying declaration of the deceased is to be mainly considered with reference to the charge under Section 302 IPC against the accused. By virtue of Section 32 of the Evidence Act, any statement given by the deceased with regards to the alleged incident and consequently with regards to the cause of death form substantial evidence to establish the charge under Section 302 IPC against the accused. It is an exception to the question of admissibility of hearsay evidence. It is also a well established principle of law that on the basis of a sole dying declaration, conviction and sentence can be imposed against concerned accused provided all the surrounding circumstances would corroborate with the same. 9. In NANHAR v. STATE OF HARYANA[1], it is held by the Supreme Court that the dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker and it should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts and it should not be the result of tutoring, but dying declaration in the present case does not fulfil these conditions. 10. Further in P.V.RADHAKRISHNA v. STATE OF KARNATAKA[2], it is held by the Supreme Court that the situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement that it is for that reason the requirements of oath and cross- examination are dispensed with, besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye- witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence and though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination that such a power is essential for eliciting the truth as an obligation of oath could be, that is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. While recording dying declarations, these principles or observations are to be kept in mind. 11. The deceased in her dying declaration which is marked as Ex.P5 stated “Due to debts, quarrelled with me to give money and closed the doors and poured kerosene on me and set fire and fled away. My sister-in-law joined me in hospital.” It also provides that the contents of the statement were read over to the patient, which she admitted to be true and correct and the duty medical officer of the hospital was present while making the statement. 12. Quite surprisingly, there is nothing specifically as to who actually did the said acts. Without any clarity as to who actually did those acts, it is not possible to come to any acceptable conclusion about the actual culprit. P.W.12-IV Additional Chief Metropolitan Magistrate, Hyderabad deposed with regards to the dying declaration of the deceased. According to her, she received Ex.P1 requisition from the S.H.O. concerned about recording the dying declaration of the deceased in the female ward of Gandhi Hospital, Secunderabad and she proceeded to the hospital and recorded the statement of the deceased. She also deposed that the patient sustained 85% to 90% burns, whereas she denied that the patient sustained 95% burns and she was not able to understand any questions put to her and give rational answers about the incident consequently. 13. The way the so-called dying declaration was recorded amply provides that it was so done just sitting or working as a post-office. It is the duty of every Officer who is entrusted with the work of recording the dying declarations to see that it is carried out consciously, otherwise it amounts to shirking his/her responsibility. He/she has to ensure how such victim received such injuries and who was responsible for that collecting necessary information about all relevant details including the identity of the culprit from the victim. The responsibility of any Judicial Officer in view of the role he is expected to play and his/her experience, as such in the system of administration of justice is more while recording a dying declaration. As laid down in catena of decisions of this Court and the Apex Court, the declaration should be taken in the language in which it is made using as far as possible exact words of the declarant and if it is not a continuous statement, but was elicited in answers to questions, the exact questions and answers should be noted. In other words, the dying declaration should be recorded in questions and answers form where ever it is necessary. No leading question can be put to such person to elicit a particular answer. In fact, the need of putting necessary questions to such victim while recording his/her dying declaration actually arises when there is no clarity with regard to what might have transpired exactly prior to and at the time of such incident alleged and the identity of the real culprit, whereas unless such clarity is ascertained, it may not be possible to come to a definite conclusion as to how such incident really took place and the complicity of the culprit in the matter. The purpose of recording the dying declaration is to determine if there was any foul play by reason of which she or he suffered which ultimately resulted in his/her death and to punish those who involved in causing the death of the victim. Unconscious recording of dying declarations is likely to defeat the very purpose of the concept of it and also the concept of punishing those who are responsible for that consequently. In other words, unconscious recording of a dying declaration without collecting necessary material without putting leading question is against the cardinal principles of the system of the administration of justice. If the criminals are not dealt with properly, it is likely to result in violence and chaos in the society and uncertainty or insecurity and fear in the minds of the individual of the society. The conceptuality that justice is to be done to the accused and also the accuser shall be borne in mind while recording a dying declaration which would ensure fairness in doing so. 14. With regards to the availability of any corroborated circumstances in the context, P.W.1 and P.W.2 the parents of the deceased, P.W.3 paternal aunt of the deceased, P.W.5 maternal uncle of the deceased, P.W.9 and P.W.10 were examined with regards to the conduct of the accused towards the deceased. P.Ws.1, 2, 3, 5 & 10 deposed that the deceased informed them when they met her subsequent to the alleged incident that the accused drenched her with kerosene and set her ablaze, whereas there is no incriminating evidence from the other witnesses. According to P.W.4, he was the neighbour of the accused and the deceased and both of them were living amicably except involving in some small disputes. P.Ws.6 to 9 examined with reference to the same context, did not support the prosecution version about the complicity of the accused in the matter and hence they were declared as hostile witnesses of the prosecution on its behalf. 15. P.W.11-MRO, Alair deposed about conducting inquest over the dead body in the presence of mediators and coming to opinion that she died having received burn injuries. P.Ws.6 and 7 also examined about the inquest over the dead body, denied that in their presence the same was conducted and therefore they were also declared as hostile witnesses to the prosecution. P.W.13-S.I. of Police, Alair deposed about registering the case on the basis of report given by P.W.1 (Ex.P1) and conducting a part of investigation of the case. P.W.14- Civil Assistant Surgeon, Department of the Forensic Medicine, Gandhi Medical College, Secunderabad deposed to the effect that on 14.9.2006 in between 1.30 to 2.30 p.m., she conducted post-mortem examination over the dead body on a requisition given by the MRO, Alair and found the following anti-mortem injuries; “Dermo epidermal burns on the whole body except the dorsum of the legs, scalp and parts of perineum, about 95%” and further accordingly she issued Ex.P7-Postmortem report. She also deposed in her cross-examination that if such a patient received 95% of burns normally she would be in unconscious condition and unable to speak. P.W.15-the SDPO, Bhongir deposed about conducting the investigation of the case and filing the charge sheet. 16. Even though P.Ws.1, 2, 3, 5 & 10 deposed to the effect that the deceased informed them when they met her subsequent to the incident that the accused drenched her with kerosene and set her ablaze when the same aspect is not found in the dying declaration of her, their evidence is to be viewed with suspicion or no credence can be given to their evidence in any case. There is no reason to disbelieve the medical evidence with regards to conducting the post-mortem examination over the dead body and finding the injuries on the dead body and the cause of death. When it is the medical evidence that she received about 95% of burns and as such she may not be in conscious state to speak about what exactly happened, it may give some doubt as to whether really the deceased gave dying declaration in question subject to its acceptance. However, it is pertinent to note here that the dying declaration was recorded by a Judicial Officer and there is no basis to come to a conclusion that she recorded a false dying declaration. Further, the medical evidence is not certain in fact with regards to the capacity of the deceased to give her statement. It is quite possible in these circumstances that she failed to record the actual percentage of burns received by the deceased. 17. With regards to the plea that the fact that the investigation of the case already commenced before registering the First Information Report is fact, in fact, Ex.P6 (F.I.R.) provides that the case was registered at 3.30 p.m. on 13.9.2006, whereas it is according to P.W.12 that she received the requisition from the S.H.O. Chilakalaguda Police Station at 8 a.m. on 13.9.2006 to record the dying declaration and by 8.20 a.m. she went to Gandhi General Hospital for that purpose, which amply proves that it was done prior to the registration of the case. It also provides clearly that the S.H.O. Chilakalaguda Police Station also received information about the incident following which only he would have sent the requisition to the learned Magistrate for recording the dying declaration, but such a statement was not filed before the Court, which is to be taken seriously. 18. Section 156 Cr.P.C., which is relevant here provides with regards to the Police Officer’s power to investigate cognizable case: (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned. 19. On the other hand, Section 154 Cr.P.C. is with regards to information to the police and their powers to investigate. This provision really sets into motion the corresponding investigation of any criminal case. But either in Section 154 Cr.P.C. or Section 156 Cr.P.C. there is no specification to the effect that no investigation of a criminal case should be commenced without registering a formal First Information Report. In fact, Section 156 Cr.P.C. confers on the Police unrestricted power to investigate a cognizable offence without the order of a Magistrate or without registering a formal First Information Report. In other words, the Police can commence investigation in a criminal case on their own motion on receiving necessary information about commission of a cognizable offence even without registering the information as contemplated under Section 154 Cr.P.C. However, in order to find out how far the prosecution case is reliable, all those relevant factors are to be taken into consideration ultimately. 20. Therefore, there is no sound basis to convict the accused for the alleged offence and he is to be given benefit of doubt and ultimately he is to be acquitted setting aside the conviction and sentence recorded by the trial Court for the offence punishable under Section 302 IPC. 21. The trial Court failed to appreciate the evidence with regards to the dying declaration of the deceased properly by reason of which the conviction and sentence recorded for the offence punishable under Section 302 IPC are to be set aside. 22. For the foregoing reasons and in the facts and circumstances of the case, the Appeal is allowed setting aside the conviction and sentence imposed in the Sessions Case No.1 of 2007 dated 30.10.2007 on the file of the Court of Principal District and Sessions Judge, Nalgonda and consequently, the appellant-Accused Aleti Bixapathi shall be set at liberty forthwith, if he is not required in any other case. ______________ V.ESWARAIAH, J ________________________ G.KRISHNA MOHAN REDDY, J Date: 10.8.2011 Note: L.R. copy to be marked. B/o DA THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.A.No.1755 of 2007 10.8.2011 [1] (2010) 11 SCC 423 [2] AIR 2003 SC 2859