THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1014 OF 2004 ORDER: This appeal is directed against the judgment of conviction passed by the I Additional District and Sessions Judge, Ranga Reddy District, Hyderabad in S.C.No.449 of 2002 on 09.04.2004. The appellant herein was prosecuted for the offence under Section 302 IPC alleging that on 18.06.2001 at about 8.00 P.M. the accused gone to his house and the deceased, who is his wife asked him as to why he is not coming to the house for last 3 or 4 days and further requested to provide money for domestic expenses, due to which the accused quarreled with the deceased and informed her that he is going to give divorce and later he poured kerosene on her and set fire. As a result of which, she sustained severe burn injuries and she was admitted in Government General Hospital, Tandur for treatment and while undergoing treatment, P.W.12 Sub-Inspector of police has recorded her statement and registered a case in Crime No.61 of 2001 under Section 307 IPC and took up investigation. During the course of investigation, he has sent a requisition to P.W.6 Judicial First Class Magistrate, Tandur for recording of dying declaration and he has recorded the dying declaration. Thereafter, the deceased was shifted to Osmania General Hospital, Hyderabad for further treatment and while undergoing treatment she died on 26.06.2001. Thereafter the section of law was altered to 302 IPC. After conducting autopsy over the dead body of the deceased, the dead body was handed over to the blood relations of the deceased for conducting last rites. The Investigating Officer has conducted scene of offence panchanama and seized kerosene tin and held inquest over the dead body of the deceased and after completion of investigation filed the charge sheet against the accused. The learned Sessions Judge has framed the charge under Section 302 IPC against the accused and the accused pleaded not guilty for the said charge. In order to establish the said charge, the prosecution examined 14 witnesses and got marked Exs.P.1 to P.11 and M.O.1. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 304 Part II IPC and convicted and sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.1,000/- in default to undergo simple imprisonment for one month. Aggrieved by the said conviction and sentence, the present appeal is filed. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offence under Section 304 Part II IPC against the accused beyond reasonable doubt? P O I N T: Learned counsel for the appellant has pleaded that the lower Court has convicted the accused only basing on the dying declaration and the said conviction is liable to be set aside as the dying declaration was not recorded when the deceased was in fit state of mind to give dying declaration. Learned Public Prosecutor has pleaded that the initial dying declaration was recorded by the Sub-Inspector of police, basing on which, the First Information Report was issued, subsequently Judicial First Class Magistrate, Tandur has recorded the dying declaration and the Doctor who was present at the time of giving dying declaration has certified that the deceased was conscious and coherent while giving dying declaration and the Magistrate also satisfied with the condition of the patient that she was in a fit state of mind at the time of recording dying declaration and the lower Court has rightly convicted the accused basing on the said dying declarations even though the other witnesses have turned hostile to the prosecution. According to the prosecution on 18.06.2001 at about 8.00 P.M. the accused came to his house and the deceased, who is his wife asked him as to why he is not coming to the house for last 3 or 4 days and for not providing money for domestic expenses, for which the accused quarreled with her and informed her that he is going to give divorce on the next day morning and immediately poured kerosene and set fire to her. The prosecution has examined 14 witnesses. P.W.1 is the owner of the house, in which the accused and deceased were tenants and he stated that he has shifted the deceased in his auto to the hospital at the instance of police. P.W.2 is the wife of P.W.1 stated that the deceased informed her that while she was preparing food, stove burst and sustained burn injuries. P.W.3 father of the deceased has not spoken anything about the disputes between the accused and the deceased and he has not supported the case of the prosecution, as such he was declared hostile to the prosecution. P.W.4 is the Mandal Revenue Officer, Tandur, who conducted the inquest over the dead body of the deceased. P.W.5 is the Doctor, who conducted autopsy over the dead body of the deceased. P.W.6 is Judicial First Class Magistrate, Tandur, who has recorded the dying declaration Ex.P.7. P.W.7 is the aunt of the deceased, who has stated that the deceased informed her that her husband poured five litres of kerosene and set fire to her and till the death of the deceased; she was with her in the hospital. P.W8 is the mediator for the scene of offence Panchanama and he also turned hostile to the prosecution. P.W.9 is the mediator for the inquest; he also turned hostile to the prosecution. P.W.10 is the mediator for the scene of offence Panchanama and seizure of the plastic tin from the scene of offence. P.W.11 is the constable, who has shifted the deceased to the Government General Hospital, Tandur. P.W.12 is the Sub-Inspector of Police, who has recorded the statement of the deceased and issued First Information Report and conducted investigation. P.W.13 is the Inspector of police, who has verified the investigation done by P.W.12 and filed the charge sheet. P.W.14 is the resident of Yakatpura and knows both the deceased and the accused, but he did not speak anything about the differences between the accused and the deceased and he also did not speak anything as to how the deceased received burn injuries. Therefore all the witnesses except P.W.4 Mandal Revenue Officer, who has conducted the inquest, P.W.5 Doctor, who has conducted autopsy, P.W.6 Judicial First Class Magistrate, who has recorded the dying declaration, P.W.7 aunt of the deceased, who was with the deceased till her death, P.W.10 mediator for the scene of offence Panchanama, P.W.11 police constable, who shifted the deceased to the Government General Hospital, Tandur and P.W.12 Investigating Officer, who has recorded the dying declaration Ex.P.9, P.W.13 Inspector of Police, who has filed the charge sheet and P.W.14, who got acquaintance with the accused and the deceased, have turned hostile to the prosecution. Since the incident has taken place inside the house of the deceased, there are no eyewitnesses to the incident, the circumstantial witnesses also turned hostile to the prosecution; the only evidence available on record is the dying declarations recorded by P.W.6 and P.W.12 and the oral evidence of P.W.7. P.W.7, who is related to the deceased, in her chief- examination, has stated that she was informed by the deceased that her husband poured 5 litres of kerosene on her and set fire. But in the cross-examination, she has stated that she was informed by the father of the deceased that she had burn injuries and then she went to the hospital and by the time, she went to the hospital the grandmother of the deceased was there and she was examined by the police only after the death of the deceased. Therefore, according to P.W.7 father of the deceased has informed her about the burn injuries of the deceased, but the father, who has examined as P.W.3 did not speak anything with regard to his informing about the burn injuries sustained by the deceased to P.W.7. Thus, the only evidence available on record is dying declarations recorded by P.Ws.6 and 12. P.W.6 is Judicial First Class Magistrate, Tandur and he has recorded the dying declaration on 18.06.2001 on his receiving requisition from the Tandur police. According to him, he has recorded the statement after getting himself satisfied that the patient was conscious and she is in a position to give statement. Ex.P.7 is the statement recorded by him. He has obtained the endorsement of the Medical Officer about the fitness of deponent at the time of recording statement. P.W.12 Investigating Officer has recorded the Ex.P.9 statement of the deceased immediately after her admission into the hospital and basing on which, he has issued the First Information Report Ex.P.10. Learned counsel for the appellant contends that both the dying declarations cannot be relied upon as the said dying declarations do not disclose about the fit state of mind of the deceased at the time of giving the declarations and in support of his contention he relied upon a decision rendered in “PAPARAMBAKA ROSAMMA AND OTHERS V. STATE OF A.P.[1]”. Wherein it was held that in the absence of medical certificate that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. The certificate appended to the declaration at the end by the Doctor did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the statement.” In view of the material omissions, the dying declaration could not be accepted as true and genuine and was made when the injured was in a fit state of mind. The other decision relied upon by the appellant’s counsel is rendered in “MOOLA NARENDER GOUD V. STATE OF A.P.[2]”. Wherein the Division Bench of this Court by relying upon the decision of the Supreme Court referred above, has held that in the absence of medical certification that the injured is in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate. The other decision relied upon by the appellant’s counsel is rendered in “SUNDARAPALLI SATYANARAYANA @ SATTIBABU V. STATE OF ANDHRA PRADESH AND ANOTHER[3]”. Wherein the Division Bench of this Court has held that there is no material on record to show that the deceased was in a fit state of mind to make declaration and the dying declaration recorded is not in accordance with the rule 33 (2) of Criminal Rules of Practice, as such the same cannot be relied upon to convict the accused. In the present case, Ex.P.9 is the statement recorded by the Investigating Officer P.W.12, wherein the duty doctor has mentioned that the statement was recorded before him and he did not certify about the fit state of mind of the deceased at the time of giving the said statement to the Investigating Officer P.W.12. The dying declaration recorded by P.W.6 is marked as Ex.P.7. Wherein P.W.6 got endorsement of the doctor, before commencement of recording of dying declaration, to the effect that the patient is conscious and coherent while recording dying declaration, thereafter he has put some questions to know the fit condition of the patient and thereby satisfied with her condition and proceeded with recording of the declaration and after completion of the recording of the dying declaration, he obtained the endorsement of the doctor stating that the patient is conscious and coherent while recording the dying declaration. Therefore, the Magistrate has not obtained the opinion of the medical officer that the patient was in fit state of mind to give the dying declaration. He also made an endorsement about his satisfaction that the patient is in fit condition to give statement. Therefore, there is no material on record to show that the patient was in fit state of mind at the time of recording the dying declaration. In view of the decisions referred above, an essential requirement to rely upon the dying declaration is that the patient must be in a fit state of mind to give the dying declaration at the time of recording the same and in the absence of same; it is not safe to rely upon the said dying declaration. In the present case except the said dying declarations, there is no other evidence to connect the accused that he has caused burn injuries to the deceased, moreover the statement recorded by P.W.12 under Ex.P.9 is varies with the dying declaration recorded by P.W.6 under Ex.P.7 in some material aspects. In Ex.P.9 dying declaration recorded by P.W.12 Sub- Inspector of police the deceased has stated that when her husband came to the house on 18.06.2001 at about 8.00 P.M., she has questioned him as to why he is not coming to the house for last 3 or 4 days and as to why he is not paying the money for domestic expenses, upon which he informed her that he is going to give divorce to her. When she questioned him why he is talking like that, he took 5 litres kerosene tin and poured on her and set fire. In Ex.P.7 dying declaration recorded by P.W.6 Judicial First Class Magistrate, the deceased did not state anything about the deceased coming to the house after 3 or 4 days and not providing money for domestic expenses and in that regard a quarrel took place between them, but she has only stated that as she has given birth to female child for second time, the accused wants to desert her and he informed her that he is going to give divorce on the next day morning. Then she caught hold of his neck and he beat her, as a result of which she fell down unconscious, and then he has poured kerosene and closed the doors and set fire to her with a matchstick. Then she ran out of the house and the accused went away on his scooter. Therefore, there is much variance in material aspects in the dying declaration recorded by P.W.6 Judicial First Class Magistrate and the statement recorded by P.W.12 Sub- Inspector of Police. As already observed above that there is no material on record to show that the deceased was in a fit state of mind at the time of giving dying declaration, it is not safe to rely upon such dying declaration. Since there is no other evidence on record to establish the involvement of the accused in causing burn injuries to the deceased, I hold that the prosecution has failed to prove that the accused is responsible for causing burn injuries to the deceased and thereby failed to establish the offence under Section 304 Part II IPC against the accused. In the result, the appeal is allowed by setting aside the conviction and sentence passed by the I Additional District and Sessions Judge, Ranga Reddy District, Hyderabad in S.C.No.449 of 2002 dated 09.04.2004 and the accused is accordingly acquitted. _______________________ P.DURGA PRASAD, J 17th June, 2011 KSP [1] AIR 1999 Supreme Court 3455 (1) [2] 2000 ALD (Crl.)-1-92 [3] 2011 (1) ALD (Crl.) 641 (AP)