THE HON’BLE SRI JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE V SURI APPA RAO CRIMINAL APPEAL No. 1031 OF 2007 JUDGMENT : (Per Sri Justice V Suri Appa Rao) The appellant herein is sole accused, filed the present appeal under section 374 (2) of Criminal Procedure Code questioning the judgment of conviction passed against him in S.C No. 44 of 2007 dated 15.6.2007, convicting the accused under section 235 (2) of Criminal Procedure Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/- for the offence punishable under Section 302 of Indian Penal Code, in default to undergo simple imprisonment for a period of six months. The case of the prosecution as unfolded during the trial is that Masarat Begum/deceased is wife of Mohammed Osman/ Accused and their marriage took place two years prior to the date of alleged incident. Since accused is not doing any work, the deceased is eking out her livelihood by preparing crackers and on 6.5.2007 they shifted their residence to Kishan Bagh and in the evening the accused brought ‘Thumps up’ and after drinking the same, the deceased felt drowsy and slept. That in the intervening night of 6/7.5.2005 at about 1 A.M. in house bearing D.No. 19.5.483/A/1/54, Nazamnagar, Kishan Bagh, Hyderabad, the accused poured acid on the deceased and due to burning she woke up and started shouting, then the accused hit her with a stone on her head saying that he will kill her and due to hitting of stone she sustained bleeding injuries, on hearing the cries the daughter of the house owner came there and rescued the deceased and the accused fled away from the scene and the deceased was shifted to Osmania General Hospital. On receiving the information about the alleged incident, Mr V.Raja Rao, Head Constable (High Court No.5159) attached to Bahadurpura police station, recorded the statement of Smt Masarat Begum on 7.5.2005 at 5.45 A.M which is marked as Ex. P.16 and based on the said statement a case in Crime No. 88 of 2005 under Section 307 of Indian Penal Code was registered and investigation was taken up. Then, the Sub Inspector of Police made a requisition to the II Metropolitan Magistrate, Hyderabad –City, to record the dying declaration of Smt Masrat Begum and in turn the learned XI Metropolitan Magistrate at Secunderabad, visited Osmania General Hospital and after getting himself satisfied about the mental status of the Smt Masrat Begum, recorded her statement on 7.5.2005 and concluded the same by 9.45 A.M., and handed over the same to the Sub Inspector of Police, Bahadurpura police station for further investigation, which is marked as Ex.P.19. On the same day i.e., 7.5.2005, the Sub Inspector of police took up investigation and visited the scene of offence i.e., D.No. 19.5.483/A/1/54, Nazamnagar, Kishan Bagh, Hyderabad, secured the presence of mediators and in their presence observed and drafted the scene of offence marked as Ex.P.7 and seized the material objects i.e., light green colour blanket, two partly burnt pillows and one yellow colour plastic can under cover of Ex.P.7 which were marked as M.O.1 to M.O.3. He has also recorded the statements under Section 161 of Criminal Procedure Code of P.W.2 who is mother of the deceased and P.W.3 who is an eye witnesses and also recorded Section 161 of Cr.P.C. statement of Smt Masrat Begum on the same day i.e.7.5.2005 which is marked as Ex.P.20. on 13.5.2005, the accused was arrested and his detailed voluntary confessional statement was recorded in presence of panch witnesses and he was sent to judicial remand. While so, Smt Masrat Begum while undergoing treatment succumb to burn injuries on 17.6.2005 i.e., after surviving for about one month and ten days. On receipt of the said information and an additional complaint by father of the deceased P.W.1, the section of law from Section 307 was altered to Section 302 and 304-B of IPC and alteration memo in Ex.P-21 was sent to the Court. On requisition, the Mandal Revenue Officer /P.W.6 conducted inquest over the dead body in Ex.P.12 and later the body was sent for postmortem examination. Dr K.padmavathi, Tutor, Forensic Medicine, Osmania Medical College and Osmania General Hospital conducted autopsy over the dead body and issued postmortem report Ex.P.24 and opined that the death of the deceased was due to ‘Septicemia consequent to burns’. On completion of the investigation, the Sub Inspector of Police filed charge sheet in the Court. The learned Special Judge for Economic Offences cum VIII Additional Metropolitan Sessions Judge, Hyderabad framed the charges against the accused under Section 302, 304-B and 498-A of Indian Penal Code and the plea of the accused is ‘not guilty’. In order to prove the acquisition, the prosecution examined P.W.1 to P.W.12 and marked documents in Ex.P.1 to Ex.P.24 and marked material objects in M.O.1 to M.O.3. The Court below considering the evidence of P.W.5 to 11 and the documentary evidence and the material objects and the circumstantial evidence i.e., burn injuries sustained by the accused and the statement of the accused before learned Magistrate that acid burn injuries were caused to him by prosecution witnesses/ deceased, the statements of the deceased recorded under Section 161 of Cr.P.C and the dying declaration held the accused guilty of the charge and found him guilty of the offence punishable under Section 302 of IPC and convicted under section 235 (2) of Cr.P.C and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- and in default to undergo simple imprisonment for a period of six months. Questioning the said conviction and sentence the present appeal is filed. P.W.1 is father, P.W.2 is mother and P.W.4 is brother of deceased and P.W.3 is neighbor of the deceased, however, they did not support the case of the prosecution and turned hostile. P.W.5 /Sri Shaik Ibrahim is panch witness in whose presence the scene of offence and rough sketch of scene and took photographs of the scene. P.W.6 /Sri G Vijay Kumar is the then Mandal Revenue Officer, who has conducted inquest over the dead body in presence of panchas who opined that Mohd Osman poured acid on the body of Smt Masarat Begum on 6/7.5.2005 and beat with stone on her head with an intention to kill for more dowry. He has also recorded the statement of P.W.2 and P.W.4 which were marked as Ex.P.13 and Ex.P.14. P.W.7/Dr Ram Mohan Lal is Causality Medical Officer in Osmania General Hospital, who has treated the deceased. In his evidence, he stated that patient by name Masrat aged 30 years, female , resident of Kishan Bagh, Hyderabad was brought to Causality ward on 7.5.2005 at 2.50 A.M and he examined the patient and found following injuries; 1. Patient sustained 45 to 50 % burns approximately. 2. Laceration of about 4 X 1 C.M behind right ear. He further stated that after providing first aid the patient was shifted to Acute Burns Care Ward. P.W.8/ Sri V Raja Rao is Head Constable. In his evidence, he stated that on receiving telephone message on 7.5.2005 at about 5.00 a.m., he rushed to the Osmania General Hospital and recorded the statement of patient at 5.45 a.m. in Ex.P.16 and that she stated that her husband Osman made her to consume thumpsup and she became drowsy and slept and when she was sleeping at about 1.00 a.m. midnight Osman poured acid on her body and hit on her head with a stone. She further stated that Osman threatened her with dire consequences and that her relatives brought her to hospital for treatment. P.W.8 stated that Doctor was present when he has recorded her statement. Based on the said statement he registered as case in Crime No. 88 of 2005 under section 307 of IPC and issued FIR. P.W.9/ Sri Huzaib Ahmed Khan is then XI Metropolitan Magistrate, Secunderabad, who recorded the statement of the Masrat Begum. In his statement he stated that on requisition from the police, he proceeded to Osmania General Hospital and reached ABC ward at 9.15 A.M and patient was identified by Duty Doctor, who certified that the patient is conscious, coherent and in fit state of mind. Then he put some preliminary questions to patient regarding her name, name of her husband, place of her residence etc and on satisfying that the patient was giving rational answers he proceeded further and recorded her dying declaration. P.W.10/ Sri A Sudershan is Sub Inspector of Police. In his evidence he stated that on 7.5.2005 he took charge in the case from Head Constable, visited the scene of offence, secured the presence of mediators and observed the scene of offence in their presence, drafted the scene of offence observation panchanama Ex.P.7, seized M.O.1 to M.O.3 and drawn rough sketch Ex.P.8 and secured a photographer who got scene photographed. He has also examined P.W.2 mother of deceased, P.W.3 an eye witness and recorded their statements under Section 161 of Criminal Procedure Code. That he visited Osmania General Hospital and recorded the statement under Section 161 of Criminal Procedure Code of Smt Masrat Begum on 7.5.2005 in Ex.P.20. He further stated that on 17.6.2005, Smt Masrat Begum died and then the section of law was altered from Section 307 to Section 302 and 304-B of IPC and sent alteration memo Ex.P.21 to concerned court. He has also stated that on 13.5.2005 he has arrested the accused and sent to judicial remand. P.W.11 /Dr K.Parvathi is Tutor, Forensic Medicine, Osmania Medical College and Osmania General Hospital, who conducted autopsy over the dead body. In her statement she stated that on 17.6.2005 she conducted autopsy examination over the dead body of the deceased and found the following injuries (Antimortem injuries) “Dermo epidermal burnt injuries present- Patchy areas over face including eyes, neck, lower chest, front of abdomen both forearms and both legs. Deep burnts present over the front and back of upper chest, front of both upper arms, front of both thighs. Burnt areas are infected with greenish yellow puss. About 30 % of body surface area involved in burns” She opined that the cause of death is due to ‘Septicemia consequent to burns’ and issued postmortem examination report in Ex.P-24. P.W.12 /Sri I Jyothi Prakash is Inspector of Police who has examined P.W.4/Mohd Asif and recorded his statement in Ex.P.5. The present appeal was admitted by this Court by orders dated 13.8.2007 and the accused in undergoing sentence. On 8.3.2011 when the appeal is taken up for hearing, Mr.M.R. Mohammed Irfan, learned counsel for appellant is not present and to secure his presence, a Court slip was sent to Advocates Association and same was affixed on the notice board therein, in spite of the same since there is no representation the matter was adjourned to 9.3.2011. On 9.3.2011 also there was no representation for the appellant nor any representation is made on his behalf, hence, in the interest of justice, this Court decided to provide legal aid to the appellant and Smt Nettam Ammaji, Advocate (7764) is requested to appear on behalf of appellant and matter was adjourned to 15.3.2011. Further the Registry was directed to make available a copy of the case file to said Smt Nettam Ammaji. Today when the matter is taken Smt Nettam Ammaji appeared for accused and submitted her arguments. Learned counsel for appellant submitted that P.W.1 to 4 did not support the case of the prosecution and the evidence of P.W.5 to P.W.12 does not connect the appellant to commission of the offence and there are inconsistencies in the statements recorded by the deceased under Section 161 of Cr.P.C and that of the dying declaration recorded by the learned Magistrate in Ex.P.19, thus it is contended that the Court below erred in convicting and sentencing the appellant. Pointing out the inconsistencies in the statements of the deceased, she submitted that deceased gave different versions in her statements recorded under Section 161 of Cr.P.C and the dying declaration recorded by the learned Magistrate inasmuch as in the dying declaration she stated that she do sanitary napkin business and in the statements recorded under Section 161 of Cr.P.C she stated she is doing crackers manufacturing work and earning money. It is thus contended that there is no evidence directly connecting the accused with the offence and the conviction and sentence imposed by the Court below based on the circumstantial evidence and inconsistent statements given by deceased is not justified. It is thus prayed that the appellant may be acquitted of the charges. In support of her contentions, she placed reliance on a judgment of Supreme Court in Gopal Vs.State of Madhya Pradesh[1] wherein, while dealing with a case where accused 1 and 2 alleged to have poured kerosene on deceased and set her ablaze resulting in her death, considering the discrepancies even as regards the manner in which alleged incident had occurred, the Apex Court, held as under; “It is to be noted that the High Court had itself observed that the dying declaration Ex.P.11) scribed by the Executive Officer (sic Magistrate( (PW6) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Ex.P-3) scribed by ASI Balram (PW8) as different motives have been described. That is not the only variation. Several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire. Therefore, the discrepancies make the last declaration doubtful. The nature of the inconsistencies is such that they are certainly material. That being so, it would be unsafe to convict the appellant. The conviction is set aside and the appellant is acquitted of the charges. He be set at liberty forthwith unless required to be in custody in connection with any other case.” She further drawn our attention to the judgment of the Supreme Court in Amol Singh Vs. State of M.P. [2] wherein the Apex Court while considering the evidentiary value of multiple dying declarations held that discrepancies in the last dying declaration making it doubtful and it would not be safe to convict the appellant. The relevant portion reads as under; “Therefore, the discrepancies make the last declaration doubtful. The nature of the inconsistencies is such that they are certainly material. That being so, it would be unsafe to convict the appellant. The conviction is set aside and the appellant is acquitted of the charges. He be set at liberty forthwith unless required to be in custody in connection with any other case.” On the other hand, learned Public Prosecutor while supporting the conviction and sentence imposed by the Court below, submitted that in the present case the deceased in clear terms has narrated the incident and involvement of the accused in all the three statements she has given on the same day and the so called inconsistencies raised by the learned counsel for appellant are not material and relate only to her occupation, which is not material. He further submitted that the statement made by the deceased is consistent throughout inasmuch as in all the three statements she has stated that the accused poured acid on her body and hit her with a stone with an intention to kill her and there is no scope for anyone else than the accused to be present at the scene of offence in the late night. It is further submitted that it is now well settled that if a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. He has further submitted that the judgments relied upon by the learned counsel for appellant herein are of no benefit to the appellant inasmuch as in the said cases there were inconsistencies as regard the manner in which the incident took place. P.W.1 and 2 who are parents of the deceased stated that after receiving the information about the incident, they rushed to Osmania General Hospital and found that deceased sustained burn injuries. According to them, deceased did not reveal anything to them at the hospital and after one month Masrath Begum died while undergoing treatment. P.W.3, who is neighbor and an eye witness in her evidence stated that on the intervening night of 6/7.5.2005 she heard cries of deceased from her house and rushed there along with her father and knocked the door and found the door locked from inside and deceased with great difficulty came and opened the door and she found burn injuries on the body of deceased and clothes of deceased were also burnt. She further stated that on enquiry deceased told her that some one has poured acid on her and ran away from her house through another door way and that they have informed about the incident to P.W.2 and shifted the deceased to Osmania General Hospital for treatment. That police examined her on the next day and that she did not stated to police regarding the name of person who poured acid on deceased. She was declared hostile. P.W.4/Mohd.Asif is brother of deceased in his evidence he stated that on 6/7.5.2005 some body poured acid on the deceased due to which she sustained burn injuries and neighbors shifted her to Osmania General Hospital for treatment. That he visited Osmania General Hospital to see the deceased and she did not reveal anything to him as to how incident took place. He was also declared hostile. Since, P.W.1 to P.W.4 did not support the case of the prosecution and turned hostile, thus the prosecution solely relied on the circumstantial evidence and the statements under Section 161 of Cr.P.C. recorded by the Head Constable P.W.8 in Ex.P.16 and P.W.10/ the Sub Inspector of Police under Ex. 20 and the dying declaration recorded by P.W.9/ the learned XI Metropolitan Magistrate , Secunderabad in Ex. 19 to prove the guilt of the accused. Now the point for consideration before this Court is ‘whether there are any inconsistencies found in the statements recorded by the deceased-Smt Masrat Begum which makes the statement doubtful ? Admittedly, there are three statements of deceased Masarat Begum which were recorded on 7.5.2005, i.e., Ex.P-16 statement recorded by the Head Constable (P.W.8) at 5.45 a.m, Ex.P.19 dying declaration recorded by learned XI Metropolitan Magistrate (P.W.9) and Ex.P.20 the statement recorded by the Sub Inspector of Police (P.W.10). For the sake of convenience, the relevant portions of the above three statements are reproduced hereunder; Exhibit P.16 statement recorded by P.W.8 “ Two years back, my marriage was performed with Mohd.Osman who is an auto driver and we setup a separate family. I am residing in the above address for the past 2 years. My husband is not doing any work. I earned money by preparing crackers for my livelihood. I met with an accident and my right leg was broken. Till yesterday i.e., 6.5.2005 we resided in our previous house. In the evening of my husband given me Thumsup. After consuming Thumpsum I got intoxicated and fell asleep. At about 1 a.m., while I was sleeping my husband poured acid on me. Due to burning I made hue and cry. My husband threatened that he will kill me and hit me with stone on my head and I started bleeding. Hearing my hue and cry my house owner saved me. Again my husband threatned me that he will kill me and sped away. Due to pouring of acid I sustained burn injuries on my face, chest and some other parts of the body. My husband poured acid on me with an intention to kill me. As such I request you to take appropriate action. The above statement was read over to me and I found it to be correct and I signed in it……” Relevant portion of Ex.P.19 dying declaration recorded by learned XI Metropolitan Magistrate, SEcunderabad (P.W.9) “…….. …….. Q.No. 7 : What happened to you and how the same happened. Ans : Yesterday night at about 12.00 clock midnight my second husband Osman who was with me and he has his first wife and children also. I was married to him after my first husband died. I do Sanitary Nappin business and saved some money. He took away the same. When I questioned him last night as to what he did with the money then he came and poured something which I first thought was hot water but the same was Acid. Due to pouring of the said Acid on me my face, head legs, chest and other parts got burnt. Q.No.8.: Is there any foul Act/Omission of any one or do you blame any one for this to you. Ans: Yes my husband Osman did this to be poured Acid on me. He also beat me on the head with a stone I blame this on him. He is responsible for this. Q.No.9 ; Who were there in the house when this happened ? Ans : No one was there except my husband who was there in the house. Q No.10 ; What you did then? Ans : I shouted and came out of my house and then my mother came. My husband ran away after doing this to me. Q.No.11 : Anything you want to say ? Ans : No that is all I want to say. Take action against the said Osman…..” Ex. P.20 statement recorded by the Sub Inspector of Police (P.W.10). “I am the above said resident and my father is retired constable. About two years back, my marriage was performed with Mohd Osman an auto driver and since one month we both living in the above mentioned address. Since last two years my husband has not been doing any work and I alone doing crackers manufacturing work and earning money and living on the said earnings. One month back I have met with an accident resulting in which my right leg was fractured. On 6.5.2005 in the evening my husband brought thumps up and made me to drink thumps up. After drinking thumps up I felt drowsiness and slept. While I was in deep sleep around 0100 hours (midnight) my husband poured acid on me with an intention to kill me. Due to burning sensation I woke up and started making loud hue and cry. Then my husband hit me with a stone on my head saying that he will kill me, resulting in which I have sustained bleeding injury. When I have opened the door by making loud shouting, my house owner’s daughter Smt Nasreenunnisa came and rescued me. On enquiry I told to her about the acid attack by husband and beat me with stone with an intention to kill me. My house owner and others rescued me and shifted me to OGH for treatment. Due to attack by my husband Mohd.Osman with acid and big stone, I have received burns on my face, chest and other parts of the body and other injuries. After attack on me my husband ran away. I have disclosed the same facts before the police for taking action against my husband Osman.” It is to be noted that, in the dying declaration Ex.P.19 in clear terms she stated that her husband poured acid on her, beat her on the head with a stone and he is responsible for the incident and that no one was there except her husband in the house i.e., scene of offence. In Ex.P16 statement recorded by Head Constable, she stated that her husband poured acid on her with an intention to kill her and she has repeated her statement in Ex.P.20 recorded by Sub Inspector of Police and stated that around 0100 hours her husband poured acid on her with an intention to kill her, due to burning sensation she woke up and then her husband hit her with a stone. It is thus clear that the deceased is consistent all through as regards involvement of the accused and in clear terms stated the