IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE 11th DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.1126 OF 2007 Between: Shaik Imam Basha … Appellant And State of Andhra Pradesh, represented 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 B.CHANDRA KUMAR CRIMINAL APPEAL No.1126 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Redddy) The appellant/sole accused filed this criminal appeal questioning the conviction and sentence recorded against him by the Principal Sessions Judge, Kadapa, vide judgment dated 01.08.2007, whereby he was convicted for the offences punishable under Sections 302 and 498A of the Indian Penal Code, 1860 (for brief, “IPC”) and was sentenced to undergo imprisonment for life and also to pay a fine of Rs.100/- in default to suffer simple imprisonment for one week, only for the offence punishable under Section 302 IPC. 2. The gravemen of the charge against the accused is that on 06.10.2006, while Gunukula Subbulu, the deceased was at her house bearing D.No.2/281, Balaji Nagar, Kadapa, the accused subjected her to cruel treatment, harassment and illegal demands; that on 06.10.2006 at about 03:30 PM, the accused caused the death of the deceased Subbulu by pouring kerosene over her and setting fire to her with the help of a matchstick and thereby committed the offence. 3. The prosecution story as unfolded during the course of trial is briefly stated as under:- One Gunukula Subbulu (hereinafter referred to as “the deceased”), aged about 32 years, was married to one Ramudu about 15 years back and was blessed with two daughters and two sons. As the deceased got acquaintance with the accused, her husband Ramudu deserted her and went away to an unknown place about 10 years back. Thereafter the accused, who developed intimacy with the deceased, used to look after the welfare of the deceased and her children. Later the accused addicted to bad vices and started harassing the deceased by suspecting her stating that she was having illicit intimacy with one Siva, who is their neighbour. The accused used to demand amount to meet his needs and whenever the deceased expressed her inability in paying the amount, the accused used to beat her, abuse her in filthy language and thereby caused mental agony to her. Due to the force of the accused, the deceased sold away the house of her mother after demise of her mother and the amount was spent by the accused for his vices. After Dasara festival, the accused again asked the deceased to give amount to attend his needs, but when the deceased expressed her inability, the accused sold away the T.V. and used the amount for his needs. While so, on 06.10.2006 afternoon the accused came to the house of the deceased in intoxication mood, picked up quarrel with the deceased, demanded her to sell her house which stands in the name of the deceased, but the deceased refused to sell the house for which the accused got wild against her and went away. At about 03:30 PM, the accused again came to the house of the deceased, poured kerosene with the bottle and litted her with a matchstick. Due to the burns, as the flames engulfed, she came out of the house crying, and the neighbours gathered there and put off the flames and chastisised the accused and advised him to shift the deceased to the Government Hospital. While shifting the deceased to the Government Hospital, the accused threatened the deceased and P.Ws.2 and 3 with dire consequences and demanded to reveal that the incident took place due to blast of stove in the house. The accused admitted the deceased in the Government hospital. On receipt of the hospital intimation, P.W.9-the Constable, who is posted at outpost police station, Kadapa, visited the hospital at 06:00 PM and recorded the statement of the deceased under Ex.P7. P.W.6-the Magistrate, visited the hospital and recorded the dying declaration of the deceased under Ex.P5. After the Magistrate recorded the dying declaration under Ex.P5, P.W.9 went to the deceased and read over the contents of the statement recorded earlier and secured her signature on Ex.P7 statement and transmitted the same to the Taluk police station on the point of jurisdiction. On receipt of Exs.P5 and P7, P.W.10 registered a case in crime No.195 of 2006 under Sections 324, 307 and 506 IPC and took up investigation. During the course of investigation, P.W.10 visited the hospital; recorded the statement of the deceased under Ex.P9; examined the material witnesses; visited the scene of offence at the house; seized the material objects; got prepared Ex.P1-panchanama. While undergoing treatment, the deceased succumbed to death at the hospital. On receipt of the death intimation under Ex.P11, P.W.11 altered the section of law and issued Ex.P12 altered F.I.R and took up further investigation. During the course of investigation, P.W.11 visited the Government hospital on 30.10.2006; held inquest over the dead body of the deceased in the presence of P.Ws.4 and 8; prepared Ex.P2 inquest report; referred the dead body to the post mortem examination; arrested the accused; after receiving all the reports and after completion of investigation, he laid the charge sheet. 4. On committal, the learned Sessions Judge, framed charges under Sections 498A and 302 IPC and when the same were read over to the accused in Telugu, he denied the same and claimed to be tried. 5. In order to substantiate its case, the prosecution got examined P.Ws.1 to 11 and marked Exs.P1 to P12, besides the case properties M.Os.1 & 2. 6. After the prosecution evidence is closed, the accused was examined under Section 313 Cr.P.C., for which he denied the incriminating evidence put to him. 7. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charges framed against him and sentenced him to suffer imprisonment for life for the offence under Section 302 IPC and also to pay a fine of Rs.100/- in default to suffer simple imprisonment for a period of one week. Since the offence under Section 498A IPC is lesser offence and for the offence under Section 302 IPC, the sentence to be awarded is not less than imprisonment for life, no separate sentence was awarded for the offence under Section 498A IPC. 8. The accused was provided legal aid by the Legal Services Authority in preferring this appeal. Learned counsel for the appellant contends that under Ex.P5-dying declaration recorded by the Magistrate, the deceased stated that due to the flames she woke up and went outside and, therefore, there is no possibility of her witnessing the accused pouring kerosene and litting fire to her. When P.W.6-the Magistrate visited the hospital at 06.20 PM and recorded the dying declaration of the deceased from 06.20 to 06.45 PM, there is no possibility of P.W.9-Constable recording the statement of the deceased from 06:00 PM to 06:45 PM as mentioned under Ex.P7. It was further contended that the house of P.W.1 is situated at D.No.2/182, whereas the house of the deceased is situated at D.No.2/181 and, therefore, P.W.1 is not the immediate neighbour of the deceased and her evidence cannot be taken into consideration to prove the guilt of the accused. P.W.2 admitted that she along with her sister were inside and watching T.V.Programme and, therefore, she has not stated about the accused pouring kerosene and litting fire to the deceased. In the absence of any eyewitnesses to the incident and when the accused himself took the deceased to the hospital and admitted her in the hospital, he cannot be charged for the offence punishable under Section 302 IPC. The deceased stated that a kerosene tin was in the house, but during the course of investigation, P.W.10 found only a plastic kerosene bottle inside the house and no such tin was found as stated by the deceased and, therefore, the entire story of the accused pouring kerosene on the deceased was at the instance of P.W.9, who tutured the deceased when he examined her and the said dying declaration cannot be taken into consideration for convicting the accused. He further contends that the accused cannot be charged for the offence under Section 498A IPC, as he is neither the legally wedded husband of the deceased nor the relative of the husband of the deceased. 9. Learned Public Prosecutor sustained the conviction and sentence recorded by the learned Sessions Judge stating that both the Dying Declarations under Exs.P5 and P7 are consistent with the accused pouring kerosene and litting fire to the deceased, which is also corroborated with the evidence of P.Ws.1 and 2. Therefore, the conviction and sentence recorded by the Court below, needs no interference. 10. In view of the submissions as referred to above, the point for consideration is whether the prosecution brings home the guilt of the accused beyond reasonable doubt? 11. The evidence adduced by the prosecution clearly establishes that the deceased was married with one Ramudu and was blessed with four children viz., two sons and two daughters. Later, her husband, Ramudu deserted her as she got acquaintance with the accused. On the date of the incident, her sons are not living with her and one of her sons i.e., Hari Prasad was in Juvenile Home. The accused was living with the deceased. P.W.2 and another daughter Gayatri used to reside in Balaji Nagar. The house in which they reside belongs to the deceased. the deceased got another house from her grandmother, which was sold away and the said amount was spent by the accused for his vices and he always used to quarrel with the deceased demanding the money and also demanded to sell the house which stands in her name. 12. The evidence of P.W.1, who is a material witness to the case of the prosecution, is that on the date of the incident, at 03:00 or 03:30 PM when P.W.1 was at her house, the deceased came out of the house crying and was in flames and the accused followed her from the inside of the house. She further deposed that P.W.2 and Gayatri also came out of the house raising cries and on hearing their cries, herself and some others put off the flames by pouring water. When P.W.1 enquired with the deceased, she pointed out to her husband and said that he himself did the same. She admonished the accused and asked him to shift the deceased to the hospital. Thereby, he brought an auto and shifted the deceased to the hospital. P.W.2, one of the daughters of the deceased, deposed that on the date of the incident, at about 03:00 PM, the accused burnt her mother, by pouring kerosene over her; that he himself shifted her mother to the hospital by an auto; herself and her sister were in that auto and went to the hospital. She further deposed that on the way to the hospital, the accused threatened the deceased that if she reveals that he burnt her, he would kill P.W.2 and her sister also. 13. P.W.5, the doctor deposed about conducting of post mortem examination over the dead body of the deceased on 30.10.2006 at 01:45 PM and issuing of Ex.P3 post mortem certificate opining that the cause of death of the deceased appears to be due to Hypovolenic shock. 14. P.W.6-the Magistrate, deposed that on receipt of Ex.P4 requisition from District Hospital, Kadapa he recoded the dying declaration of the deceased under Ex.P5. P.W.9-the Constable, deposed that on receipt of the hospital intimation, he recorded the dying declaration of the deceased under Ex.P7 at about 06:15 PM, but he cold not read over the contents of the said statement to the deceased as by the time of his completing the recording the statement of the deceased, the Magistrate has come there to record the dying declaration of the deceased and, therefore, he was sent out of the hospital at that time. The Magistrate has left the said place at about 06:45 PM. Thereafter, he went to the deceased, read over the contents of the statement recorded by him and after she accepted that the same is correct, he secured her signature on it. 15. P.W.10-Sub-Inspector of Police, Kadapa deposed about registering of F.I.R.; recording the statement of the deceased under Ex.P9; examination of witnesses; seizure of material objects; preparation of rough sketch; alteration of F.I.R. In the cross- examination, P.W.10 deposed that his investigation reveals that P.W.2 and her sister visited their house during Dasara vacation and were staying with their mother as on the date of incident. P.W.11-Cirlce Inspector of Police deposed about conducting inquest over the dead body of the deceased; examination of some of the witnesses; sending the dead body for postmortem examination and filing of charge sheet. 16. From the evidence adduced by the prosecution, it is clear that the entire case of the prosecution rests upon the two dying declarations recorded by P.Ws.6 and 9 under Exs.P5 and P7. 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 Lyre LCR in R. v. Wood Cock (1789) I-Leach 500).” The Apex Court in Paniben v. State of Gujarat[1] 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).” 13. In the light of the above principles, the acceptability of the alleged dying declarations in the instant case has to be considered. The dying declarations are only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis for conviction, even if there is no corroboration. 14. Keeping in view of the above principles, we have to scrutinize the two dying declarations under Exs.P5 and P7 recorded by P.Ws.6 and 9 respectively, as to whether they inspire the confidence of the Court to convict the accused. 15. Both the dying declarations recorded by the Magistrate-P.W.6 and the Constable-P.W.9 under Exs.P5 and P7 repectively, clearly establishes that the deceased stated that after her husband-Ramudu left her about 10 years back, she is living with one Imam Basha, the accused, as a wife; that she earlier worked as a maid servant; and that the accused used to suspect her and abuse her as a bitch and for even small issues he used to quarrel with her, but she adjusted for the sake of her children for all the days. Under Ex.P5 dying declaration recorded by P.W.5-the Magistrate, the deceased stated that on the date of the alleged incident at 03:30 PM, she came to the house and served the meals to the accused and as the chatni was not good, he scolded her and asked her to die; that thereafter she took head bath and slept; that her two daughters also there along with her in the house; that while she was sleeping, her husband poured kerosene on her and set fire; that due to flames she woke up and went outside the house by raising cries; that the neighours poured water on her and saved her life; that after the incident the accused took her to the hospital and on the way he insisted her that she has to say that due to break of the stove she sustained burn injuries, for which she accepted and she escaped from the clutches of the accused and stated that she sustained burn injuries due to her husband Imam Basha, who poured kerosene on her and set fire while she was sleeping. 16. Under Ex.P7-dying declaration recorded by P.W.9 the deceased stated that on 06.10.2006 afternoon the accused came to the house after consuming the liquor and made galata with her to sell the house, for which she refused for the same as she got children; that then the accused abused her and beat her; that in the afternoon at 03:30 PM, the accused threatened her stating that if she will not sell the house, he will see her end and went away; that then she slept on the floor and sometime thereafter again the accused came to the house took a kerosene oil bottle, which is in the house, poured on her and set fire with a matchstick; that her body became flames and due to fear she came out of the house by raising cries; that the neighbours came and poured water on her and put off the falmes; that the accused simply seeing her with flames and did not try to put off the flames on her body. The accused with an intention to kill her poured kerosene on her and set fire to her. 17. In both the dying declarations under Exs.P5 and P7, there is no inconsistency with regard to the accused pouring kerosene, setting fire, putting off the flames on the deceased by the neighbours by pouring water. Nothing was elicited in the cross-examination of P.W.9 to discredit his evidence about his recording the statement under Ex.P7, which explains that he reached the hospital at the earliest point of time; that after recording the statement of the deceased as the Magistrate came for recording the statement of the deceased, he went out of the said place and after the Magistrate left, he returned to that place and read over the contents of the statement of the deceased and obtained her signature under Ex.P7. The evidence of P.W.6, the Magistrate, also discloses that on receipt of the intimation under Ex.P4 at 06:00 PM, he reached the hospital at 06:20 PM; that the duty Doctor certified that the patient is conscious and coherent for recording her statement; that he also satisfied that the deceased was sound and conscious to give dying declaration; that he recorded the dying declaration of the deceased, where the deceased stated that the accused poured kerosene on her while she was sleeping and due to him alone, she received the burn injuries; and that the accused asked her not to state that he caused the burns to her and that he asked her to state that due to the burst of stove she sustained the burn injuries. 18. After going through the entire evidence and the reasoning given by the learned Sessions Judge, we are in agreement with the conclusion recorded by the learned Sessions Judge for the offence punishable under Section 302 IPC, that it is the accused who poured kerosene and set fire to the deceased and due to which the deceased sustained burn injuries and due to the said injuries only, she died later in the hospital. The prosecution is able to bring home the guilt of the accused beyond reasonable doubt for the offence under Section 302 IPC. No evidence has been let in by the prosecution that the accused is the legally wedded husband and harassed the deceased with cruelty, to convict the accused for the offence under Section 498A PC. Admittedly, the evidence adduced by the prosecution discloses that after the deceased husband left her, she was living with the accused and the earlier marriage with Ramudu has not been dissolved. Therefore, the accused cannot be treated as her husband to convict him for the offence under Section 498A