THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU CRL.A.No.233/2007 Dt.30-6-2010 1. Dasari Venkateswara Rao and others. ..Appellants/A-1 to A-4 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU CRL.A.No.233/2007 JUDGMENT (per the Honourable Sri Justice K.C.Bhanu) 1. This appeal under Section 374(2) of Code of Criminal Procedure,1973 is filed against the judgment dt.7-2-2007 in SC No.152/2005 on the file of I Additional Sessions Judge, Krishna at Machilipatnam, whereunder and whereby all the appellants/ A-1 to A-4 were convicted of the offence punishable under Section 302 r/w 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for a period of one month each. 2. The brief facts, which are necessary for disposal of the present appeal, may be stated as follows: P.Ws.1 and 2 are the parents, P.W.3 is the maternal uncle, P.W.4 is the aunt, P.W.5 is the brother, P.Ws.7 and 11 are relatives, of Dasari Anasuyamma (hereinafter referred to as “the deceased”). A-1 is the husband, A-2 and A-3 are the in-laws and A-4 is the brother-in-law of the deceased. The deceased was married to A-1 about six years prior to the date of the incident. At the time of marriage, Ac.1-30 cents of land was given to the deceased. After the marriage, they led a happy marital life and were blessed with two children. Later, the deceased suffered from stomach ailment and ill-health. Doctors advised her to undergo an operation which was estimated to cost about four lakhs. As her family was not in a position to meet the expenses, she was frustrated. The deceased wife was suspecting that A-1 was having illicit intimacy with another woman, due to which he is neglecting the welfare of the wife and children. A-1 used to beat and abuse the deceased. Due to the instigation of A-2 and A-3, A-1 sent the deceased away to her parents’ house to bring more money. The elders intervened and set right the problem. A separate house was constructed and the deceased used to live therein. A-1 continued to ill- treat the deceased both physically and mentally. When the deceased was questioning A-1 for his attitude, he used to beat her and she informed the problems to her maternal uncle. On 2-9-2004 the deceased and her people questioned the accused about his cruelty towards the deceased, for which the accused replied that four days prior thereto, the victim deceased set fire to the house of the accused. The uncle of the deceased advised them to live happily without entanglements. On the same day at about 3 PM, all the accused brought kerosene and poured on the deceased. A-1, A-2 and A-4 caught hold of the deceased firmly and A-3 lit the match stick and set fire to the deceased. The deceased came out of the house with flames and raised hue and cries. On hearing, neighbours rushed there and put off the flames. The mother of the deceased was called, who shifted her to the hospital in a taxi. In the hospital, the Assistant Sub-Inspector of Police, Gudivada I Town Police Station recorded the statement of the deceased and on its basis registered the crime. The statement of the deceased was also recorded by the Judicial Magistrate of First Class. On the same night at about 10-35 PM the deceased died. The investigation revealed that A- 1 to A-4 have committed the offences alleged against them. Ex.P-26 was recorded by P.W.19- Additional Judicial First Class Magistrate, Gudiwada on 2-9-2004 at 6-20 PM and Ex.P-27 was recorded by P.W.20-Assistant Sub-Inspector of Police, Gudiwada II Town Police Station in between 6-35 PM and 7-00 PM. In Ex.P-26, the deceased stated that her husband, mother-in-law, father-in-law and brother-in-law together poured kerosene and set fire to her. Three male persons caught hold of her with hands; her mother-in-law set her fire with litting a match stick. On 2-9-2004 at 21-30 hours on receiving statement of the deceased, P.W.21, the then Sub-Inspector of Police, registered the same as a case in Cr.No.86/2004 and issued FIR covered under Ex.P- 28. On receiving death intimation at about 1-15 AM, he altered the section of law and issued altered FIR covered under Ex.P-29. On 3-9-2004 P.W.22-Inspector of Police took over further investigation and he visited the scene of offence and prepared an observation report and rough sketch of the scene covered under Exs.P-31 and 30 respectively. On requisition, P.W.18-the then Mandal Revenue Officer held inquest over the dead body of the deceased in the presence of P.Ws.16 and 17. During the course of inquest, he examined P.Ws.1 to 3 and recorded their statements. Ex.P-24 is the inquest report. On 3-9-2004, P.W.17-the then Civil Assistant Surgeon, Area Hospital, held autopsy over the dead body of the deceased and opined that the cause of death was due to shock resulting from extensive ante- mortem burns of varying degrees.Ex.P-22 is the post-mortem certificate. On 4-9-2004, P.W.22 arrested A-1 to A-4 and sent them to judicial remand. A-4 was arrested on 6-9-2004. After receiving relevant documents and on completion of investigation, P.W.22 filed the charge sheet. 3. The learned Sessions Judge framed the following charges against the accused: Firstly:- That you, Dasari Venakteswara Rao, prior to 2-9-2004 at your house in Rajanagaram of Mudinepalli Mandal, being the husband of the deceased Dasari Anasuyamma, subjected her to cruelty, to wit, used to abuse and beat her, and that you thereby committed an offence punishable under Section 498-A of Indian Penal Code and within the cognisance of Court of Session. Secondly:- That you,A-1 Dasari Venakteswara Rao, prior to 2-9- 2004 at your house in Rajanagaram village of Mudinepalli Mandal committed the offence of subjecting your wife Dasari Anasuyamma to cruelty and harassment both physically and mentally and that you,A-2 to A-4 abetted A-1 in the commission of the said office of cruelty, which was committed in consequence of (or as a result of ) your abetment, and you have thereby committed an offence punishable under Section 109 and Section 498-A of the Indian Penal Code, and within my cognizance. Thirdly and lastly:- That you, A-1 to A-4, on the 2nd day of September, 2004 at your house, in Rajanagaram of Mudinepalli Mandal, in furtherance of your common intention of all of you, did commit murder by intentionally (or knowingly) causing the death of Dasari Anasuyamma and before her death subjecting her to cruelty and harassment by you in connection with the demand of dowry and that you thereby committed an offence punishable under Section 302 r/w 34 of the Indian Penal Code and within the cognizance of Court of Session. When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the case of the prosecution, the prosecution has examined P.Ws.1 to 22 and got marked Exs. P-1 to P-31 besides case properties M.Os.1 to M.O.5. 5. After completion of the prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., with reference to the incriminating evidence found against them in the evidence of the prosecution witnesses, for which they denied. The accused reported no evidence. 6. The trial court after accepting the dying declarations covered under Exs.P-26 and P-27 recorded by P.Ws.19 and 20 respectively found the accused guilty of the offence punishable under Sec.302 r/w 34 IPC and accordingly convicted and sentenced them as aforementioned while acquitting them of the offences punishable under Sections 498-A and 498-A r/w 109 IPC. Challenging the conviction and sentence recorded for the offence punishable under Section 302 r/w 34 IPC, A-1 to A-4 filed the present appeal. 7. Learned Senior Counsel appearing for the appellants/accused, Sri C. Padmanabha Reddy, contended that the entire case rests upon the dying declarations covered under Exs.P-26 and P-27 and both are inconsistent with regard to the manner of attack and who has set fire the deceased; that these two dying declarations are totally inconsistent with each other and it is not safe to place an implicit reliance on these two dying declarations to base a conviction; that from the dying declarations, it cannot be inferred that all the four persons poured kerosene and all four persons set fire to the deceased; that when the Magistrate already recorded the statement from the deceased, there is absolutely no necessity for the Assistant Sub-Inspector of Police to record the statement from the deceased; that there was a possibility for the relatives and friends of the deceased, who are admittedly present before arrival of the Magistrate and Assistant Sub-Inspector of Police, to tutor or prompt the deceased to give a false statement against the accused; and that in view of the above inconsistencies, it is not safe to base a conviction solely basing upon the two dying declarations. He, therefore, prays to set-aside the conviction and sentence recorded against the appellants/accused. 8. On the other hand, the leaned Public Prosecutor contended that the two dying declarations were recorded immediately after the incident, and from these dying declarations, it is evident that all the accused persons poured kerosene and set fire to the deceased and there is no other reason to doubt the dying declarations; that the inconsistencies as pointed out by the learned Senior Counsel are trivial in nature and, therefore, no importance can be given to such inconsistencies; that the trial court, upon proper appreciation of the evidence on record, rightly convicted and sentenced the appellants and there are no grounds to set-aside the conviction and sentence recorded by the trial court and hence he prays to dismiss the appeal. 9. Now the point that arises for consideration is: “Whether the conviction and sentence recorded by the trial court against the appellants/A-1 to A-4 are sustainable and the prosecution proved its case beyond all reasonable doubt against them? 10. Entire case rests upon two dying declarations covered under Exs.P-26 and P-27 recorded by P.W.19 and P.W.20 respectively. The time gap between recording of the two dying declarations is only 15 minutes. First dying declaration covered under Ex.P-16 recorded by P.W.19 was concluded by 6-20 PM on 2-9-2004. Thereafter, P.W.20, who is Assistant Sub-Inspector of Police, came and recorded the statement from the deceased in between 6-35 PM and 7-00 PM. Though the time gap between recording the two dying declarations is only 15 minutes, there should not be any variance with regard to the manner of pouring kerosene and setting fire to the deceased. 11. A statement written or verbal made by a person as to the cause of her death or any of the circumstances resulting in her death, in case, in which the death of that person comes into question, is admissible under Section 32 (1) of the Indian Evidence Act,1872. It is well settled that once the dying declaration is found to be true and voluntary and not an out come of tutoring or prompting by any of the relatives of the deceased, a conviction can be maintained solely basing on the dying declaration. 12. P.Ws.1 to 12, 14 and 15, who are closely related to the deceased, did not support the case of the prosecution and they have given a complete go by to the earlier statements made to the police. As they were resiling from their earlier statements made to the police, they were cross-examined by the prosecution. Even after taking permission from the Court to cross-examine those witnesses, nothing has been elicited in their cross-examination to connect the accused with the crime except marking their statements recorded by the police during the course of investigation under Sec. 161(3) Cr.P.C., 13. As already stated, entire case rests upon two dying declarations covered under Exs.P-26 and P-27. In the first dying declaration covered under Ex.P-26, it was stated that the deceased came to her in-laws house at noon time and that her husband, mother- in-law, father-in-law and brother-in-law together poured kerosene on her and set fire to her. In continuity of that statement, she again stated that three male persons caught hold her with hands and her mother-in- law set fire with a match stick. Whereas in the second dying declaration-Ex.P-27 recorded by P.W.20-Assistant Sub-Inspector of Police, the deceased stated that at about 3 PM, her husband, father-in- law, brother-in-law and mother-in-law together uttered words stating that they would kill her and left her, so saying they brought kerosene tin kept in the house and poured upon her and set fire with a match stick, and when she ran out from her house by crying, neighbours extinguished the fire. So, these two dying declarations are not consistent with regard to the manner of pouring kerosene and setting fire to the deceased. In such circumstances, can it be safe to place reliance on the two statements of the deceased. 14. On this aspect, the learned Senior Counsel appearing for the appellants placed reliance on the judgment reported in ARVIND SINGH V. STATE OF BIHAR[1], wherein it was held by the Supreme Court at para 18 as under: “Dying declaration in the instant matter thus we must confess raised certain amount of eyebrows and Mr. Verma also with his usual eloquence did put a strong protest in regard thereto. The evidence of this declaration depicts that just before a few minutes of her death, the deceased would make a declaration quietly to the mother naming therein all the three relations along with the husband who poured kerosene to burn her alive. This is not acceptable, more so having regard to the declaration being made to the mother only. In any event, is it conceivable that the husband along with the father-in-law, mother- in-law, brother-in-law would start pouring kerosene together on to the girl - as if each was prepared with a can of kerosene to pour simultaneously - This not only would lead to an absurdity but reliance on such a vague statement would be opposed to the basic tenets of law. Further it is in evidence that the deceased had an extensive burn including her mouth, nose and lips - if any credence is to be allowed to the same, then and in that event, the evidence of the mother about the confession stands belied by itself…….” In the circumstances with regard to manner of pouring kerosene and setting fire to the deceased therein, Their Lordships held that it is not safe to place an implicit reliance on two dying declarations. The facts in the above case are almost similar to the facts in the present case. 15. The learned Senior Counsel also relied upon another judgment reported in STATE OF PUNJAB V. PARVEEN KUMAR[2], wherein it was held at para 10 by the Supreme Court as under: “While appreciating the credibility of the evidence produced before the court, the court must view the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence…..” 16. In view of these inconsistencies, it cannot be said that these two declarations are true and voluntary statements as stated by the deceased. 17. The deceased was taken to the hospital on the date of incident at about 5-30 PM by the neighbours. P.W.16 sent intimation covered under Ex.P-25 to the Judicial First Class Magistrate to record the statement of the deceased. He also sent an intimation-Ex.P-19 to the police. Admittedly, most of the relatives of the deceased, neighbours and village elders of Rajanagaram were present with the injured before recording the statements by P.Ws.19 and 20. If really the incident had taken place in the manner spoken to by the deceased that all the accused poured kerosene and her mother-in-law set fire to her, the said fact would have been stated to Doctor-P.W.16 when she was admitted in the hospital at first instance. P.W.16 has categorically admitted that at the time of her admission, patient did not inform him about the cause as to how she sustained burn injuries. So, at the earliest point of time, she has not disclosed as to how she sustained the burn injuries. Therefore, there is every possibility for the relatives, friends, and neighbours who were present with her before recording two dying declarations to tutor the deceased to give a false statement against the accused. That possibility cannot be ruled out. There is absolutely no other evidence to show that there was a reason or motive for the accused to commit the murder of the deceased. The evidence of the relatives would go to show that the deceased was suffering from stomach-ache. All the relatives of the deceased did not support the case of the prosecution. That does not mean their evidence would efface from the record. Such part of their testimony, which inspires confidence, can be used for corroboration. There is no such other evidence. 18. The other contention of the learned Senior Counsel appearing for the appellants is that when the Magistrate had already recorded the statement from the deceased, there was absolutely no necessity to record the statement by the police. But. that cannot be a ground to discredit the statement recorded by Assistant Sub-Inspector of Police, because, after receipt of intimation from the Doctor, he went there and recorded the statement, and perhaps, he might not have knowledge about the recoding of statement by the Magistrate. Therefore, there is nothing unusual for P.W.20 to record the statement of the deceased after receipt of intimation from the hospital. 19. In view of the fact that Exs.P-26 and P-27- two dying declarations are totally inconsistent with regard to who and the manner in which the accused poured kerosene and set fire to the deceased by litting a match stick, we are unable to place reliance on these two dying declarations. These two dying declarations appear to have been made by the deceased after listening the words of the relatives, friends and neighbours who brought her to the hospital. Keeping in view all these suspicious circumstances, it is unsafe to place an implicit reliance solely on the two dying declarations to base a conviction. Hence, the conviction and sentence recorded by the trial court are liable to be set aside. 20. The Criminal Appeal is, accordingly, allowed, setting aside the conviction and sentence recorded against the appellants/A-1 to A- 4 for the offence under Section 302 r/w 34 IPC by judgment dt. 7-2- 2007 in Sessions Case No.152/2005 on the file of I Additional Sessions Judge, Krishna District at Machilipatnam. The appellants/A-1 to A-4 are found not guilty of the charge under Section 302 r/w 34 IPC and are, accordingly, acquitted. The fine amount, if any paid by them, shall be refunded to them. The appellants/A-1 to A-4 shall be released forthwith, if they are not required in any other case. --------------------- A.GOPAL REDDY,J --------------- K.C.BHANU ,J DT.30-6-2010 Kmr [1] 2001 Crl.L.J.2556(1) [2] AIR 2005 SC 1277