HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.659 OF 2007 DATE: 10.12.2010 Between: Kolluri Eswararao …… Appellant/Accused-1 And: The State Rep. by its Public Prosecutor, High Court of A.P, Hyderabad …..Respondent HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.659 OF 2007 JUDGMENT:(per Honourable Sri Justice Samudrala Govindarajulu) The appellant is the 1st accused/A-1. A-1 was charged in the lower Court for offences punishable under Sections 498-A and 302 I.P.C. A-2 is father of A-1. A-2 was charged for the offence under Section 498-A/34 I.P.C. The lower Court i.e., I Additional Sessions Judge, Krishna at Machilipatnam in Sessions Case No.247 of 2005 by judgment dated 30.04.2007 found A-2 not guilty of the charge under Section 498-A/34 I.P.C and acquitted him. A-1 was also found not guilty of the charge under Section 498-A I.P.C. But, A-1 was found guilty of the charge under Section 302 I.P.C and was convicted and sentenced to life imprisonment for the said offence. The deceased Kolluri Bhavani is no other than wife of A-1. Marriage of the deceased with A-1 was performed about five years prior to death of deceased. The deceased died of shock due to extensive burns on 12.12.2004. The deceased sustained burns on 10.12.2004 at about 20.00 hours in her house at Vakkalagadda village of Challapalli Mandal. Immediately she was taken to Government Head Quarters Hospital, Machilipatnam for treatment. After receiving Ex.P.27 hospital intimation, P.W-15 head constable in the police outpost at that hospital went to the hospital and recorded statement of the deceased as Ex.P-28 at about 12.50 A.M on 11.12.2004. On receiving Ex.P-25 hospital intimation, P.W-14 the Special Judicial Magistrate of the First Class for trial of Prohibition and Excise Cases, Machilipatnam went to that hospital and recorded Ex.P- 26 dying declaration of the deceased at about 01.30 A.M on 11.12.2004. Basing on Ex.P-26 statement of the deceased who was then undergoing treatment in the hospital, P.W-18 Sub Inspector of Police, Challapalli Police Station registered case in Crime No.103/2004 on 11.12.2004 at about 9.00 A.M. under Sections 498-A and 307 I.P.C and issued Ex.P-29 F.I.R. P.W-18 took up investigation initially. He observed scene of offence and prepared Ex.P-32 rough sketch of the scene and got prepared Ex.P-22 scene of offence observation report. During investigation, he also examined witnesses. On receipt of Ex.P-30 death intimation of the deceased from the hospital, P.W-18 altered section of law in Crime No.103/2004 to Sections 302 and 498-A I.P.C and intimated the same to the Magistrate as per Ex.P-31 altered F.I.R. Subsequent investigation was taken up by P.W-16 Inspector of Police, Challapalli Circle who conducted inquest on deadbody of the deceased in the presence of panchayatdars including P.W-11 under the cover of Ex.P-22 inquest report. P.W-12 is the Civil Assistant Surgeon in Government Head Quarters Hospital, Machilipatnam. He conducted autopsy on the deadbody of the deceased on 12.12.2001 and issued Ex.P-24 post mortem examination certificate opining that cause of death was due to shock due to extensive burns. P.W-16 arrested A-1 on 13.12.2004 and arrested A-2 on 01.02.2005 and after completion of investigation filed charge sheet. 2) It is prosecution case that on 10.12.2004 at about 20.00 hours, the deceased asked A-1 to take meals carriage/carrier to her elder sister’s daughter Naga Durga who delivered baby in Bhargavi Nursing Home at Challapalli and that A-1 bluntly refused to do the same and abused the deceased in filthy language and beat her and decided to kill the deceased as she was ready to go to house of her parents. It is specific case of the prosecution that A-1 poured kerosene on the deceased and lit match stick with an intention to kill her and that when flames engulfed the deceased, she raised hue and cry and that the accused went away from the scene and that on hearing cries of both the deceased and another by name Durgarani who witnessed the offence, neighbours came and put off the flames and shifted her to the Government Head Quarters Hospital, Machilipatnam for treatment. 3) For the charges, A-1 pleaded not guilty. He did not take up any other specific plea of defence. During trial in the lower Court, the prosecution examined P.Ws 1 to 18 and marked Exs.P-1 to P-36 and M.Os 1 to 4; and D.W-1 was examined on behalf of the accused. D.W-1 is no other than daughter of the deceased and A-1. She was stated to be aged 7 years on 19.04.2007 when she was examined as D.W-1 in the lower Court. By the date of offence which took place on 10.12.2004, she was aged only 4 years. According to D.W-1, the deceased/her mother poured kerosene on herself and set fire to herself as she was suffering from stomach ache. According to D.W-1, A-1 was not in the house by then and A-1 returned to their house from coolie work after half an hour of shifting the deceased to hospital. 4) None of unofficial witnesses P.Ws 1 to 8 and 10 supported the prosecution totally and they turned hostile to the prosecution. It is contended by the senior counsel appearing for the appellant that there are more than one dying declaration of the deceased in this case and that they are not consistent with each other and that another dying declaration of the deceased recorded by P.W-18 Sub Inspector of Police by way of statement under Section 161(3) Cr.P.C was not produced and was suppressed and that therefore no reliance can be placed on any dying declaration of the deceased. It is further contended that the deceased was suffering from mental illness and that therefore no reliance can be placed on any dying declaration of a person who was not keeping mental balance. On the other hand, the public prosecutor contended that there is absolutely no inconsistency between Exs.P-26 and P-28 dying declarations of the deceased recorded by P.W-14 Magistrate and P.W-15 police head constable respectively on any material aspects of the offence and that there is no suppression of statement of the deceased recorded by P.W-18 Sub Inspector of Police during investigation, as P.W-18 disclosed contents of the said statement of the deceased during his examination. The Public Prosecutor further contended that Exs.P-26A and Ex.P-26B endorsements of P.W-17 duty doctor on Ex.P-26 dying declaration of the deceased recorded by the Magistrate and Ex.P-28A endorsement of the same duty doctor P.W-17 on Ex.P-28 statement of the deceased recorded by P.W-15 police head constable about fit state of mind of the deceased at the time of the giving said dying declaration and statement, negates the defence contention that the deceased was not having proper mental health. 5 ) Dying declaration of the deceased can be the sole basis of conviction. I n Bawa Ram V. State of U.T., Chandigarh[1], the Supreme Court held: “7. It is true that the dying declaration can be the basis of conviction even when the eye-witnesses do not support the prosecution case”. In Amit Kumar V. State of Punjab[2], the Supreme quoted the following principles governing dying declaration laid down in an earlier decision in Paniben V. State of Gujarat[3]: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja V. State of M.P. (1976) 3 SCC 104). (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 (1985 1 SCC 552; Ramawati Devi V. State of Bihar (1983) 1 SCC 211). (iii) This Court has to scrutinize 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. (K.Ramachandra Reddy V. Public Prosecutor (1976) 3 SCC 618). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg V. State of M.P. (1974) 4 SCC 264). (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. (1981 Supp SCC 25). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath V. State of U.P (1981) 2 SCC 654. (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. Krishnamurti Laxmipati Naidu (1980) Supp SCC 455). (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 (1980) Supp SCC 769). (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 eye witness 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 of M.P. (1988) Supp SCC 152). (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 (1989) 3 SCC 390)”. In the case on hand, though Exs.P-26 and P-28 are in the nature of dying declarations containing statements of the deceased relating to the transaction which lead to her death and which dying declarations were authenticated by the deceased by putting her thumb impressions therein, there are three other oral dying declarations of the deceased contained in the evidence of P.W-1, P.W-2 and P.W-18. P.W-1 is father and P.W-2 is mother of the deceased. It has to be seen whether there is corroboration inter se among the above pieces of evidence which are in the nature of dying declarations of the deceased in this case. 6) P.Ws-1 and 2 when they were examined-in-chief on 28.11.2006 in the lower Court, supported the prosecution case. Their cross examination was postponed on that day at request of the defence counsel on payment of costs. Subsequently on 27.02.2007 when P.Ws- 1 and 2 were cross-examined, though they did not give go bye to their earlier version contained in their examination-in-chief including dying declaration given by the deceased to them when they enquired the deceased in the hospital, accommodated the defence counsel by stating that the deceased was not keeping proper mental health. They further added that at the first instance when they met their daughter Bhavani in the hospital, she informed that she attempted to commit suicide by pouring kerosene on herself and litting fire to herself with a match stick, and that all the relatives who gathered to see Bhavani there, advised her saying that a case for offence of attempting to commit suicide will be booked against her, and that the deceased was advised consequently to give name of somebody as the person who set fire to her. P.W-2 further added that the deceased was suffering from acute stomach ache during menstrual period from her age of puberty and that the deceased made three earlier attempts to commit suicide, but was saved by A-1 on all those three occasions. In further cross-examination of the Additional Public Prosecutor in the lower Court after treating P.Ws-1 and 2 as hostile to the prosecution, P.W-1 stated that he does not remember whether he stated to the police as in Exs.P-1 and P-2 statements and before the Mandal Executive Magistrate during inquest as per Ex.P-3 statement; and P.W-2 stated that she does not remember whether she stated to the police as in Exs.P-5 and P-6 statements and before the Mandal Executive Magistrate as in Ex.P-7 statement. P.Ws 1 and 2 did not specifically deny their earlier statements given to the police and to the Mandal Executive Magistrate, but pretended lack of remembrance of those statements. Scribe of Exs.P-1 and P-5 as P.W-18, scribe of Exs.P-2 and P-6 as P.W-16 and scribe of Exs.P-3 and P-7 as P.W-13 proved the said statements of P.Ws 1 and 2 respectively. From chronology of versions given by P.Ws 1 and 2 as noted above, it is clear that after their examination-in-chief, they were won over by the accused to accommodate the accused without disturbing their earlier versions contained in their respective statements to the police officers and the Executive Magistrate and also in their examinations-in-chief before the Sessions Judge during trial. Therefore, we do not propose to place any reliance on belated new versions given by them in their respective cross-examinations. No material is placed to show that the deceased was treated for her mental illness by a psychiatrist at Vijayawada by name Endla Rama Subbareddy. 7) P.W-18 deposed that during initial investigation, he examined witnesses including the deceased Bhavani and recorded their statements. He stated that the deceased in her statement before him stated that the accused poured kerosene and lit fire to her with match stick. In cross-examination, he admitted that at the time of recording the statement from the injured/deceased, he had not obtained any endorsement from the doctor about mental condition of the deceased Bhavani. He denied the suggestion that Bhavani never gave any statement before him and that the said statement was prepared by him in the police station. There is no cross-examination of P.W-18 to the effect that P.W-18 suppressed the said statement of the deceased and that if produced, the said statement would go against the prosecution case. The prosecution, it appears did not file statement of the deceased recorded by P.W-18 during investigation under Section 161(3) Cr.P.C and filed statements of other witnesses who are cited as witnesses, since generally statement of witness recorded under Section 161(3) Cr.P.C is no legal piece of evidence by itself and it will not contain signature of the person giving that statement. Even if the said statement recorded by P.W-18 is produced in Court, it is not going to further improve the prosecution case or defence version as it was not authenticated by the deceased by putting her signature or thumb impression therein, like in Ex.P-28 first information report recorded by the police head constable and Ex.P-26 dying declaration recorded by the Magistrate. In that view of the matter, A.Savithramma V. State of Andhra Pradesh[4] of this Court has no application herein. Further in that case there was evidence to the affect that close relatives of the deceased were very much present by the side of the deceased before the Mandal Revenue Officer/Mandal Executive Magistrate came to the hospital for recording dying declaration of the deceased. For similar reasons Harijana Mulinti Bhushanna V. State of A.P[5] of this Court cannot have any application to facts of the present case. 8) It is evidence of P.W-1 in examination-in-chief that on the same night at about 11.30 P.M when some unknown persons came to him and informed him about A-1 and the deceased having a quarrel and A-1 pouring kerosene on the deceased and setting fire to her and about shifting the deceased to Government Hospital, Machilipatnam for treatment, immediately he along with his wife P.W-2 and neighbours went to Government Hospital, Machilipatnam by about 4.30 or 5.00 A.M and saw his daughter with burn injuries in the hospital. He says that when he and his wife enquired the deceased as to what happened, the deceased informed that birthday of her daughter was celebrated and ‘Payasam’ was prepared and the deceased sent the same to Naga Durga @ Bujji who was admitted in hospital for delivery, that on request of Basavamma who is elder sister of the deceased to send food for that night to Naga Durga in the hospital, the deceased informed the same and requested A-1 to take meals carrier for giving the same to Naga Durga, that thereupon A-1 abused the deceased and questioned her as to the need for sending meals carrier to others when there was no food for themselves to eat, that A-1 had poured kerosene on her (the deceased) and set fire to her. P.W-2 deposed in her examination-in-chief that she along with P.W-1 and neighbours went to Government Hospital, Machilipatnam by about 4.00 or 5.00 A.M and that the deceased informed them that she requested A-1 to take meals carrier and give the same to Naga Durga, that thereupon A-1 abused the deceased and questioned as to the need for sending meals carrier to others when there was no food for them to eat, that during that quarrel the deceased wanted to go away to her parents’ house (to their house), that she had packed her clothes in a basket, that A-1 and A-2 had discussion, that as the deceased did not hear, she was dragged inside and kerosene was poured on her and she was set to fire. P.W-2 further says that the deceased informed that she was set ablaze when she was asked to A-1 to carry Tiffin carrier to Naga Durga. The deceased narrated the above events to P.Ws 1 and 2 few hours after the police head constable and the Magistrate recorded Exs.P-28 and P-26 statement and dying declaration respectively from her. Evidence of P.Ws 1 and 2 discloses that they along with others reached Government hospital, Machilipatnam long after Exs.P-28 and P-26 statements were recorded by the respective officers from the deceased. At the time of Exs.P-28 and P- 26, neither P.Ws 1 and 2 nor any of her relations or neighbours from her parental side were present. 9) The deceased gave Ex.P-28 statement to the police head constable at 12.50 A.M (00.50 A.M) on 11.12.2004, which statement is the 1st statement recorded in writing from her, and material portion of it runs as follows: “On 10.11.2004 at about 8 P.M. I requested my husband to hand over meals carrier to Naga Durga who is the daughter of my elder viz., Basavamma sister who delivered in Bhargavi hospital, Challapalli. On that he abused me and beat me stating that though we have no food, I am supplying food to them. On that I wept. He beat me as to why I was weeping. My daughter went and informed the same to my inlaws. In the meanwhile, I packed my clothes in a bag and stated that I will go to my parents place along with my children. My husband beat me and thrown the bag. Then I was weeping. My father-in-law called my husband and informed something to my husband. Previously also my inlaws used to quarrel with me and harass me. My husband came to me and poured kerosene on me which is lying in the tin in our house and closed the doors and lit fire. My entire body was burning with flames. I raised cries. On that my husband opened the doors and went away. Neighbours gathered there.” In Ex.P-26 dying declaration recorded by the Magistrate, which is the second statement recorded in writing from her, the deceased stated inter alia to the following affect: “My husband beat me and poured kerosene and lit fire. My inlaws are Samulu and Suramma. My marriage was performed about six years ago. I got one daughter aged 4 years. The daughter of my elder sister delivered in Bhargavi hospital. I request my husband to handover meals carrier to them. On that, my husband stated that he would not go and abused me as to why I have prepared meals for them. I wept since my husband abused me. He beat me as to why I was weaping. I packed my clothes in a bag and stated that I will go to my parents place along with my children. My husband beat the children and again beat me also. He has thrown away the clothes in the street. I did not stop weaping. My daughter also wept. She went to my inlaws house which is on the other side of the road. My husband also bent following my daughter. My fatherinlaw and my husband both talked together. I did not notice as to what they have discussed. My motherinlaw took my daughter. My husband Eswara Rao again came to me and abused me as to where I would go and beat me by caught holding tuft of my hair. He poured kerosene on me which is lying in the tin in our house. Recent we brought three litres of kerosene and kept the same in our house. He poured said kerosene on me and lit fire. While I was crying, my husband also came out and he too cried. Neighbours gathered there. Students put-off the flames. I was taken to hospital”. It is consistent version of the deceased not only before P.W-15 but also P.W-14 and also P.Ws 1, 2 and 18 to the affect that it was the appellant/A-1 who poured kerosene on her and set fire to her. 10) It is evidence of P.W-14 and P.W-15 that Dr.Ashok Kumar, Civil Assistant Surgeon in the District Hospital, Machilipatnam was present when they recorded Exs.P-26 and P-28 from the injured victim/deceased in that hospital and that the said duty doctor certified that the victim was conscious and coherent and was having fit state of mind to give statement. Therefore, on facts there is no possibility of raising any dispute that the victim woman was not having mental balance to give the said statements. 11) In Kundula Bala Subrahmanyam V. State of Andhra Pradesh[6], the Supreme Court held that dying declaration made by a person on the verge of death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement and that the shadow of impending death by itself is the guarantee of truth of the statement made by the deceased regarding the causes or circumstances leading to death and that therefore a dying declaration enjoys almost sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. It is further held therein that once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. The Supreme Court further cautioned that if there are more than one dying declaration, then Court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy and that the Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. 12) The Supreme Court in Dandu Lakshmi Reddy V. State of A.P[7] laid down the following tests while scrutinising dying declarations particularly when there are plurality of the same: “13. The first among such tests is to scrutinise whether there are inherent improbabilities in that version. We are unable to detect any such improbability inherent therein. The next test is whether there is any inherent contradiction therein. In that scrutiny we came across one material contradiction as between the two dying declarations regarding the context in which the deceased caught fire”. After scrutinising two dying declarations therein, the Supreme Court noticed that there is total variation with regard to the context when the offence took place. In the first version, the deceased therein stated that her mother-in-law and husband came from behind when she was lighting the stove in kitchen and preparing coffee, and after entering into kitchen, her husband caught hold of her hair and she was unable to move and her mother-in-law sprinkled kerosene on her body and clothes and asked her son to set fire and thereupon her husband lit