THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1401 of 2007 Date of judgment: -07-2011 Between: Uppari Eranna (A1) and another ..Appellants and The State of A.P. rep.by its P.P. 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.1401 of 2007 Judgment: (Per Honourable Sri Justice A.Gopal Reddy) 1. The appellants/A1 and A2 were tried and convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.3,000/- each, in default to undergo simple imprisonment for a period of one year. A1 was further convicted for the offence under Section 498A IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three months. Both the sentences handed over to A1 are directed to run concurrently by a judgment dated 12-07-2007 in S.C.No.304 of 2006 by the II Additional Sessions Judge, Kurnool at Adoni. Aggrieved thereby A1 and A2 preferred the present appeal. 2. The gravaman of the charge against the accused is that they subjected Ramalakshmamma (hereinafter referred to as “the deceased”) to cruelty by harassing her both physically and mentally thereby committed an offence punishable under Section 498 A IPC; that on 24-10-2005 at 7.30 A.M. they caused the death of the deceased by pouring kerosene on her body and setting fire and thereby committed an offence punishable under Section 302 IPC. 3. The prosecution story as unfolded during the course of trial may, briefly, be stated as under: A1 is the husband and A2 is the mother-in-law of the deceased. P.Ws.1 and 2 are the parents of the deceased. All of them are residents of Ganesh Colony, Yemmiganur Town. The marriage between the deceased and A1 took place 10 years back and during their wedlock, they blessed with two sons and lived some time happily. Three years prior to the incident A1 developed illicit intimacy with one Beerakka; when the deceased questioned about the same, A1 used to harass her. Being unable to bear the torture in the hands of A1, the deceased went to her parents’ house and staying there. While so, on the assurance and request of A1, P.W.1—father of the deceased sent her to marital home. For about two months she was looked well and thereafter the accused (A1) started continuing his illicit intimacy with Beerakka. When the deceased questioned the same, A1 grew angry, chastised and beat her. On 24-10-2005 at about 7.30 A.M., the deceased after cleaning the house with the help of sweeper kept the vessel on the heath to prepare food and asked A2—mother-in-law to take bath. Then, A2 created ghalata questioning the authority of the deceased asking her to take bath. When the deceased questioned the behaviour of A2 in humiliating her by referring her illness, A1 grew wild about the loud voice and pushed the deceased. A2 apart from instigating A1, sprinkled kerosene on the body of the deceased and when the deceased tried to come out of the house, A1 set fire on the deceased with a burning stick. When flames engulfed, A1 pushed the deceased inside the house; then the deceased fallen down and raised cries. On hearing the cries, neighbours gathered and saw the accused coming out from the house; they went inside the house and put off the flames. P.W.1— Uppara Naganna, father of the deceased, on receiving the information, came to the house of the accused and found the deceased with burn injuries; immediately they joined the deceased in Government Hospital, Yemmiganur. On receipt of MLC intimation under Ex.P5, P.W.10—Sub-Inspector of Police, Yemmiganur rushed to the hospital, recorded the statement of P.W.1 and basing on the same, he registered a case in Cr.No.137/2005 under Section 498A, 306 r/w 511 IPC, issued Ex.P11—FIR and despatched to all concerned. He recorded the statements of P.Ws.1 to 3; visited the scene of offence; prepared scene of observation report—Ex.P3; drew the rough sketch— Ex.P12 and seized burnt saree bits, bangle pieces, burnt cartoon, match box and kerosene tin in the presence of P.W.5 and another. On 25-10-2005, P.W.10, on receipt of medical intimation from P.W.8, sent a requisition— Ex.P7 to the Magistrate for recording dying declaration; rushed to the hospital and recorded the statement of the deceased covered under Ex.P13. Basing on the said statement he altered the section of law to 498A and 307 IPC. P.W.7, Junior Civil Judge, Yemmiganur visited the hospital and recorded the dying declaration of the deceased covered under Ex.P8. On 26-10-2005, P.W.10 arrested the accused and sent them for remand. On 27-10-2005, he recorded the statement of P.W.4. On 16-11- 2005 at about 11 P.M. the deceased succumbed to burn injuries. On receipt of death intimation the section of law was altered from 498A and 302 IPC and fresh FIR—Ex.P15 was issued and handed over further investigation to P.W.11, Circle Inspector of Police. P.W.11, who took up the further investigation, held inquest over the dead body of the deceased in the presence of mediators—P.W.5 and another covered under Ex.P4; examined P.Ws.1 to 5 and recorded their statements; sent a requisition to the doctor for conducting post mortem examination. Dr.Mahaboob Subhan—P.W.9 conducted autopsy over the dead body of the deceased on 17-11-2005 and issued Ex.P10— postmortem report opining that cause of death was due to shock and septicemia due to extensive burns. After completion of investigation and after receipt of relevant documents, P.W.9 laid the charge sheet before the Judicial Magistrate of I Class, Yemmiganur. 4. The learned Magistrate took the charge sheet on file as P.R.C.No.19/2006 and after following the procedure under law committed the case to Court of Sessions. The Principal District and Sessions Judge, Kurnool has taken the charge sheet on file as S.C.No.304/2006 and made over the same to II Additional Sessions Judge, Kurnool at Adone for disposal in accordance with law. On appearance of the accused, the learned Sessions Judge on due consideration of material on record and after hearing the learned Additional Public Prosecutor and also the learned counsel for the accused framed two charges under Sections 498A and 302 IPC against A1 and A2, to which both of them pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P16 besides case properties— M.Os.1 to 5. On behalf of the defence, the son of the deceased was examined as D.W.1 and portion of 161 Cr.P.C. statements of P.Ws.1 to 3 were marked as Exs.D1 to D3. 6. Mr.G.Vijaya Saradhi, learned counsel for the appellants—A1 and A2 contended that except P.Ws.3 and 4 the other neighbours, who were present at the time of incident, were not examined. The first version of P.W.1 —Uppara Naganna under Ex.P1—complaint/report is that the deceased disappointing with the behaviour of A1 and lost hope, got herself immolated. Even in Exs.D1 to D3, portion of statement recorded under 161 Cr.P.C. P.Ws.1 to 3 stated that the deceased committed suicide. Whereas when P.W.1 examined in the Court though initially he stated that the deceased herself poured kerosene and lit fire, but later on stated that the deceased after regaining conscious informed that A2 poured kerosene and A1 lit fire while retracting from the statement earlier made under Section 161 Cr.P.C. The statement recorded by P.W.10—Investigating Officer at 11.30 covered under Ex.P13 and the dying declaration recorded by the Magistrate between 1.45 and 2.30 P.M. covered under Ex.P8 are the result of tutoring. In the observation report—Ex.P3, no burnt stick has been found. In view of the same, unless the dying declaration is corroborated with the other evidence it is unsafe to convict the accused. To buttress his submission, the learned counsel relied on the following judgments. 1. ALLAPATI SIVAIAH v. SUB-DIVISIONAL OFFICER, GUNTUR, A.P.[1] 2. J RAMULU v. STATE OF ANDHRA PRADESH[2] 3. SHAIKH BAKSHU v. STATE OF MAHARASHTRA[3] 7. Per contra, learned Public Prosecutor supported the conviction and sentence recorded by the learned Sessions Judge in all respects stating that after admitting in hospital and on seeing her parents the patient (deceased) gain courage to speak. Therefore, the dying declaration does not require any corroboration, which itself is sufficient to convict the accused. 8. In the light of the submissions, the points that fall for consideration in this appeal are: 1. Whether the dying declaration recorded by the Magistrate requires corroboration to convict the accused? and 2. Whether the conviction and sentence recorded by the learned Sessions Judge is liable to be interfered or modified? 9. Uppara Naganna—P.W.1, Eramma—P.W.2 (father and mother of the deceased) were informed by D.W.1—son of the deceased about the quarrel between the deceased, A1 & A2. On such information P.Ws.1 and 2 visited the house of the accused; saw the deceased lying with burn injuries without clothes and not in a position to speak. They shifted the deceased to the Government Hospital, Yemmiganur where the statement of P.W.1 was recorded by P.W.10, as the deceased was in unconscious mind. 10. Under Ex.P1—report, P.W.1 has stated when he went to public tap, which is near to his house, to get water at 7.30 A.M., his grand son— D.W.1 came and stated that deceased, A1 and A2 are quarrelling. He went to the house of the accused along with his grand son (D.W.1); by that time, his deceased daughter poured kerosene on her body and put to fire; surrounding neighbours put off flames. On enquiry with the neighbours it is revealed when the deceased questioned about the extra marital relationship of A1 with Beerakka, both the accused insisted her to die, then only they will be happy. Then the deceased disappointed and lost the hope, set back to the house and got self-immolated. The deceased was harassed both mentally and physically. He also stated the said fact initially, but further stated on the next day of admission of his daughter in the hospital, she gained conscious and was in a position to speak; in the presence of the doctor the Magistrate recorded her statement; after Magistrate left, the police also examined his daughter and recorded her statement. When himself and his wife spoke to the deceased, she told to them: on the date of incident, he heated the water in the morning and asked A2—mother-in-law to take bath; over which she (A2) grew wild, A1 also quarreled; then A2 poured kerosene and A1 lit fire with the aid of burning stick. The distance between the house of the accused and P.Ws.1 and 2 is 300 yards. He also stated by the time they visited the house, A1 and A2 were not present. 11. P.W.2 also stated in similar lines to that of P.W.1. 12. P.W.3 is a neighbour who stated that on the date of incident while he was in the house at 7.30 A.M. he heard cries from the house of the accused; immediately he rushed to the house along with Srinivasulu— L.W.4, Nagappa—L.W.8 and P.W.4; there they saw the deceased lying on the floor and splashed water on her body; at that time P.Ws.1 and 2 reached the place and the deceased was not in a position to speak. Both the accused were not found in the home at that time. Later, he learnt that A2 poured kerosene and A1 lit fire to the deceased. He stated in the cross- examination that a Panchayat was held over the issue of A1 having illicit intimacy with Beerakka, where himself, P.W.4, Nagappa—L.W.8, Srinivasulu—L.W.4 and others participated. P.Ws.1 and 2 came to the house of the accused after he went into the house. 13. P.W.4 who projected as eye witness stated that he has not observed and heard the accused quarrelling with the deceased on the date of incident. Later he declared hostile and did not support the case of the prosecution. 14. P.W.5 is the eye witness to the seizure panchanama under Ex.P3 and also witness to the inquest report. He stated in the cross-examination that police seized the articles in a small room in the house of the accused; kerosene tin was empty when seized and without lid. Both the accused were not present when the scene of offence was observed. 15. P.W.6, Civil Assistant Surgeon, Community Health Centre, Yemmiganur stated that he was present when the deceased was admitted in the hospital. He sent MLC—Ex.P5 to the local police. At that time, Dr.Mahaboob Subhan—P.W.9 and Dr. M.Rajappa—P.W.8 were also on duty. He left the hospital at 9 A.M. as his duty ended. He stated in the cross-examination that patient admitted in the hospital was not in a position to speak, she gain conscious after giving treatment and she died while she was not in conscious. To a question put by the court, the witness answered patient was in semi conscious state once in a while she was able to speak. 16. The Magistrate who recorded the dying declaration was examined as P.W.7. He stated that on receipt of requisition—Ex.P7 from the hospital at 1.45 P.M., he proceeded to Community Health Centre, Yemmiganur and found the deceased in female ward and identified with the help of duty doctor, where the duty doctor certified the mental condition of the patient for the purpose of ascertaining her fitness to record the dying declaration. In order to satisfy himself about mental fitness of the patient, he put some preliminary questions. When she answered properly, he disclosed his identity to her and put further questions to know the cause of injuries. She narrated what all happened, which was recorded in verbatim under Ex.P8. After reading out the statement, she put her thumb impression on it. The duty doctor certified the condition of the patient. He admitted that when he went to the hospital, some persons were present around the patient, but he cannot tell whether they are relatives or not. While recording the statement he has not sent them away. As the patient is not in a position to sign, he has taken her RTI. 17. P.W.8, Civil Assistant Surgeon, Community Health Centre, Yemmiganur stated that on 25-10-2005, while he was on rounds in the wards, he heard voice, so he turned his head and seen deceased talking to P.W.2. He reached the female ward and put a question to the deceased what happened? She said “I am hungry and can I eat anything. Then he advised the attendants to give liquid diet, which can easily digest. Thereafter, he sent a requisition to the Magistrate through Yemmiganur Town Police Station for recording the dying declaration of the deceased. On coming to know that the Magistrate reached the female ward, he reached that place and certified the condition of the patient as found in Ex.P8, which is marked as Ex.P-8A. After recording the statement he again certified the condition of the deceased, which is marked as Ex.P-8B. In the cross-examination he stated that he was on duty when the patient was admitted in the hospital; the patient was unconscious and came to conscious on 25-10-2005 while he was in hospital. After regaining conscious she was speaking coherently as endorsed by him in Ex.P8. At the time of admission of the patient in the hospital he advised the parents and attendants to take her to Government General Hospital, Kurnool for better treatment. 18. P.W.9, the doctor who conducted postmortem examination of the deceased stated that both upper limbs and lower limbs are burnt. He opined the cause of death is due to shock and septicemia due to extensive burns and the patient died at 10.30 P.M. on 16-11-2005 in Community Hospital, Yemmiganur. Ex.P10 is the postmortem certified issued by him. 19. P.W.10, Investigating Officer, who worked as sub-Inspector of Police, stated that on receipt of MLC intimation on 24-10-2005, at 9 A.M. he rushed to the Yemmiganur Government Hospital at 9.15 A.M. As the patient was unconscious, he recorded the statement of P.W.1—father of the deceased and basing on the said statement he registered a case in Cr.No.137/2005 and took up investigation. On 25-10-2005, at 12 noon he received MLC intimation from the hospital that the deceased was in conscious and stable mind. He reached the hospital at 12.30 p.m. and recorded the statement of the deceased covered under Ex.P13. Basing on the statement he altered section of law and sent a requisition to JFCM Court, Yemmiganur under Ex.P.14. In the cross-examination he stated that the deceased in her statement stated that she was immolated with a burning stick by her husband—A1. He has not seized any burning stick from the scene of offence and he has not examined Beerakka with whom A1 alleged to have developed illegal intimacy. He also admitted that when the Magistrate came, relatives of the victim were besides her. 20. P.W.11 is the Inspector of Police who conducted the inquest on the dead body of the deceased. 21. D.W.1 is the son of the deceased and A1, who first informed about the quarrel between the deceased, A1 and A2 to P.Ws.1 and 2, stated that his grant mother (A2) was not at home when the incident occurred and no quarrel took place between the deceased and A2. A1 and A2 used to get treatment to the deceased with Dr.Eswara Reddy; due to suffering with cough, breathlessness the deceased herself immolated and died. He stated in the cross-examination that his material grant parents came to the house when the incident happened and they have taken his deceased mother to the hospital. 22. From the above evidence adduced by the prosecution that D.W.1 corroborated the evidence of P.Ws.1 and 2 about his informing the quarrel between the deceased, A1 and A2; that P.Ws.1 and 2 visited the house of the accused and deceased and took the deceased to the hospital, the prosecution is able to establish that the deceased was unconscious at the time when she admitted in the hospital and regain conscious only on 25-10-2005. On requisition, the Investigation Officer recorded the statement of the deceased later the Magistrate recorded the dying declaration under Ex.P8. Both of them admitted that the parents of the deceased were by her side. P.W.3 who is the neighbour stated that on hearing the cries at the house of the accused, he reached along with Srinivasulu—L.W.4, Nagappa —L.W.8 and P.W.4, where he saw the deceased lying on the ground and they splashed water; then P.Ws.1 and 2 reached the place; deceased was not in a position to speak. Both the accused were not found in the house. D.W.1 admitted in the cross-examination that he went and informed about the incident to P.Ws.1 and 2 while P.W.1 was in public tap, but denied that he informed quarrel is going on between deceased and A1 and A2. In Ex.P1—report P.W.1 has stated on enquiry with neighbours, when his daughter questioned about the extra marital relationship with one Beerakka, A1 and A2 quarreled with her and insisting her to die. By disappointing with the said attitude the deceased lost hope and set back to the home and self- immolated. The marital discard between A1 and the deceased was elicited by defence counsel in the cross-examination of P.W.1 and also the same is corroborated by P.W.3, where a Panchayat was held in that connection. When the incident has happened in the house both the accused were not present and left the house when P.Ws.1 and 2 visited the house nor they visited the hospital when the deceased admitted into the hospital which itself probablise that the accused alone none other else committed the offence. 23. The Supreme Court in NALLAPATI SIVAIAH’s case (1 supra) held the Dying Declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a Dying Declaration depends upon not only the testimony of the person recording Dying Declaration - be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion. The court must satisfy to itself that the person making the Dying Declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence. 24. In PANIBEN V STATE OF GUJARAT[4] the Supreme Court held as follows: “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 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. The Court has laid down in several judgments the principles governing dying declaration, which could be summed up 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