HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.332 OF 2007 Dated:13-07-2010 BETWEEN: Nukala Siddaiah & Another …Appellants AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.332 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu) A.1 and A.2 in S.C.No.283 of 2005 on the file of Court of Sessions, Prakasam Division, Ongole filed the present appeal challenging the conviction of A.1 for the offence under Section 302 of Indian Penal Code, 1860 (for short ‘I.P.C.’) and sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a period of one month; and the conviction of A.2 for the offence under Section 302 r/w Section 34 I.P.C. and sentencing her to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to undergo simple imprisonment for a period of ten days. 2. The case of the prosecution is that A.1 is the son of A.2. Marriage of A.1 and one Nukala Khadaramma (hereinafter referred to as ‘the deceased’) was performed on 21.5.2003. Both the families belonged to same village of Kommalapadu and their houses are situated in the neighbourhood. At the time of marriage, the deceased was given 2 ½ soverigns of gold and one acre of land as dowry. A.1 was working as lorry driver and deceased was attending cooli work. The marriage was not a happy marriage. From the beginning, A.1 was suspecting the character of deceased and started ill- treating her. A.2 was supporting her son (A1). Deceased was beaten and was sent to her parents’ house some time prior to 28.12.2004. At the intervention of elders deceased was brought back to the house of accused on 28.12.2004. On 30.12.2004 at about 8.00 a.m. A.1 poured kerosene on the deceased and set fire her, while A.2 was guarding the house. On hearing the cries, neighbours i.e. P.Ws.2, 5 to 15 gathered and extinguished the fire. Parents of the deceased-P.Ws.1 and 4 on coming to know about the incident also reached the scene of offence immediately and shifted the deceased to the hospital at Narasaraopet, where P.W.25 has been running a hospital. On examining the deceased, he found that she was suffering from grievous injuries and advised them to take her to Government General Hospital, Guntur. The deceased was taken to government hospital by 3.00 p.m., where P.W.26, Civil Assistant Surgeon, Government General Hospital, examined her and found both superficial and deep burns all over the body except on feet. After preliminary treatment, intimation was sent to Magistrate to record the statement of deceased and police intimation was also sent. P.W.27-the then Special Mobile Magistrate-cum-Judicial First Class Magistrate, Guntur received the requisition under Ex.P.33 on 30.12.2004 at 4.00 p.m. He reached the hospital at 4.15 p.m. and recorded the statement of the deceased in the presence of duty doctor P.W.26. Ex.P.32 is endorsement of doctor and Ex.P.34 is the dying declaration. P.W.21, the then A.S.I. of Kothapet Police Station received the hospital intimation about admission of deceased under Ex.P.21 on 30.12.2004 at 8.00 p.m. On 31.12.2004 at 10.00 a.m. he went to the hospital and recorded the statement of deceased in the presence of P.W.6. Ex.P.22 is the statement recorded by him. He forwarded the papers to Santhamaguluru Police Station on the point of jurisdiction. P.W.23, Sub- Inspector, Santhamaguluru Police Station received Ex.P.21 and 22 and registered a case in Crime No.1 of 2005 for the offences under Sections 498-A, 307 r/w 34 I.P.C. Ex.P.25 is the F.I.R. He visited the Government General Hospital, Guntur and recorded the statement of deceased under Ex.P.24 and took up investigation. He examined P.Ws.1,4 and 6 on the same day, visited the village on 2.1.2005, examined P.Ws.5,20 and others. Thereafter he visited the scene of occurrence along with P.Ws.5 and 20. He prepared rough sketch of scene of offence under Ex.P.26, prepared observation report under Ex.P.20 in the presence of P.Ws.5,20 and others. He seized M.O.1 empty kerosene stove, M.O.2 partly burnt petty coat, M.O.3 partly burnt empty matchbox, M.O.4 partly burnt blouse, M.O.5 yellow colour plastic tin and M.O.6 burned petty coat pieces. P.W.23 also examined P.Ws.2,8,9 to 13, 15, 19 and others and recorded their statements. On 11.1.2005 deceased succumbed to the injuries in the hospital. On receipt of death intimation under Ex.P.27 on 11.1.2005, P.W.23 altered the section of law from 307 to 302 r/w 34 I.P.C. and issued Ex.P.28-express F.I.R. to all concerned. P.W.24, the then Inspector of Police, Addanki took up investigation on 11.1.2005, examined and recorded the statements of P.Ws.1,2,3,6,14 and others. He conducted inquest over the dead body of the deceased at Government General Hospital, Guntur on 11.1.2005 from 2.00 p.m. to 4.00 p.m. in the presence of P.W.18 and others. Ex.P.18 is the inquest report. Post-mortem was conducted by P.W.22, Professor of Forensic Medicine, Government General Hospital, Guntur. As per the doctor, the deceased sustained 90 to 95% of ante-mortem burn injuries and she died of complications of the burn injuries. Ex.P.23 is the post-mortem certificate. Accused were arrested on 4.2.2005. After completion of investigation, P.W.24 filed the charge sheet on 5.5.2005. 3. The charges levelled against the appellants-accused are as under: “FIRSTLY: That A.1 of you prior to the 30th day of December, 2004 at Kommalapadu Village of Santhamaguluru Mandal, being the husband of Nukala Khadaramma, aged 18 years (the deceased), subjected her to cruelty, to wit, suspecting her fidelity, used to beat her indiscriminately with the support of your mother (A.2) and harassed your wife both mentally and physically suspecting that there was illicit intimacy between your wife and one Gokalakonda, tractor driver, and that you thereby committed an offence punishable under Section 498-A of Indian Penal Code and within my cognizance. SECONDLY: That A.2 of you on or about the same day, same time, same place and during the course of same transaction as mentioned in charge No.1 supra, being the mother-in-law of Nukala Khadaramma, aged 18 years (the deceased), in furtherance of common intention shared with your son A.1 while he was subjecting his wife Nukala Khadaramma (the deceased) to cruelty, to wit, instigated your son A.1 to beat his wife Nukala Khadaramma (the deceased) indiscriminately and harassed her both mentally and physically suspecting that there was illicit intimacy between Nukala Khadaramma (the deceased) and one Gokalakonda, tractor driver, and that you thereby committed an offence punishable under Section 498-A read with Section 34 of the Indian Penal Code and within my cognizance. THIRDLY: That A.1 of you on or about the 30th day of December, 2004 at about 08.00 hours at your house in Kommalapadu Village of Santhamaguluru Mandal, did commit the murder by intentionally or knowingly causing the death of your wife Nukala Khadaramma, aged 18 years (the deceased), to wit, poured kerosene on the person of your wife Nukala Khadaramma, aged 18 years (the deceased) and set fire, and while undergoing treatment for the burn injuries she died on 11.1.2005 at 05.00 hours in the Government General Hospital, Guntur, and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. LASTLY: That A.2 of you on or about the same day, same time, same place and during the course of same transaction as mentioned in charge No.3 supra, in furtherance of common intention, shared with A.1 while he was committing murder of his wife Nukala Khadaramma, aged 18 years (the deceased) by pouring kerosene on her and setting fire, to wit, you were guarding outside the house, and while undergoing treatment for the burn injuries she died on 11.1.2005 at 05.00 hours in the Government General Hospital, Guntur, and that you thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within my cognizance.” 4. When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 27 and got marked Exs.P.1 to P.34 besides the case properties-M.Os.1 to 6. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to adduce evidence, they did not let in any evidence. 7. The Trial Court after considering the two dying declarations said to have been recorded by the Assistant Sub-Inspector of Police and the concerned Judicial First Class Magistrate found both the accused guilty and accordingly convicted and sentenced them as stated above. Challenging the same, the present appeal is filed. 8. The point for determination is ‘whether the prosecution proved its case beyond all reasonable doubt for the charge under Section 302 I.P.C. against A.1 and 302 read with Section 34 I.P.C. against A.2?’ 9. Learned counsel appearing for the appellants contended that the two dying declarations i.e. Exs.P.22 and P.34 are inconsistent with regard to the manner of attack and in view of the inconsistency between the said two dying declarations, it is not safe to give much credence to both the dying declarations, and that as seen from the evidence, it is clear that both the dying declarations were given by the deceased as tutored by her parents, that all the prosecution witnesses including father, mother and brother of the deceased did not support the case of the prosecution, that the two dying declarations are not true and voluntary statements of the deceased and that therefore, she prays to set aside the convictions and sentences recorded against the appellants. 10. On the other hand, the learned counsel representing the Public Prosecutor contended that Ex.P.22 and P.34 are the statements of the deceased recorded by Assistant Sub-Inspector of Police and the Judicial First Class Magistrate respectively and these two dying declarations clearly go to show that it is A.1 who poured kerosene on the body of the deceased and set fire to her, that there is no inconsistency with regard to the actual assailant of the deceased, that there is no inconsistency in the two dying declarations with regard to the role played by A.2 and that if the dying declarations are true and correct, they can be acted upon, and the trial Court, upon considering the material on record, rightly convicted and sentenced the accused and there are no grounds to interfere with the convictions and sentences recorded by the lower Court. 11. All the witnesses, including father, mother and brother of the deceased, turned hostile and they did not support the case of the prosecution. They have given a complete go-by to their earlier version recorded by the police when they were examined under Section 161 (3) Cr.P.C. Therefore, the prosecution rightly sought permission for cross- examining them. Even after the cross-examination, nothing has been elicited so as to convict the accused with the offence with which they were charged. The entire case of the prosecution rests upon the two dying declarations, one recorded by P.W.27-Magistrate on 30.12.2004 at 4.15 p.m. which was marked as Ex.P.34 and the other marked as Ex.P.22 recorded by P.W.21-Assistant Sub-Inspector of Police on 31.12.2004 at 10.00 a.m., at Government General Hospital, Guntur. 12. A statement, verbal or written, given by a person as to cause of his death or any of the circumstances of the transaction leading to his death, is admissible in evidence under Section 32(1) of the Indian Evidence Act, 1872 when the cause of the death of such person comes into question. The law is well settled that if the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives, then it can be acted upon and conviction can be maintained even without corroboration. On this aspect, it is pertinent to mention about the decision reported in Khushal Rao v. State of Bombay(AIR 1958 SC 22), wherein the Apex Court at para 17 observed as under: “17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.” Keeping the above principles in mind, it is to be seen whether the two dying declarations inspire confidence so as to base conviction. 13. P.W.24 is the Inspector of Police, who held inquest on the dead body of the deceased under Ex.P.18 on 11.1.2005 in the presence of P.W.18 and others. P.W.18 has categorically stated that he was present at the time of inquest and the inquest mediators opined that the deceased died due to burn injuries. The accused did not cross-examine P.W.18. Therefore, from the evidence of P.W.24 coupled with the evidence of P.W.18 and the recitals in Ex.P.18, it is clear that the deceased died as a result of burn injuries. 14. P.W.22 is the doctor who conducted autopsy on the dead body of the deceased and found Derma epidermal burns present all over the body, except soles of feet, perineal region, part of upper ½ of face. Singening of scalp hair was present, and unhealthy granulation tissue was present over burnt area. According to him, the percentage of burns received by the deceased is 90 to 95%, and that the burn injuries are ante-mortem in nature. He opined that the cause of death of the deceased was due to complications of burns. He issued Ex.P.23 post-mortem certificate. The cause of death as spoken to by the doctor is not specifically denied or disputed. Therefore, the prosecution established its case with regard to the homicidal death of the deceased. 15. The incident is alleged to have taken place on 30.12.2004 at about 8.00 a.m. at the house of the accused located in Kommalapadu Village of Santhamaguluru Mandal. P.W.27 is the concerned Judicial First Class Magistrate who received requisition under Ex.P.33 from the Government General Hospital, Guntur at about 4.00 p.m. on 30.12.2004. Immediately, he proceeded to the hospital and after putting some preliminary questions to know the fit state of mind of the deceased and after satisfying with the consciousness, coherence and fit state of mind of the deceased to give statement, he recorded the statement as in Ex.P.34. The duty doctor- P.W.26 was also present at the time of recording the statement, who made an endorsement to the effect that the patient was conscious and coherent. The accused have also not denied about the consciousness, coherence and fit state of mind of the deceased to give the statement. After recording the statement, P.W.27 read over the same and she admitted the same to be true and correct. Thereafter, he obtained the thumb impression of the deceased on the statement. Ex.P.34 reads as follows: “Today morning at 8.00 A.M. my husband raised quarrel with me stating that I am doing unacceptable activities and poured kerosene and lit fire. It is happened in our house. Then my aunt and my husband are there. I came out by opening doors due to unbearable flames by crying. Neighbours of our house came and put off flames. My parents are residing intervening three houses to our house. They also came by knowing it. Neighbours of our house took me to the hospital of our village. Then my parents came to the hospital. It is the thing happened. Nothing more to say.” So, as seen from the above statement, it is clear that it is A.1 who poured kerosene on the body of the deceased and set fire to her. Except the presence of A.2, no specific overt acts are attributed with regard to sharing of her mind with A.1 in furtherance of their common intention. The neighbourers took the deceased to the hospital in the village and thereafter she was shifted to the Government General Hospital, Guntur. The evidence of P.W.27 and the recitals in Ex.P.34 remained unchallenged. It is also not the case of the accused that the close relatives of the deceased tutored the deceased to give a false statement against both the accused. Therefore, as seen from the evidence of P.W.27 and recitals in Ex.P.34, it can be said that the statement of the deceased is not an outcome of tutoring or prompting by any one of the relatives or by the interested persons. 16. The other statement of the deceased under Ex.P.22 recorded by P.W.21 reads as under: “I belong to Kommalapadu Village of Santhamaguluru Mandal, Prakasam District. My marriage was performed with Nukala Siddaiah, S/o.Venkateswarlu, 24 years of Kommalapadu village one year back. My husband is working as a lorry driver. Since some months my husband took my gold ornaments and beating and harassing me. My husband developed suspicion against me and harassing both mentally and physically and beating me. My aunt Nukala Atchamma also supporting my husband and both are harassing me. Yesterday i.e. on 30.12.2004 morning at about 8.00 A.M. my husband poured kerosene on me and lit fire in our house. My aunt bolted the doors for not allowing to anybody. My husband burnt me with a suspicion on me. When I cried, the neighbours came there. It is also went to the notice of my father and came there and took me to Government General Hospital, Guntur and got admitted. I have stated the above facts. Read over to me and admitted to be correct.” As seen from the above statement, it is clear that it is A.1, who is husband of the deceased, poured kerosene and set fire to her and that her aunt-A.2 bolted the doors for not allowing anybody. Then she raised cries and neighbourers came there. With regard to A.2 bolting the doors for not allowing anybody to enter into the house, has not been stated in Ex.P.34. The said statement was recorded at 10.00 a.m. on 31.4.2004. Whereas the statement under Ex.P.34 was recorded on the previous day at about 4.15 p.m. Therefore, these two dying declarations are not consistent with regard to the role and the participation of A.2 in the commission of offence. In the first dying declaration-Ex.P.34 except the presence of A.2 no specific overt act is attributed and in the second dying declaration-Ex.P.22 it is stated that A.2 bolted the doors. 17. If an act is done by any person in furtherance of common object of all, all the persons are liable under Section 34 I.P.C. The common intention shared by the accused is locked up in the mind of the accused persons. Therefore, it is difficult for the prosecution to prove the same. But the common intention can be inferred from the circumstances of the case. There are no circumstances to indicate that A.2 shared the common intention with A.1 so as to eliminate the deceased. If really, she had shared the intention, she would have assisted A.1 in pouring kerosene or setting fire to the deceased. Except the presence of A.2 nothing has been stated by the deceased in the earliest opportunity to P.W.27. If really, the overt act as mentioned in Ex.P.22 viz., A.2 bolted the doors for not allowing anybody, is correct, the neighbourers would have broke open the doors of the house of the accused and later they would have taken the deceased to the local hospital in the village. It is not the case of prosecution, the neighbourers broke open the doors forcibly. Therefore, that appears to be an improvement made by the deceased and no importance can be given to that part of the statement with regard to A.2 bolting the doors for not allowing anybody. But so far as the assailant of the deceased is concerned, in both the dying declarations it is consistent that it is A.1 who poured kerosene and set fire to the deceased. In view of the fact that the statements under Exs.P.22 and P.34 are consistent and not an outcome of tutoring or prompting by any person, the trial Court has placed an implicit reliance on both the dying declarations in convicting A.1 for the offence punishable under Section 302 I.P.C. But the trial Court has committed mistake in convicting A.2 for the offence punishable under Section 302 read with Section 34 I.P.C. in view of the fact that there are no circumstances to indicate that A.2 shared the common intention with A.1. Therefore, upon considering the evidence of P.W.27 and the recitals in Ex.P.34 and the evidence of P.W.21 and the recitals in Ex.P.22, we have no hesitation in holding that the dying declarations are true and correct and they can be acted upon. Therefore, the conviction and sentence of A.1 as recorded by the trial Court are liable to be confirmed, and whereas the conviction and sentence recorded against A.2 are liable to be set aside. 18. In the result, the Criminal Appeal is allowed in part. The conviction and sentence recorded against appellant No.1-A.1 for the offence punishable under Section 302 I.P.C. by the Court of Sessions, Prakasam Division, Ongole in S.C.No.283 of 2005 in judgment dated 29.12.2006 are confirmed. The conviction and sentence recorded against appellant No.2- A.2 for the offence punishable under Section 302 r/w Section 34 I.P.C. are set aside and A.2 is acquitted of the said charge and she shall be set at liberty forthwith, if is not required in any other crime and that the fine amount, if any, paid by her shall be refunded to her. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J JULY 13, 2010 Tsr.