IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE 30TH DAY OF JUNE, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.220 OF 2007 Between: Visakha Nagaraju … Appellant And State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent This court made the following: - HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.220 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Redddy) The appellant/sole accused filed this criminal appeal questioning the conviction and sentence recorded against him by I Additional District & Sessions Judge, West Godavari Division at Eluru, vide judgment dated 22.06.2006, whereby he was convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for six months, for the offence punishable under Section 302 of the Indian Penal Code, 1960 (for brief, “IPC”). 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- Accused was a resident of Koyyalagudem and working as a sweeper in Leprosy Unit, Ug. Primary Health Centre, Koyyalagudem. Whereas Ayinaparthi Veera Venkata Nagamani @ Nagamani (hereinafter referred to as ‘deceased’), whose house is situated behind R&B Guest House, Koyyalagudem, worked as a staff nurse in the Ug.Primary Health Centre. She married Kolisetti Seetaram Prasad about 17 years back and as there were some disputes between them, she was living separately. Later she developed illicit contact with the accused. Since the accused is alleged to have been harassing her for giving money, she asked the accused not to visit her house. On 10.03.1998 the deceased went to Bhimadole to her sister’s house and returned back at 7.30 p.m. While the deceased was taking bath, she heard sound of the gate and immediately she dressed up and came out. In the meantime, the accused went to her house and called the deceased. The deceased did not attend and asked the accused to go away threatening that she would shout and call the neighbours. In the meanwhile, the accused convinced the deceased that he will take her to outside. When the deceased opened the door, immediately the accused entered into the house and picked up a kerosene tin, which was kept by the side of the pot and poured the kerosene on the deceased and lit a match stick and threw the same on her and set her on fire and escaped. When the flames attacked the deceased, the deceased raised cries and after the accused fled away from the scene, she came out of the house and extinguished the flame by rolling herself in the sand heap. Later the neighbours shifted the injured to the Ug.Primary Health Centre and there she was rendered first aid. On the same day at 10 p.m., on receipt of the intimation from the Primary Health Centre under Ex.P9, P.W.16-the Sub-Inspector of Police, Koyyalagudem Police Station visited the hospital and recorded the statement of the deceased under Ex.P10, returned to the police station and registered a case in crime No.26 of 1998 under Section 307 IPC and issued Ex.P12 F.I.R. Later the deceased was shifted to Government Headquarters Hospital at Eluru for better treatment. On receipt of the requisition from the Government headquarters hospital, Eluru, on 11.03.1998 at 4.00 a.m., P.W.17-II Additional Munsif Magistrate, Eluru went to the hospital and recorded the dying declaration of the deceased under Ex.P18 in the presence of P.W.18, the duty doctor, who certified under Ex.P19 that the patient was conscious and coherent at the beginning, through out and at the end of examination. Later the injured was shifted to Government General Hospital, Guntur for expert treatment. During the course of investigation, P.W.16 visited the scene of offence and recorded the statements of the witnesses, seized M.Os.1 and 5 in the presence of P.W.8. On 18.03.1998 at 8.30 p.m., he arrested the accused at his house and sent him to judicial custody. Again on 22.03.1998, P.W.16 visited the scene of offence and recovered M.Os.2 to 4 under Ex.P7, prepared rough sketch of scene of offence under Ex.P14. While undergoing treatment at Government General Hospital, Guntur, the deceased succumbed to the said burn injuries on 29.03.1998 at 5.45 p.m. On receipt of the death intimation, P.W.16 altered the section of law from Section 307 IPC to Section 302 IPC and issued Ex.P16 altered F.I.R. He visited the Government General Hospital, Guntur on the next day and conducted inquest in the presence of P.Ws. 9, 10 and others and prepared Ex.P8 inquest report and sent the dead body for post mortem examination. On 30.03.1998 P.W.14-Professor, Guntur Medical College conducted autopsy over the dead body of the deceased and opined that the cause of death of the deceased was due to burns and issued Ex.P11-Post Mortem Certificate. After completion of investigation, P.W.13-the Circle Inspector of Police filed the charge sheet. Since the case is exclusively triable by the Court of sessions, the II Additional Judicial Magistrate of First Class, committed the same to the Court of Sessions, West Godavari Division and on such committal, charge under Section 302 IPC has been framed against the accused, and when the same has been read over to him, the accused pleaded not guilty and claimed for trial. 3. The prosecution in order to prove the guilt of the accused, examined P.Ws.1 to 18 and marked Exs.P1 to P19 documents and the case properties-M.Os.1 to 5. No oral or documentary evidence was let in on defence side. 4. After closure of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) on the incriminating evidence produced against him. The accused claimed no defence. 5. As the material witnesses P.Ws.1 to 5 were declared hostile, the learned Sessions Judge relying upon the dying declarations under Exs.P10 and P18 recorded by P.Ws.16 and 17 respectively, and the evidence of an independent witness-P.W.15, before whom the deceased also made oral dying declaration, convicted the accused for the offence under Section 302 IPC and sentenced him to imprisonment as aforementioned. 6. Smt.A.Gayatri Reddy, learned counsel for the appellant/sole accused seriously contends that when all the material witnesses P.Ws.1 to 5 turned hostile and not supported the case of the prosecution and when the oral evidence of P.W.6-brother of the deceased, who stated that on the information received from his wife, he visited the hospital on the next day and on his enquiry the deceased informed him that an altercation took place between herself and the accused and as the deceased refused to give the amount demanded by the accused he poured kerosene and set her on fire, is not supported by the documentary evidence i.e., Dying Declarations under Exs.P10 and P18, it is not safe to convict the accused solely basing upon the two dying declarations. The learned counsel alternatively contends that when the deceased received 60% burn injuries as per the post mortem certificate Ex.P11 and died after 19 days due to burns, had proper care been taken by the hospital authorities, the deceased could have survived. Therefore, the accused cannot be convicted for the offence punishable under Section 302 IPC, in stead he may be convicted for an offence with lesser punishment under Section 304 part II IPC. For the said proposition, she relied upon the Judgments in Ogiboyina Kotaiah v. State of A.P.[1] and Ganga Dass v. State of Haryana [2]. 7. On the other hand, learned Public Prosecutor sustained the conviction and sentence contending that when the deceased received 60% burn injuries and post mortem certificate-Ex.P11 also discloses that she died of burns, it can be inferred that the accused had knowledge about the consequences of pouring kerosene and litting fire and hence, the conviction and sentence recorded by the trial Court, needs no interference. 8. In view of the above rival submissions, the point that arises for consideration is: Whether the prosecution is able to bring home the guilt of the accused for the offence with which he was charged, beyond all reasonable doubt? POINT:- 9. The material witnesses P.W.1 to 5 turned hostile and did not support the case of the prosecution. Now there remains the evidence of the Doctors i.e., P.Ws.11, 14 and 18, the evidence of the independent witness P.W.15 – staff nurse, who deposed about the oral dying declaration and the dying declarations recorded by P.Ws.16 and 17 under Exs.P10 and P18 respectively, basing on which the trial court recorded the conviction against the appellant. 10. It is well settled law that the dying declaration can be the sole basis for conviction once it is found to be true and voluntary and needs no further corroboration. The principle on which the dying declarations are admitted in evidence is indicated in the legal maxim “Nemo moriturus praesumuntur mentiri” which means that a man will not meet his Maker with a lie in his mouth. Truth sits on the lips of dying man as said by Mathew Arnold:- “The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice (See Lyre LCR in R. v. Wood Cock (1789) I-Leach 500).” The Apex Court in Paniben v. State of Gujarat[3] at para 17 observed as under: “17. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This 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. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring-corroboration is merely a rule of prudence.” Holding so, the Apex Court summed up the principles governing the dying declarations, as laid down by it in various decisions, and they are as under: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of U.P. (1976) 2 SCR 764) (AIR 1976 SC 2199). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264 : (AIR 1974 SC 332). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P., AIR 1982 SC 1021). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., 1981 SCC (Crl) 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617). (viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505). (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State, AIR 1988 SC 912). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519).” 11. In the light of the above principles, the acceptability of the alleged dying declarations in the instant case has to be considered. The dying declarations are only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis for conviction, even if there is no corroboration. 12. Keeping in view of the above principles, we have to scrutinize the two dying declarations under Exs.P10 and P18 recorded by P.Ws.16 and 17 respectively, as to whether they inspire the confidence of the Court to convict the accused. 13. P.W.16 the Sub-Inspector of police deposed that on receipt of the hospital intimation from Primary Health Centre, Koyyalagudem under Ex.P9, he immediately visited the hospital and recorded the statement of the deceased under Ex.P10. He further deposed that at the time of recording Ex.P10, P.W.11-the duty doctor was present and he certified under Ex.P10(a) that the declarant/injured was conscious at the time of recording the statement. In the dying declaration under Ex.P10, the deceased stated that she is residing in her own house behind R & B Guest House at Koyyalagudem. She had only one son by name Jagadish, who is aged about 14 years. She developed illicit contact with one Nagaraju since one year, who is working as a Sweeper in Leprocy unit at Koyyalagudem. Since one year the accused used to beat her for giving money and on that she told him not to come to her house. On 08.03.1998 evening accused and Satyanarayana came to her house. Without her knowledge Nagaraju climbed up the building. Satyanarayana called her and asked both of them to live happily and as she refused his suggestion, Nagaraju altercated with her. On 10.03.1998 she went to her sister Syamalamba’s house at Gundu Golanu village and returned at 7.30 p.m. night and opened the key and entered into her house and wore nightdress after taking bath. In the meantime, Nagaraju came and called her but she did not open the door at first and on that he requested her to open the door and then she opened the door. Immediately the accused entered into her house and picked up kerosene tin and poured kerosene on her and lit fire with a matchstick and when the flames engulfed her, she raised cries. Accused fled away and on that she came out of her house with cries and extinguished the flames by rolling herself in the sand heap and neighbours lifted her to the hospital. 14. P.W.17, the II Additional Munsif Magistrate, Eluru deposed that on receipt of the hospital intimation under Ex.P17 from the Government Headquarters Hospital, Eluru, he went to the hospital at 4 a.m. on 11.03.1998 and after putting certain questions to the declarant and having satisfied with her state of mind, that the patient was conscious, coherent and in a fit state of mind to give declaration, recorded her dying declaration under Ex.P18. He further deposed that at the time of recording the dying declaration under Ex.P18, P.W.18- the duty doctor was present and she certified under Ex.P19 that the patient was conscious and coherent to give a statement. In the dying declaration under Ex.P18, the deceased herself stated as her first husband is more addicted of womanizing with other ladies, she has been living separately and was leaned upon with the accused, who is working as a sweeper in the same hospital and since sometime back, she asked her not to come to her house. She further stated that while she was in the hospital on her duty, one woman died after giving birth to a boy and on that she fostered that boy and now he is aged about 14 or 15 years and he is studying in Z.P.School, Bhimadole. On 10.03.1998 she went to the school and saw that boy and returned to her house in the night at 8 p.m. and while she was taking bath in the bathroom, she heard the sound of the gate at the outside and immediately she wore petty coat and gown and at that time, she was living alone in her house and came out of the house and found that the accused came, but she did not open the door of her house. She asked the accused to go away by stating that she will call the neighbouring people by crying and then the accused requested that he will take her outside and on that she opened the door. He entered into the house and picked up the kerosene tin which was placed by the side of cot and poured on her and lit fire with match stick and thrown on her and fled away and then the worn clothes on her body were attacked with flames and on that she raised cries and ran outside of the house and fell on a sand heap and on that the neighbours admitted her in the hospital. 15. The evidence of P.Ws.16 and 17 who recorded the dying declarations under Exs.P10 and P18, clearly discloses that the deceased was conscious at the time of recording the statements. Both the Dying declarations are consistent that the accused poured kerosene and lit fire with the deceased and inspire the confidence of the Court that it is the accused who poured kerosene and lit fire to the deceased. Further, it is the evidence of P.W.15, who was working as a staff nurse in Ug.Primary Health Centre, Koyyalagudem that on coming to know of the deceased sustaining injuries, she went to the hospital and on enquiring with the deceased as to how she sustained those burn injuries, she told her that the accused poured kerosene on her and set fire and went away. 16. P.W.11, the Medical Officer, Primary Health Center, Koyyalagudem deposed that he issued the hospital intimation under Ex.P9 to P.W.16 the Sub inspector of Police. He further deposed that P.W.16 recorded the statement of the deceased under Ex.P10 in his presence and that the patient was conscious at the time of recording the statement under Ex.P10. P.W.18 the Civil Assistant Surgeon, Government Headquarters Hospital, Eluru deposed that she gave the hospital intimation under Ex.P17 to P.W.17 the Magistrate. She further deposed that P.W.17 recorded the statement of the deceased under Ex.P16 in her presence and that after completion of the recording of the dying declaration, she certified that the patient was conscious and coherent at the beginning, through out and at the end of recording of her statement. The evidence of P.Ws. 16 and 17 is corroborated with the evidence of P.Ws.11 and 18, who were present at the time of recording the dying declarations. P.W.14, the Doctor who worked as Professor in the head of the department at Government Medical College, conducted post mortem examination of the deceased and issued Ex.P11 post mortem certificate opining that the cause of death was due to burns. Therefore, the prosecution established beyond reasonable doubt that the deceased died due to burns and the burns were caused by the accused by pouring kerosene and setting fire to the deceased and later she was admitted in the hospital. The prosecution has, therefore, made out a case against the accused beyond reasonable doubt. 17. Learned counsel for the appellant submitted that there was considerable time gap of 19 days between the date of the incident and the death and there was no intention on the part of the accused to kill the deceased. Hence, some lenient view may be given for the reason that when the deceased was not agreeable to live along with the accused, in a hit of anger he set fire by pouring kerosene. Though the post mortem certificate – E.xP11 does not disclose that she has definitely developed septicemia and died of the same and P.W.14-the doctor, who issued the post mortem certificate, stated that the cause of death is due to burn injuries, he has not stated that there is no cause of survival of the patient, who received 60% of burns and the said burns are sufficient in the ordinary course of nature to cause death. 18. Keeping in view of the totality of circumstances and having regard to the fact that the deceased survived for 19 days, we are of the view that clause (3) of Section 300 IPC would be inapplicable and the accused could be said to have knowledge that by committing the said act he was likely to cause the death of the deceased in terms of Clause (3) of Section 299 IPC. Therefore, the conviction under Section 302 was altered into the one under Section 304 part II IPC. 19. The conviction of the appellant/sole accused for the offence punishable under Section 302 IPC and sentence of Rigorous Imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of six months, recorded in Sessions Case No.91 of 2001, dated 22.06.2006 by I Additional District & Sessions Judge, West Godavari District at Eluru is set aside and the appellant/accused is found guilty for the offence punishable under Section 304 Part II IPC. He is accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years. 20. The Criminal Appeal is partly allowed to the extent indicated above. _______________ A.GOPAL REDDY, J ___________ K.C.BHANU, J 30th June 2010 lmv [1] 2007(1) ALT (Crl.) 260 [2] 1994 Cri.L.J.237 [3] AIR 1992 SC 1817