HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE K.G.SHANKAR CRL.A.NO.678 OF 2007 Dt.16.11.2010 Between: Bondala Sreenu ..Appellant And State of Andhra Pradesh rep. by its Public Prosecutor ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE K.G.SHANKAR CRL.A.NO.678 OF 2007 JUDGMENT: (Per Sri Justice V.Eswaraiah) Appellant herein is the accused. He has been convicted for the offence punishable under Section 302 I.P.C., and sentenced to suffer Rigorous Imprisonment for life and also to pay a fine of Rs.500/-, in default, Simple Imprisonment for six months by judgment dated 19.1.2007 in S.C.No.237 of 2006 on the file of the Principal Sessions Judge, West Godavari, Eluru. Heard Sri D.Raghava Reddy, Legal Aid counsel appearing on behalf of the appellant and the learned Public Prosecutor. The case of the prosecution is that the accused – Bondala Sreenu is a native of Bridgepet, Kovvur and he developed illicit intimacy with the deceased – Venkata Lakshmi, who was a widow. Accused used to pester the deceased for money often and consequently they were at loggerheads. While so, on 10.2.2005 at about 9.00 p.m., the accused demanded the deceased money for consuming alcohol, but she refused. Then he got enraged and poured kerosene on her and lit fire. She raised hue and cry and on hearing the cries P.Ws.1 and 2 reached the scene and then P.W.1 and the accused put off the flames. The accused also sustained burn injuries to his both hands. Then she was shifted to Community Hospital, Kovvur with more than 90% burns. On receipt of intimation under Ex.P- 21 from P.W.8, the doctor, P.W.11, the Assistant Sub Inspector of Police, Kovvur Town P.S., rushed to the hospital and recorded the statement of the victim under Ex.P-22 and basing on the said report a case in Crime No.26 of 2005 of Kovvur P.S., under Ex.P-23 was registered against the accused for the offence under Section 307 IPC. The accused was also admitted as inpatient for burn injuries sustained by him in the accident in Kovvur Hospital. P.W.6, the Judicial Magistrate of First Class also recorded the dying declaration of the victim in the hospital. After receipt of death intimation from hospital, P.W.11 altered the section of law from Section 307 IPC to Section 302 IPC and laid the charge sheet after investigation. On behalf of the prosecution, P.Ws.1 to 13 were examined and got marked Exs.P-1 to P-28 and M.Os.1 to 11 were also marked. On behalf of the defence, D.W.1 was examined and Ex.D-1 was marked. It is the case of the accused that there is no direct eyewitness to the alleged incident and P.Ws.1 and 2 are only circumstantial witnesses who reached the scene after hearing the cries of the deceased. The entire case rests on the uncorroborated dying declarations of the deceased made before P.Ws.1 and 2 and P.Ws.11 and 6. It is stated that all the dying declarations are uncorroborated by independent witnesses. So far as the oral dying declaration said to have been made before P.Ws.1 and 2 voluntarily by the victim is concerned, the same was not disclosed to anybody right from the time when the deceased was said to have stated to them on 10.2.2005 at 9.00 p.m., till they were examined in Court on 29.11.2006. Therefore, the evidence regarding the oral dying declaration has absolutely no value and hence it cannot be believed. P.W.1 stated that he informed the incident to the police by telephone, but P.W.11 denied having received such information and therefore the oral dying declaration to P.Ws.1 and 2 cannot be believed as true and correct. So far as the dying declaration pertaining to the statement before P.W.11 (A.S.I) is concerned, it is stated that the said dying declaration is tutored one by the attendants who surrounded the victim. The presence of 2 to 3 attendants was also admitted by P.W.8, doctor who treated the victim also. Therefore, the dying declaration recorded by P.W.6, Judicial First Class Magistrate, cannot be said to be a voluntary declaration made by the victim, but it is a tutored one by the attendants who were surrounded by the victim. There are number of discrepancies and developments between the dying declaration before the Assistant Sub Inspector and the dying declaration before the Judicial Magistrate of First Class. According to P.Ws.1 and 2 the accused also made attempt to extinguish the flames and in that process he received injuries to both his hands and he never absconded and he was in police surveillance. It is stated that the victim has received more than 90% of burn injuries and according to P.W.3 she was unable to talk when she saw her and therefore it cannot be said that the victim was in a position to make any statement. It is further stated that the police fumbled in explaining the arrest of the accused as per the versions of P.Ws.11 and 13. According to P.W.13, Inspector of Police, he arrested the accused at the entrance gate of Government Hospital, Rajahmundry on 14.3.2005 at 12.30 p.m., and later he was sent to judicial custody. But, according to P.W.11, Assistant Sub Inspector of Police the accused surrendered before him in the police station with burn injuries at about 5.00 a.m., on 11.2.2005 and immediately he sent him to Government Hospital for treatment through Head Constable and also deputed a Police Constable for surveillance of the accused and thereafter handed over the further investigation. Thus, it is stated that in the absence of any direct eyewitness, the case rests only on the circumstantial evidence of P.Ws.1 and 2 and the dying declarations said to have been made by the victim before P.Ws.1, 11 and 6. According to P.W.11 the accused was said to have been arrested on the next day of the incident and it is unnatural in stating by P.W.13 that he arrested the accused on 14.3.2005 i.e., more than a month later. It is stated that the accused never escaped and in fact he was also attending on the victim in the hospital and the victim was having illicit intimacy with one Lakshmana Rao and in fact the victim was of bad character and a case was also registered against her under Ex.D-1 in which charge sheet in C.C.No.684 of 2004 was also filed in the court of II Additional Judicial First Class Magistrate, Tanuku, for the offence of Immoral Traffic Prevention Act. In support of defence, the accused also examined D.W.1, a resident of Tanuku, who was running brothel business, who was accused No.3 and the victim was accused No.8 in the said case. Thus, it is stated that there was no motive or intention to kill the victim and in the absence of any direct witnesses, it is not just and proper to rely on circumstantial evidence as well as the uncorroborated dying declarations. The question that arises for consideration is whether the dying declarations are in variation and whether the said dying declarations are voluntary, trustworthy and credible. According to P.W.1, he is running a Coffee Hotel near Bridgepet, Kovvur and the accused and deceased were staying as tenants near his house since one month prior to the incident. On 10.2.2005 at about 9.00 p.m., on hearing cries of the deceased Lakshmi, himself and the neighbour (P.W.2) came from the respective houses and saw the victim with burn injuries on her body and the flames are coming out and himself and the accused Sreenu have put off the said flames. The deceased informed him that due to disputes between herself and the accused, the accused poured kerosene on her body and lit her fire. After hearing the said statement given by the victim, the accused left the place and went away. In the cross-examination he has stated that his hotel is about four or five yards away from the place of incident, which occurred between 9.00 and 9.30 p.m. He also stated that he informed the incident to the police through telephone and later he took her to the Government Hospital for treatment along with another person, Karri Nageswara Rao. The suggestions that she might have received burn injuries during the process of cooking and the victim has not informed the same are denied. P.W.2 is another neighbour residing in the same locality by the side of the house of the accused stated that on 10.2.2005 at about 9.00 p.m., he heard cries of the victim Lakshmi and he rushed out and saw the victim coming from the house with burn injuries and flames and P.W.1 and the accused put off the fire. Himself and P.W.1 asked her for the reason of the burn injuries to the victim, for which she informed that the accused poured kerosene on her body and lit her fire. After hearing the said statement given by the victim, the accused ran away from the place. P.W.1 and another took the injured victim to Government Hospital and he was examined by the police. In the cross-examination it is stated that all the persons gathered and some one asked as to how the victim sustained burn injuries. P.Ws.3 and 5 stated about the relationship of the accused and the victim. The victim earlier married one Kondaiah and she had a son through him. Thereafter, the said Kondaiah died due to ill-health and after his death the victim was living with the accused. P.W.11, Assistant Sub Inspector of Police stated that on 11.2.2005 at 01.40 hours he received information from the Community Health Centre, Kovvur about the joining of the deceased and he immediately rushed to the hospital and recorded the statement of the victim under Ex.P-22 and also got attested the said report by Medical Officer in order to show that the patient was conscious and coherent in giving the statement. He registered F.I.R. in Crime No.26 of 2005 under Ex.P-23 and sent to II Additional Judicial First Class Magistrate, Kovvur. On the same day at about 5.00 a.m., the accused surrendered before him with burn injuries and he sent him to hospital for treatment, but he did not arrest him. The accused was ultimately arrested by P.W.13 on 14.3.2005, a month thereafter, and sent to judicial custody. Learned counsel appearing for the accused mainly submits that there is clear variation in the dying declarations said to have been recorded by P.W.11 (A.S.I.) and P.W.6 (J.F.C.M.). It is stated that the dying declaration Ex.P-15 recorded by P.W.6 is tainted by tutoring the victim by her near and dear as disclosed in the evidence. It is stated that the dying declaration recorded by P.W.11 under Ex.P-22 has no legal sanctity and evidentiary value since the victim was under the influence of police. We have perused the original Telugu version of the dying declaration. Ex.P-22 was recorded by P.W.11 (A.S.I.) on the same day of incident i.e., 10/11.2.2005 at 2.30 a.m. The said dying declaration was also attested by the duty doctor stating that the patient is conscious and coherent while recording the statement. The material part of the statement is that the accused is alcoholic and he used to beat her demanding money and used to doubt her fidelity. On 10.2.2005 at about 9.00 p.m., he came in drunken state and asked her to give Rs.100/-, then she replied she did not have and he stated that you have somebody and you are giving to him and by saying he brought a kerosene tin and poured on her body and lit fire with match stick. She received burn injuries burning her saree, jacket and body. The neighbours also came but they could not do anything. Then P.W.1 came and shifted her to the hospital on a cart. The dying declaration Ex.P-15 is recorded by P.W.6 (J.F.C.M.) 20 minutes thereafter i.e., started recording at 2.50 a.m., and completed by 3.00 a.m., wherein it is stated that the declarant was able to answer all the questions about her name, husband’s name and her presence in the hospital and time and all the relevant questions. It is stated that she is conscious, coherent and in a fit state of mind to give her declaration. She stated before the Magistrate that her husband accused asked her to give money, that as she has not given money, he beat her and when she questioned why he is beating, he stated that he will beat till she gives money and asked her to pour kerosene on her body and lit fire, for which she refused. Then he brought the kerosene tin, which was there in the house and poured the same on her body and lit fire. Then she cried, but he did not care. Except herself and her husband accused there was no body in the house. Her parents’ in-laws are residing in separate house. The statement said to have been made by the victim before P.Ws.1 and 2 and P.Ws.6 and 11 are consistent and without any deviation. No doubt, the statement made before P.Ws.1 and 2 is only a short statement about the reason for causing the burn injuries when P.Ws.1 and 2 asked the victim as to how she received the burn injuries. P.W.11 on receipt of information immediately rushed to the Kovvur hospital and recorded the statement of the victim before the presence of doctor. There is also no variation with regard to the statement made before P.W.6. P.Ws.1 and 2 are independent witnesses and they have no relation at all with the accused or the victim and they are independent witnesses. There is no motive or any reason for them to implicate the accused. Therefore, we are of the opinion that the statements made by P.Ws.1 and 2 are trustworthy and reliable. In so far as the dying declarations are concerned, we are of the opinion that the said dying declarations are voluntary, trustworthy and credible. The learned Sessions Judge has rightly placed reliance on the judgment of the Apex Court reported in Ravikumar alias Kutti Ravi v. State of Tamil Nadu[1] wherein it was held in para 13 as follows: “As regards the manner in which the Magistrate recorded the statement of the deceased with the help of the doctor P.W.9, there is no reason or material to show that the dying declaration was the result of either a product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily, it is trustworthy and has credibility.” Learned Public Prosecutor also relied on the judgment of the Apex Court reported in Vikas and others v. State of Maharashtra[2] wherein the Apex Court after extracting Section 32 of the Evidence Act, held in paras 22 and 26 as follows: “The principle underlying admissibility of dying declaration is reflected in the well-known legal maxim: Nemo moriturus praesumitur mentire; i.e., a man will not meet his Maker with a lie in his mouth. A dying man is face to face with his Maker without any motive for telling a lie. Clause (1) of Section 32 of the Act has been enacted by the Legislature advisedly as a matter of necessity as an exception to the general rule that hearsay evidence is no evidence and the evidence, which cannot be tested by cross- examination of a witness, is not a admissible in a Court of Law. But the purpose of cross- examination is to test the veracity of the statement made by a witness. The requirement of administering oath and cross-examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely at a time when the person making the statement is almost dying. A man on the death-bed will not tell lies. It has been said that when a person is facing imminent death, when even a shadow of continuing in this world is practically over, every motive of falsehood is vanished. The mind is changed by most powerful ethical and moral considerations to speak truth and truth only. Great solemnity and sanctity, therefore, is attached to the words of a dying man. A person on the verge of permanent departure from his earthly world is not likely to indulge into falsehood or to concoct a case against an innocent person, because he is answerable to his Master for his act. Moreover, if the dying-declaration is excluded from admissibility of evidence, it may result in miscarriage of justice inasmuch as in a given case, the victim may be the only eye-witness of a serious crime. Exclusion of his statement will leave the Court with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice.” Therefore, we are of the opinion that the learned Sessions Judge on appreciation of the evidence available on record rightly believed the statement of the victim as well as P.Ws.1 to 6 and 11 and convicted the accused for the offence punishable under Section 302 IPC. We do not see any merit in the appeal. The criminal appeal is accordingly dismissed. ________________ V.ESWARAIAH, J. ________________ K.G.SHANKAR, J. 16.11.2010 kpr [1] 2006 (2) ALT (Crl.) 161 (SC) [2] 2008 (1) ALD (Crl.) 880 (SC)