THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Appeal No.679 of 2007 Date: .12.2010 Between: State of A.P. rep.by the Public Prosecutor, High Court of A.P., Hyderabad .. Appellant/ Petitioner AND Vavilla @ Vidavaluru Saraswathi, w/o. Balaramaiah, Age: 34 years, r/o.Indiranagar, PdalakurRoad, Nellore, and another .. Accused/ Respondents THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR CrL.Appeal No.679 of 2007 JUDGMENT (per Hon’ble Sri Justice K.G. Shankar): When Modi Chenna Rayudu (the deceased, for short) died on 16.05.1998, police laid charge sheet against two accused alleging that they were responsible for the homicidal death of the deceased. The learned I Additional Sessions Judge, Nellore, through the impugned judgment, found both the accused not guilty and acquitted them. Aggrieved by the same, the State preferred the present appeal. 2. The first accused was described to be 34 years only. She is lady with four children. She has been residing with her husband. It is not clear as to the calling of the husband of the first accused. 3. The deceased is the brother of PW.4. PW.5 is the husband of PW.4. The deceased worked for a short time as an attender in Pinakini Grameena Bank. By the date of his death, he however was unemployed. He used to reside with his sister PW.4 and with the husband of the sister, PW.5. 4. The deceased unfortunately developed illicit intimacy with the first accused. In fact, PW.5, brother-in-law of the deceased cautioned the deceased to avoid the illicit relationship with the first accused. About four months prior to May, 1998, the first accused started illicit relationship with the second accused and started ignoring the deceased. When the deceased questioned the attitude and the conduct of the first accused, the first accused carelessly brushed aside the feelings of the deceased. This is the general background of the case. 5. The prosecution contends that on 15.05.1998 the second accused went to the house of PW.5 in search of the first accused. The second accused was accompanied by a few of his supporters. Neither PW.5 nor the deceased was present at the house of PW.5 at the time of the visit of the second accused to the house of PW.5. When PW.4, wife of PW.5, who is the elder sister of the deceased, asked the second accused as to why he visited the house of PW.5, the second accused told PW.4 that the deceased misbehaved with his sister. PW.4 further stated that the second accused declared at that time that the deceased would be done to death by the next day. 6. It is the further case of the prosecution that on the morning of the next day, the deceased was taken into the house of the first accused by the second accused and that while the second accused caught hold of the deceased, the first accused poured kerosene over the deceased and set him ablaze. It is further claimed by the prosecution that PW.4, sister of the deceased, later went to the rescue of the deceased and admitted the deceased in the Government Hospital, Nellore, where the deceased breathed his last. The prosecution thus claimed that both the accused were guilty of murdering the deceased. 7. There was a solitary charge under Section 302 of I.P.C. As many as 17 witnesses were examined by the prosecution. The prosecution marked Exs.P.1 to P.15, apart from MOs.1 to 6. On the defence side, Exs.D.1 to D.9 were marked. On an appraisal of the entire case, the learned Sessions Judge found that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt and acquitted both the accused. 8. The basic point for consideration is whether the prosecution has brought home the guilt of the accused beyond reasonable doubt for the death of the deceased. 9. The learned Public Prosecutor contended that the evidence of PW.4 is crucial and that if the Court believes the evidence of PW.4, the accused would be liable to be convicted and that if the evidence of PW.4 is disbelieved, the entire case of the prosecution would collapse. That apart, the learned Public Prosecutor contended that the deceased made several dying declarations implicating the accused and that in view of dying declarations, the case against the accused is established beyond reasonable doubt. 10. The deceased allegedly told his sister that while the second accused held the hands of the deceased, the first accused poured kerosene over the deceased and set him ablaze. PW.5 claimed that the deceased orally told him that while the second accused caught hold of the deceased, the first accused poured kerosene over the deceased and set him on fire. 11. PW.13, a Judicial Magistrate of First Class recorded the dying declaration of the deceased under Ex.P.6 on receipt of requisition under Ex.P.5 from the hospital to record the dying declaration of the deceased. Ex.P.6 shows that the recording of the dying declaration commenced at 6.45 a.m. on 16.05.1998 and concluded at 7.15 a.m. on the same day. Ex.P.6 bears the right thumb impression of the deceased. It was recorded that the left hand was burnt (which perhaps shows the reason why the right thumb impression of the deceased was obtained on Ex.P.6). It was also endorsed by the Deputy Medical Officer of the hospital that the deceased was conscious at the time of recording of the dying declaration under Ex.P.6. In Ex.P.6, the deceased claimed that he had illicit intimacy with the first accused since about two years prior to the date of the dying declaration, that in the recent past (to the date of dying declaration), the first accused developed illicit intimacy with the second accused, that the deceased came to know about the same about 10 days prior to 16.05.1998, that on 16.05.1998, at 5 a.m. the second accused took the deceased to the house of the first accused and that while the second accused caught hold of his hands, the first accused poured kerosene upon the deceased and threw a match stick on him. Thus, in the dying declaration recorded by the Judicial Magistrate of First Class, the deceased implicated both the accused. 12. PW.15, head constable at Nellore at the relevant time received hospital intimation under Ex.P.9 at about 5.30 a.m. on 16.05.1998 about the admission of the deceased in the hospital. He examined the deceased and recorded his statement under Ex.P.10. Ex.P.10 in fact was later registered as First Information Report. Ex.P.10 more or less is the other dying declaration of the deceased. 13. Ex.P.10 contains endorsement by PW.15 that he recorded the statement at 6.30 a.m. on 16.05.1998. The Deputy Medical Officer of the hospital endorsed at 7.30 a.m. that the deceased was conscious. In Ex.P.10, the deceased claimed that the first accused was his kept mistress since about two years, that on 16.05.1998, the deceased went to the house of the first accused as she sent a word to him through the second accused and that while the second accused caught hold of him, the first accused poured kerosene over the deceased and set fire to him through a match stick. 14. Apart from the contradictions in the dying declarations under Exs.P.6 and P.10 and alleged statement to PWs.4 and 5, a fundamental question has arisen regarding the very dying declarations. Under Exs.P.6 and P.10, the Doctor endorsed that the deceased was conscious at the time of recording of the dying declarations. 15. The learned counsel for the accused contended that it would not be safe if it is recorded that the declarant of the dying declaration is conscious and that it must further be recorded that the deponent was in a fit state of mind to make a statement. In KANCHY KOMURAMMA v. STATE OF ANDHRA PRADESH [1] a two-judge Bench of the Supreme Court pointed out that the Judicial Magistrate of First Class, who records the dying declaration must record his satisfaction that the deponent was in a fit condition to depose and that the Magistrate also should obtain the opinion of the Doctor about the fitness of the deponent to make the statement. In PAPARAMBAKA ROSAMMA AND OTHERS v. STATE OF A.P.[2] a three-judge bench observed that when dying declaration is recorded, the Doctor must not only certify that the deponent was conscious but must further certify that the declarant was in a fit state of mind before recording the dying declaration. 16. In LAXMAN v. STATE OF MAHARASHTRA[3] a five-judge Bench of the Supreme Court had an occasion to consider about the essentials of the dying declarations. The Supreme Court observed as follows: “…. What is essentially required is that the person, who records the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination of the Doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthfulness. A certification by the Doctor is essentially a rule of caution and therefore the voluntary and truthfulness nature of the declaration can be established otherwise.” We agree with the contention of the learned Public Prosecutor that this decision of the Supreme Court is the law as on today not only as it is a decision by the largest number of judges of the three cases referred to, but also as it is the latest of the three decisions referred to. In view of Laxman’s case, it is not necessary for the Doctor to specifically record that the deceased was in a fit state of mind to make a statement at the time of recording of the statements under Exs.P.6 and P.10. So far as Ex.P.6 is concerned, the subjective satisfaction of PW.13 that the deceased was in a fit state of mind to make a statement was more than sufficient. We therefore reject the contention of the learned counsel for the accused that the dying declarations under Ex.P.6 and P.10 are liable to be rejected on the ground that there was no certification that the deceased was in a fit state of mind to make the statement. 17. The question therefore is whether the prosecution has proved the guilt of the accused. It may be recalled that the case of the prosecution is that the deceased has illicit intimacy with the first accused, that later the first accused developed intimacy with second accused and started ignoring the deceased and that the deceased had developed restlessness on account of the conduct of the first accused. If this contention is true, there was no motive for the accused to murder the deceased. If there is anybody who has motive, it must be the deceased and not other way around. There is no whisper in the evidence of the prosecution witnesses that the deceased was raising hue and cry and was creating hurdles for the smooth relationship between the first and second accused. It merely is the case of the prosecution that the first accused started ignoring the deceased after she developed illicit intimacy with the second accused. Therefore, there is no motive for the accused to murder the deceased. 18. We are conscious that it is not necessary for the prosecution to establish motive so long as the prosecution proved that the accused murdered the deceased through direct evidence. However, it may be pointed out that the available evidence is shaky regarding the establishment of the case of the prosecution. We may refer the dying declaration under Ex.P.10. In Ex.P.10 there is no motive at all. It was not even stated by the deceased in Ex.P.10 that the first accused developed intimacy with the second accused and ignored the deceased. If Ex.P.10 is looked at independently it would be a curiosity why the first accused decided to murder the deceased and why the second accused helped the first accused in murdering the deceased. The dying declaration under Ex.P.10 is not in tune with the case of the prosecution at all. Whereas Ex.P.6 dying declaration attributes a motive to the accused to kill the deceased, Ex.P.10 suggested no motive for the conduct of the accused. Therefore, we are afraid that the dying declarations cannot establish the guilt of the accused. 19. PWs.4 and 5 spoke in terms of the prosecution case about the motive. However, PW.1, who is a neighbour of the house of PWs.4 and 5 deposed that the first accused and deceased quarrelled, that he heard the deceased declaring that he would die (by way of committing suicide) and that PW.1 heard at about 6.30 a.m. on 16.05.1998 that the deceased committed suicide. 20. PW.2 who runs a tea stall in front of the house of the first accused claimed that after the first accused went away towards the eastern side of the tea stall of PW.2, the deceased entered the house of the accused and that later the deceased raised alaram when he caught fire. In other words, it is the evidence of PW.2 that the first accused was not in her house when the deceased caught fire. The evidence of PWs.1 and 2 thus is that perhaps the deceased committed suicide. The presence of either the first accused or the second accused in the house of the first accused when the deceased caught fire is ruled out by the evidence of PW.2. 21. PWs.4 and 5 were not the eye witnesses for the incident proper. PW.4 rushed to the house of the first accused after she was informed by PW.2 that PW.2 heard the alaram of the deceased. Thus there was no eye witness count for the commission of the offence by the two accused. 22. Where there is no direct eye witness count, motive certainly plays a dominant role in establishing the case of the prosecution. As already observed by us, the prosecution failed to establish the motive. Added to it, the dying declaration recorded by PW.15 under Ex.P.10 contradicts the dying declaration under Ex.P.6 recorded by PW.13. Merely because Ex.P.6 contains the story, which is mentioned by PWs.4 and 5, as the story narrated by the deceased to them, it is not safe to hold that the prosecution established the guilt of the accused, much less beyond reasonable doubt. 23. In the light of the glaring contradictions and omissions in Ex.P.10 vis-à-vis the prosecution case and in view of the evidence of PWs.1 and 2, we wholly agree with the finding of the trial Judge that the prosecution failed to make out the case, at any rate, beyond reasonable doubt. Consequently, it is not a fit case where the finding of the trial Court can be interfered with. We therefore confirm the acquittal recorded by the trial Judge against the two accused. 24. The appeal consequently is found to be devoid of merits and is accordingly dismissed. ________________ V. ESWARAIAH, J ________________ K.G. SHANKAR, J Date: .12.2010 Isn [1] 1995–SCC-Supp4-118 [2] (1999) 7 SCC 695 [3] 2002 (2) ALD (Crl.) 505 (SC)