HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.242 OF 2007 Dated:02-07-2010 BETWEEN: Jaru Ramesh @ Dadi …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., 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.242 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This is an appeal by the sole accused challenging the judgment of Sessions Judge, Mahila Court, Vijayawada, dated 01.02.2007, whereby he was convicted for the offence under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for a period of two months. 2. The case of the prosecution as narrated during the course of trial, in brief, is as under: Konuru Tirumala (hereinafter referred to as ‘the deceased’) and the accused-appellant were residing in the adjacent portions of the house in the ground-floor belonging to P.W.6. The marriage of the deceased was solemnized about 14 years ago with P.W.1 and they got one daughter-P.W.2 and one son. P.W.1 is a rickshaw puller. The wife of the accused went to her maternal house for delivery about 6 months back and in that period, illicit intimacy was developed between the deceased and the accused. The neighbour of the deceased by name, Rangala Bangaramma is having a sister by name Satyavathi. Said Satyavathi came from her village two days prior to 5.1.2004 and the deceased noticed that the accused was having illicit intimacy with Satyavathi. Earlier, Satyavathi took Rs.100/- from the accused towards traveling expenses and on 5.1.2004 morning at about 7.00 hours, Satyavathi left for her village and while going, she gave Rs.100/- to the accused and having noticed that, at about 9.30 hours, the deceased went into the house of the accused and questioned him about his affair with said Satyavathi. There ensued certain quarrel between the accused and deceased. The deceased pulled the Rs.100/- note from the accused and both of them quarreled about the Rs.100/- note and the accused poured kerosene from wicks stove on her, lit matchstick and threw on the deceased. The saree of the deceased was gutted on fire and flames engulfed her and the deceased came out by making alarms and then the accused poured water on her and put off flames. The deceased sustained burnt injuries and her skin peeled off and the accused also sustained burnt injuries on some parts of his body. On being informed by the neighbours about the incident, the parents of the deceased and sister (P.Ws.3 to 5) came to the spot and shifted the deceased to the Government General Hospital, Vijayawada. P.W.14-IV Metropolitan Magistrate, Vijayawada recorded the dying declaration of the deceased under Ex.P.20. Later, P.W.13-Head Constable, on intimation from the hospital authorities, visited the hospital, recorded the statement of the deceased under Ex.P.18 and handed over to P.W.11-Sub-Inspector of Police, II Town Police Station, who registered the same as a case in Crime No.2 of 2004 under Ex.P.10 and took up investigation, prepared the observation report-Ex.P.12 in the presence of mediators-P.Ws.7 and 9, draw rough sketch of scene of offence under Ex.P.13 and seized the case properties-M.Os.1 to 6. On 16.1.2004 at about 4.10 p.m., the deceased succumbed to the burn injuries while she was undergoing treatment. On intimation of death, P.W.11 altered the section of law from 307 to 302 I.P.C. and issued Ex.P.16 memo. P.W.12-Inspector of Police held inquest over the dead body of the deceased in the presence of panchayatdars-P.W.8 and others. During the course of inquest, P.W.12 examined P.Ws.1 to 5, recorded their statements and sent the dead body for post-mortem examination. P.W.10-doctor conducted autopsy over the dead body of the deceased and issued Ex.P.9 post-mortem report opining that the death was due to septicemia as a result of burns. The accused was also treated by P.W.15 and Ex.P.21-wound certificate was issued. After completion of investigation, P.W.12 laid the charge sheet against the accused for the offence under Section 302 I.P.C. On committal, the learned Sessions Judge framed a charge under Section 302 I.P.C., read over the same to the accused in Telugu, and the accused denied the same and claimed to be tried. 3. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 15 and proved 21 documents under Exs.P.1 to P.21 and exhibited the case properties-M.Os.1 to 6. The accused was examined under Section 313 Cr.P.C. on the incriminating evidence appearing in the prosecution witnesses. He denied the same, but not led any evidence. 4. The learned Sessions Judge upon consideration of evidence on record found the accused guilty for the offence punishable under Section 302 I.P.C. and accordingly convicted and sentenced him to undergo imprisonment as aforementioned. 5. Sri T.M.K.Chaitanya, learned counsel appearing for the appellant-accused contended that when the post-mortem certificate-Ex.P.9 issued by P.W.10-doctor discloses that the deceased received 95% of burns, P.W.14-the Magistrate who alleged to have obtained the thumb marks of the deceased on the dying declaration-Ex.P.20 has not explained as to how such thumb marks appear on the dying declaration. When the deceased received 95% of burns, her mental condition would not be in a position to make a declaration as the deceased was in sedated condition, which has not been properly explained by P.W.14-Magistrate and also P.W.11-Head Constable who recorded the statement of the deceased under Ex.P.18. Therefore, he contends that no reliance can be placed upon the said dying declarations of the deceased unless they are corroborated with other evidence. To buttress the said submission, reliance is placed on State of Punjab v. Gian Kaur and another[1], Sadashiv Dhondiram Pandit v. The State of Maharashtra[2], Krishna Chandra v. The State[3], and Kanchy Komuramma v. State of A.P.[4]. The learned counsel alternatively submitted that even as per the case of the prosecution, there was a sudden quarrel for hundred rupee note between the accused and the deceased and that the accused had no intention to kill the deceased, which itself is evident from the fact that immediately after the deceased was caught with fire, he himself poured water on her and extinguished the flames and in the process, he too received the burn injuries. Further the deceased died 11 days after the incident due to septicemia and therefore, according to the counsel, the accused cannot be convicted for the offence under Section 302 I.P.C., but at the most, he can be convicted for the offence under Section 304 Part-II I.P.C. 6. Per contra, learned Public Prosecutor while sustaining the conviction and sentence would contend that both the dying declarations Exs.P.18 and P.20 recorded by P.Ws.11 and 14 are consistent and can safely be relied on and therefore, the impugned judgment needs no interference by this Court. 7. P.Ws.1 to 5, 7 and 9 were declared hostile, as they have not supported the case of the prosecution. P.W.6, who is residing in the same house in the first floor, deposed that on the date of occurrence, at about 10.00 a.m. while he was working in his portion in the first floor, he heard huge cries of the deceased. The deceased was found in flames and the accused poured water on her. When he enquired, the deceased uttered that it was her fate and she poured herself. P.W.10-doctor, who conducted post-mortem examination, deposed that the percentage of burns is 95%, and that the burns are ante-mortem in nature. He deposed that the death of the deceased was due to septicemia as a result of burns and Ex.P.9 is the post-mortem certificate issued by him. P.W.11-Sub-Inspector of Police, who registered the case in Crime No.2 of 2004 and issued Ex.P.10-F.I.R. According to him, he took up investigation, visited the Government General Hospital, Vijayawada, examined the deceased and recorded her statement under Section 161 Cr.P.C., marked as Ex.P.11. He examined P.Ws.4 and 5, visited the scene of offence at about 16.00 hours, observed the scene of offence in the presence of mediators-P.Ws.7 and 9, seized one burnt blouse piece and plastic empty kerosene bottle from the scene of offence. On 7.1.2004 on receipt of intimation from the hospital about the admission of the accused, he proceeded to the hospital, recorded the statement of the accused. On 16.1.2004 on receipt of death intimation, he altered the section of law from 307 to 302 I.P.C. and issued altered memo under Ex.P.16. P.W.12 is the investigating officer who conducted inquest over the dead body of the deceased, prepared inquest report under Ex.P.7, examined P.Ws.1 to 5 and recorded their statements. After completion of investigation, he laid the charge sheet. P.W.13 is the Head Constable. On 5.1.2004, upon receipt of intimation from the hospital under Ex.P.17, he proceeded to the Government General Hospital, Vijayawada, recorded the statement of deceased under Ex.P.18 at 14.00 hours and obtained her thumb impression thereon. P.W.14 is the Magistrate, who recorded the dying declaration of the deceased under Ex.P.20. She deposed that on 5.1.2004 on receipt of requisition from the C.M.O. of Government General Hospital, Vijayawada at 12.30 p.m. under Ex.P.19, she proceeded to the hospital, verified the record and commenced the proceedings at 12.35 p.m. on the same day. She put some preliminary questions to know the state of mind of the deceased to give statement. After satisfying with the answers given by the deceased, she proceeded to record the statement of the deceased. She stated that on 5.1.2004 at 9.30 a.m. the accused poured kerosene and lit matchstick to her. Her polyster saree was caught with fire and none were present in the house. The accused put off the flames by pouring water on her. To a question put to the deceased as to why the accused poured kerosene, she answered that a galata was taken place for Rs.100/- and for that he poured kerosene with an intention to kill her. After recording the statement, she (P.W.14) obtained the left thumb impression of the deceased on the said statement. The duty doctor, who was present at the time of recording the statement of the deceased, also certified that the deceased was conscious and in a fit state of mind during the entire period of giving statement and accordingly endorsed on the statement-Ex.P.20. P.W.15 is the Civil Assistant Surgeon in Government General Hospital, Vijayawada. He deposed that on 5.1.2004 at about 11.00 a.m. he examined the accused and found dermo epidermal burns present over right upper-arm, front of the chest and neck. He opined that the percentage of burns is above 18 to 20% and the said injuries are simple in nature. He issued Ex.P.21 wound certificate. 8. From the above evidence, the prosecution established that the cause of death of the deceased is homicidal death. To prove that the accused caused the death of the deceased, except the two dying declarations under Exs.P.18 and P.20, there is no other evidence available on record. 9. It is well settled law that the dying declaration can be the sole basis for conviction once it is found to be true and voluntary and needs no further corroboration. The principle on which the dying declarations are admitted in evidence is indicated in the legal maxim Nemo moriturus praesumuntur mentiri which means that a man will not meet his Maker with a lie in his mouth.” Truth sits on the lips of dying man as said by Mathew Arnold:- “The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice (See Eyre C.V. in R.V.Woodcock (1789) I-Leach 500).” 10. The Apex Court in Paniben v. State of Gujarat[5] at para 17 observed as under: “17. 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 either 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.” Holding so, the Apex Court summed up the principles governing the dying declarations, as laid down by it in various decisions, and they are 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 said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State, AIR 1988 SC 912). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519).” 11. Keeping in view of the above principles, we have to scrutinize the two dying declarations available under Exs.P.18 and P.20, as to whether they inspire the confidence of the Court to convict the accused. Under Ex.P.20 recorded by P.W.14, the deceased categorically stated that on the date of incident at about 9.30 a.m. the accused poured kerosene and lit fire to her; her saree was caught with fire; none were present in the house except herself and accused; and the accused himself poured water and put off flames. Neighbours called her parents and they took her to the hospital. To a question as to why the accused poured kerosene, she answered that an altercation took place between herself and accused for Rs.100/-. The subsequent statement recorded by P.W.13-Head Constable under Ex.P.18 is consistent with the version in Ex.P.20. In Ex.P.18 the deceased stated that on 5.1.2004 at 9.30 hours she went into the house of accused, questioned him about his illicit intimacy with Satyavathi and both of them quarreled on that issue and she pulled away the hundred rupee note from him. Then the accused poured kerosene from the wicks stove, lit a matchstick and threw it on her. Her saree was caught with fire and she came out by shouting. Then the accused poured water on her and put off the flames. Even in the statement under Section 161 Cr.P.C. recorded by P.W.11, she stated the same facts. Thus, there is no variation about the acts of the accused in pouring kerosene from out of the kerosene wicks stove, litting the matchstick and throwing it on the deceased. Thus both the dying declarations of the deceased recorded by the Magistrate as well as Head Constable, P.Ws.14 and 13 respectively, inspires the confidence of the Court that the declarations are not as a result of tutoring. Further the accused himself received the burn injuries while putting off the flames as can be seen from wound certificate- Ex.P.21. Therefore, it is the accused who poured kerosene and lit the matchstick and set the deceased on flames. In the absence of any suggestion put to the doctor who conducted post-mortem examination that the fingers of the deceased were completely burnt and therefore, obtaining her thumb impressions on Ex.P.20 is not possible, the contention of the learned counsel for the appellant that there is no possibility of deceased putting her thumb impression on the dying declaration cannot be accepted. We accordingly reject the said contention. 12. As per the medical evidence, the deceased did not die directly as a consequence of burns but on account of septicemia resulting from them that too 11 days after the incident. Though the accused poured kerosene on the deceased and lit fire, he made an attempt to put off the flames and in the process he too received injuries, which clearly goes to show that he had no intention to kill the deceased, but he was having the knowledge that such act would cause the death of the deceased. Therefore, in our view, the act of the accused-appellant could not fall under any of the four clauses of Section 300 I.P.C., but would fall within the four corners of clause thirdly to Section 299 I.P.C., the breach of whereof is punishable under Section 304 (ii) I.P.C. Therefore, we are of the view that the accused can be convicted for the offence punishable under Section 304(ii) I.P.C. instead of Section 302 I.P.C. 13. In the result, the appeal is partly allowed. The conviction and sentence recorded against the appellant-accused for the offence under Sections 302 IPC, by Sessions Judge, Mahila Court, Vijayawada, vide judgment, dated 01-02-2007, in Sessions Case No.189 of 2004, are set aside and he is convicted for the offence under Section 304(ii) I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- and in default, to suffer simple imprisonment for two months. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J JULY 02, 2010 Tsr. [1] AIR 1998 SC 2809 [2] 2001 CRI.L.J. 4880 [3] 1996 CRI.L.J. 1507 [4] 1995 Supp (4) SCC 118 [5] AIR 1992 SC 1817