THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1231 of 2007 Date of Judgment: 07-06-2011 Between: Darasam Yesupadam ..Appellant and State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1231 of 2007 Oral Judgment: (Per Honourable Sri Justice RAJA ELANGO) 1. The sole accused in S.C.No.202 of 2004 on the file of Sessions Judge, Mahila Court, Vijayawada filed the present appeal under Section 374 (2) of the Code of Criminal Procedure challenging his conviction for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentence of imprisonment for life and fine of Rs.500/- and in defualt to suffer simple imprisonment for three months. 2. The gravaman of the charge against the accused is that on 08-12-2003 at 7.30 P.M., in the house of Vamula Nancharamma (P.W.2) he committed the murder of one Vallepu Yesuratnam @ Daram Sudha (hereinafter referred to as “the deceased”) by pouring kerosene and setting fire on her with a match stick. 3. The prosecution story, in brief, which led to conviction of the accused, is as follows: The deceased married one Mr.Uppu John about nine years prior to her death. During the wedlock they begot one female child—Vallepu Bhavani. After the birth of child the husband of the deceased deserted her. Subsequently the accused (Daram Yesupadam), who is the resident of Vijayawada, kept the deceased as his concubine and both of them leading their life as wife and husband. After some time, the accused suspecting the fidelity of the deceased subjected her to cruelty by harassing her both mentally and physically and also used to beat her. While so, on the date of incident i.e. on 08-12-2003, at 7.30 P.M. the accused returned to home, abused the deceased in filthy language and questioned her as to where she had gone and started beating her. Apprehending danger in the hands of the accused the deceased ran into the house of P.W.2. But the accused chased her and entered into the house of P.W.2, grew wild, picked up kerosene tin and poured kerosene on the body of the deceased, lit the match stick and set fire to the deceased in the house of P.W.2 with an intention to kill the deceased. As a result the deceased sustained severe burn injuries all over her body. The said incident was witnessed by P.Ws.2 and 3 and neighbours also gathered there. Later the deceased was shifted to the Government General Hospital, Vijayawada. On receipt of intimation about the admission of the deceased, the Sub-Inspector of Police, Patama Police Station, Vijayawada (P.W.16) rushed to the hospital and recorded the statement of the deceased— Ex.P18 on the same day at 22.30 hours. Basing on the said statement he registered a case in Cr.No.632/03 under Section 307 IPC and took up investigation. During the course of investigation, he visited the scene of offence; observed the same in the presence of mediators— P.W.10 and Vavulapati Ramu (L.W.19); seized the kerosene tin (M.O.1), burned sari pieces (M.O.2) from the scene of offence under a cover of observation report—Ex.P10. He also got the scene of offence photographed with the assistance of P.W.9; prepared rough sketch of the scene of offence—Ex.P21. On 09-12-2003, on a requisition received from the hospital—Ex.P15, the III Metropolitan Magistrate, Vijayawada (P.W.15) recorded the dying declaration of the deceased—Ex.P.16. On 10-12-2003, P.W.16 arrested the accused. The Sub-Inspector of Police, Machavaram Police Station (L.W.29) took up further investigation and forwarded the material objects to RFCL, Vijayawada. On 28-12-2003, while undergoing treatment the deceased succumbed to burn injuries. On receipt of death intimation, the Sub-Inspector of Police, Machavaram Police Station altered the section of law from 307 IPC to 302 IPC and issued altered FIR—Ex.P22. Then the Inspector of Police, Vuyyur (L.W.30) took up investigation and held inquest over the dead body of the deceased on 28-12-2003 under a cover of inquest report—Ex.P11 in the presence of P.W.11, Avula Busi Babu (L.W.21) and another. Later, he sent the dead body of the deceased to the post-mortem examination. P.W.14 is the doctor who conducted autopsy over the dead body of the deceased and issued post-mortem report opining that the deceased died due to burns. After completion of investigation, charge sheet was laid before the II Additional Chief Metropolitan Magistrate, Vijayawada. 4. The learned II Additional Chief Metropolitan Magistrate, Vijayawada took cognizance of the case against the accused for the offence under Section 302 IPC and committed the case to the Court of Metropolitan Sessions Division, Vijayawada after following the procedure contemplated under law. The learned Metropolitan Sessions Judge, Vijayawada registered the case and made over the same to the Sessions Judge, Mahila Court, Vijayawada. 5. On committal, the learned Sessions Judge framed one charge for the offence punishable under Section 302 IPC, which was read over and explained to the accused in Telugu for which he pleaded not guilty and claimed to be tried. 6. In support of its case, the prosecution examined P.Ws.1 to 18 and got marked Exs.P1 to P27 besides case properties—M.Os.1 to 5. On behalf of the defence, D.W.1 was examined but no exhibits were marked. 7. P.Ws.1 to 8 turned hostile and did not support the case of the prosecution. P.W.9 the private photographer deposed that on the request of the police he had taken photographs of the scene of offence on the date of occurrence i.e. on 08-12-2003. P.W.10 is the mediator for observation of the scene of offence. P.W.11 is the inquest panchayatdar for the inquest held over the dead body of the deceased. He opined that the deceased died due to burns. P.W.14 is the doctor who conducted post-mortem examination. According to him, the cause of death was due to burn injuries. P.W.15 is the III Metropolitan Magistrate, Vijayawada, who recorded the dying declaration of the deceased covered under Ex.P16. P.W.16 is the Sub-Inspector of Police, Patama P.S. who recorded the statement of the deceased covered under Ex.P18. P.W.18 is the doctor who present at the time of recording Ex.P18 statement. 8. The learned Sessions Judge eschewed the evidence of witnesses—P.Ws.1 to 8, who turned hostile, but mainly relied on the evidence of the Magistrate—P.W.15, who recorded the dying declaration of the deceased; and the Investigating Officer—P.W.16, who recorded the statement of the deceased. Considering the said statements marked as Exs.P16 and Ex.P18 convicted the accused, as stated above. 9. The only point that arises for consideration in this appeal is: “Whether the conviction is sustainable on the basis of dying declaration “ 10. In the present case, there are two dying declarations: one is recorded by the Magistrate (PW15) and another recorded by the investigating officer (PW16). The learned Magistrate after following the formalities and ascertaining the physical condition of the deceased to give declaration recorded the statement of the deceased—Ex.P16 in which the deceased stated as follows: “Today night at 7.30 P.M. my husband Yesupadam picked up a quarrel with me at my house. I was beaten with hands. He by saying that he would pour kerosene, he poured kerosene and lit the match stick. Then I do not know what he did. The flames were raised and I fell down. I do not know who brought me. He poured kerosene by suspecting my fidelity.” Ex.P18 is the statement recorded by the Investigating Officer (P.W.16) on the same day within 1½ hours. 11. Learned counsel for the appellant contends that there are some discrepancies in the said two dying declarations and therefore, the same cannot form basis for conviction. To buttress the contention he relied on the following judgments. 1. P.MANI V. STATE OF TAMIL NADU[1] 2. SHAIK MAZBOOL v. STATE OF A.P.[2] 3. SUKUMAL GHOSE v. STATE OF ASSAM[3] 12. On the other hand, learned public prosecutor while sustaining the order under appeal contended that Ex.P16—dying declaration of the deceased is corroborated with the statement of the deceased recorded by the Investigating Officer and Ex.P16 was true and voluntary; therefore, the same can be based for conviction of the accused for the offence under Section 302 IPC without any further corroboration. In support of the same, strong reliance is placed on the decision of the Supreme Court in RAVIKUMAR @ KUTTI RAVI v. STATE OF TAMIL NADU[4]. 13. Perused the dying declaration recorded by the Magistrate and the statement of the deceased made before the Investigating Officer. On perusal of the same, this Court is of the view that there is no material contradiction in the dying declaration recorded by the Magistrate and the statement recorded by the Investigating Officer, as pleaded by the appellant. The dying declaration recorded by the Magistrate and the statement recorded by the Investigating Officer are consistent with regard to material aspect i.e. cause of injury, the manner in which the injury caused and the person who caused the injury. As there is no discrepancy with regard to material aspect, the dying declaration can be relied upon to base a conviction. 14. The learned Sessions Judge after taking into consideration the various decisions relied upon by the accused as well as the prosecution and the material available on record convicted the accused for the offence, referred to above. 15. In the case of P.MANI (1 supra) the Supreme Court held conviction can be recorded on the basis of dying declaration alone but the same must be wholly reliable where suspicion can be raised as regards its correctness, court would look for some corroborative evidence. 16. In SHAIK MAZBOOL’s case (2 supra) a Division Bench of this court held no conviction to be based on uncorroborated evidence on material particulars. 17. In SUKUMAL GHOSE v. STATE OF ASSAM (3 supra) a Division Bench of the Assam High Court held dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness and to see that statement of deceased was not as a result of either tutoring or prompting on a product of imagination and court must also decide whether deceased was in fit state of mind to make dying declaration. 18. In RAVIKUMAR @ KUTTI RAVI (4 supra) the Apex Court held once the court is satisfied that declaration was true and voluntary, it undoubtedly, can base conviction on dying declaration without any further corroboration. 19. In the case on hand, even though some of the witnesses declared hostile, the evidence of P.Ws.1 and 2 clearly indicates the presence of the accused at the time of occurrence. P.W.1 in her chief examination stated as follows: “I found the deceased coming out of our house in flames. At that time the accused came there and took the deceased to Government Hospital, Vijayawada.” P.W.2 in her chief examination stated as follows: “I saw the deceased coming out in flames. The accused had taken the deceased to the hospital.” 20. Apart from the dying declaration and the statement of the deceased, the evidence of P.Ws.1 and 2 clearly establishes the presence of the accused at the place of occurrence. 21. In these circumstances, this Court is of the considered view that the accused can safely be convicted on the basis of dying declaration recorded by the Magistrate and also the statement recorded by the Investigating Officer. The judgment of the trial court does not suffer from any infirmities warranting interference. In view of the same, the appeal is liable to be dismissed. 22. In the result, Criminal Appeal is dismissed confirming the conviction order of the Sessions Judge. _______________ A.GOPAL REDDY, J. ______________ RAJA ELANGO,J. 07-06-2011 Murthy [1] 2006 (2) Crimes 9 (SC) [2] 2006 (2) ALT (Crl.) 466 (DB) [3] 2006 (2) Crimes 164 [4] 2006 (1) ALD (Crl.) 633 (SC) = 2006 (1) Crimes 233 (SC)