THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Appeal No.721 of 2007 Date: 28.01.2011 Between: Sundarapalli Satyanarayana … Appellant ANDqwt The State of A.P., rep.by Public Prosecutor, High Court of A.P., Hyderabad, another. … Respondent THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Appeal No.721 of 2007 JUDGMENT (per Hon’ble Sri Justice K.G. Shankar): Circumstantial evidence and duality of dying declarations and their evidentiary value are under consideration in this appeal. It is a case of uxoricide. As usual in the case of a family rift and consequent criminal action on the part of the spouse, the alleged killing of the deceased-wife by the accused-husband took place inside the house. There were, therefore, no eye witnesses for the incident proper. 2. The deceased-wife, who was admitted in the hospital, made a statement to a Police Head Constable (PW.13) and later to a Judicial Magistrate of First Class (PW.4). The prosecution in all examined 16 witnesses out of the 27 witnesses cited by it. Ex.P.1 is the statement recorded by PW.13 from the deceased. Ex.P.4 is the dying declaration recorded by PW.4. On the basis of Exs.P.1 to P.4 and the evidence of the witnesses, the learned V Additional Sessions Judge, East Godavari at Rajahmundry found the accused guilty for the solitary charge under Section 302 of the Indian Penal Code (for short ‘IPC’). He was sentenced to imprisonment for life and also fine of Rs.1,000/-, in default of payment of which, to undergo simple imprisonment for a period of three months. Aggrieved by the same, the present appeal is preferred. 3. Although the accused was defended before the trial Court, the accused pleaded his inability to engage a counsel before this Court. Smt. N. Ammaji was appointed as legal aid counsel to represent the accused. 4. The case of the prosecution briefly is: i) The deceased was the wife of the accused. Their marriage was solemnized about six years prior to the death of the deceased. The deceased gave birth to a female child during their wedlock. ii) The accused was addicted to vices and more particularly the accused was an alcoholic. Although he was a labourer by profession, he was lazy and was not attending to labour work. He used to contract debts to raise money to satisfy his vices. The accused and the deceased often used to quarrel on that count. iii) The accused stayed with the deceased only for about four months after the marriage. He later went away to the house of his parents leaving the deceased at the house of her parents. A compromise was thereafter reached at the behest of the relatives of the accused and the deceased. Late Vanapalli Badram was the chief mediator at that time. The accused consequently joined the deceased at D. Kesavaram, which was the place of residence of the deceased. The accused, however, did not mend his ways and continued with his wavering behaviour. iv) On 06.10.2004, when the accused returned to the matrimonial house at about 7.30 p.m. in a drunken state, the deceased questioned the conduct of the accused and found fault with him for not going to labour work. The accused bore grudge and decided to kill the deceased-wife. He consequently poured kerosene found in the house upon the deceased and set her ablaze. He later went outside the matrimonial home, bolted the door from outside and took to heels. On hearing the painful cries of the deceased, neighbours rushed to the house of the accused and the deceased, opened the doors of the house, rescued the deceased from flames and shifted her to Government Headquarters Hospital, Rajahmundry by about 11.10 p.m. v) The Duty Head Constable at the Government Headquarters Hospital, Rajahmundry recorded the statement of the deceased (Ex.P.1). The Sub-Inspector of Police (PW.14) registered the same as First Information Report (FIR) u/s.307 IPC (under Ex.P.13). When the accused subsequently died, altered FIR (Ex.P.15) was issued u/s.302 IPC. 5. On the basis of the allegations of the prosecution, a solitary charge u/s.302 IPC was framed against the accused. The prosecution examined 16 witnesses. Exs.P.1 to P.20 and MOs.1 to 4 were marked. The defence neither examined any evidence nor did it mark any exhibits on its side. 6. The evidence of the prosecution is: PW.1 is the father of the deceased. PW.2 is the mother of the deceased. The deceased was the second daughter of PWs.1 and 2, out of three daughters and a son they begot. The accused and the deceased lived more or less happily for a period of one year after their marriage. The name of the third daughter is Nikitha. i) The accused was addicted to alcohol. He used to spend all his earnings on alcohol. When the deceased protested for the conduct of the accused in spending away the money on alcohol, quarrels ensured between the accused and the deceased. Deserting the deceased, the accused went away to the house of his parents at Varny, Nizamabad District. ii) However, a compromise was reached between the deceased and the accused on the intervention of Vanapalli Badram (LW.15) and the accused and the deceased again joined and started living in the house of PW.3 as tenants. iii) As the accused did not stop the vice of consuming alcohol, the deceased used to quarrel with the accused about the conduct of the accused. On the ill-fated day on 06.10.2004, while the accused and the deceased quarrel with each other, the accused poured kerosene over the deceased at about 7 p.m. and set fire to the deceased. The accused later went outside the house, bolted the door from outside and went away. iv) When the deceased raised alarm, PW.10, who is the mother of PW.1, PW.5, who is the neighbour of the deceased as well as PWs.6 & 7, who are also the neighbours of the deceased and the accused, who heard the alarm of the deceased, rescued the deceased by putting off the flames and admitted her in the hospital. v) PW.13, who was the Duty Head Constable at the Police Outpost at the Government Headquarters Hospital, Rajahmundry received hospital intimation under Ex.P.12 and later recorded statement of the deceased under Ex.P.1. PW.4, then II Additional Junior Civil Judge, Rajahmundry, recorded the dying declaration of the deceased from 12.05 a.m. till 12.45 a.m. on 6/7.10.2004 under Ex.P.4 on receipt of hospital intimation under Ex.P.3. The statement of the deceased recorded by PW.13 under Ex.P.1 was registered as FIR under Ex.P.13. The deceased unfortunately breathed her last on 07.10.2004 itself. On receipt of the death intimation of the deceased through Ex.P.14 that the deceased died at about 11 a.m. on 07.10.2004, PW.14, Sub-Inspector of Police, Ganavaram Police Station, issued Ex.P.15 altered FIR. vi) It would appear that the accused was at large and was not arrested by the police immediately or even by the date of laying of the charge sheet. The accused subsequently was remanded to judicial custody. It is not clear from the record whether the accused surrendered himself or was arrested. In any event, from the date of the impugned judgment, the accused has been in jail. 7. On the set of the above facts, the learned trial Judge found the accused guilty. The accused assails the same inter alia contending that the prosecution failed to establish the guilt of the accused much less beyond reasonable doubt. 8. PWs.1 and 2 are the parents of the deceased. PW.5 is the brother of PW.1 and is the maternal uncle of the deceased. PW.10 is the maternal grand mother of the deceased. PW.3 is the landlady in whose house the deceased and the accused were residing by the date of the death of the deceased. PWs.6 & 7 are immediate neighbours of the deceased. However, the houses of PWs.1 & 2, 5 to 7 and 10 to 12 are near the house of the accused and the deceased. Thus, PWs.1 to 3, 5 to 7 and 10 to 12 are the neighbours of the deceased and the accused out of whom PW.3 is the very landlady of the deceased. It may be noticed that barring for PW.3, none of them have been residing in the house of the accused and the deceased. PWs.1, 2, 5 to 7, 10 and 11 speak about the quarrels between the accused and the deceased. PW.3, who is the landlady of the house under the occupation of the accused and the deceased, however, claimed that the accused and the deceased never quarrel led with each other. 9. The learned counsel for the accused inter alia contended that the very misunderstandings with the intensity of quarrels between the accused and the deceased have not been made out in view of the evidence of PW.3. It may be noticed that PW.3 is also not a resident of the house under the occupation of the accused and the deceased. She more or less was as much a neighbour of the accused and the deceased as PWs.1, 2, 5 to 7, 10 & 11 are. In view of overwhelming evidence from these witnesses, there is no difficulty to accept the stand of the prosecution that there were quarrels between the accused and the deceased. There is no ostensible reason for these witnesses to speak against the accused. There is no motive for them to foist a case against the accused. Barring for PWs.1, 2, 5 and 10, rest of the witnesses are not even relatives of the accused and the deceased. Therefore, their evidence cannot be suspected as the evidence of partisan witnesses. We agree with the contention of the learned Public Prosecutor that the evidence of witnesses regarding the quarrels between the accused and the deceased cannot be suspected. 10. For that matter, the evidence of these witnesses cannot be doubted on any count. However, the fundamental question is whether the evidence of these witnesses establishes the guilt of the accused for the offence u/s.302 IPC. It may be recalled that none of the witnesses was an eye witness for the incident proper. No one saw the accused pouring kerosene upon the deceased and setting her ablaze. From the fact that the deceased raised alarm when she was in flames and on the basis of the statement of the deceased under Exs.P.1 and P.4, the witnesses assumed that the accused set fire to the deceased. There is no place for assumptions and preponderance of evidence in criminal jurisprudence. The prosecution in the acquisitorial system shall prove the guilt of the accused beyond reasonable doubt, failing which it shall be presumed that the accused is not guilty. Therefore, the pertinent question is whether the prosecution established the guilt of the accused much less beyond reasonable doubt. 11. As already pointed out, none of the witnesses found the accused pouring kerosene over the deceased. The whole case of the prosecution rests upon the statement of the deceased. The case of the prosecution inter alia is that PW.13 recorded the statement of the deceased under Ex.P.1 and that PW.4 recorded the dying declaration of the deceased under Ex.P.4. As the deceased claimed in both the statements that the accused quarreled with the deceased, poured kerosene over her and set her to fire with a view to kill her. The prosecution contended that the accused is guilty of the offence u/s.302 IPC. On the other hand, the learned defence counsel contended that the two statements of the deceased under Exs.P.1 and P.4 are so inconsistent with each other that the accused cannot be convicted for the death of the deceased. 12. PW.1, mother of the deceased deposed that while police examined and recorded the statement of the deceased—which is under Ex.P.1—she deposed that she did not remember if any other authority recorded the statement of the deceased. PW.2, father of the deceased, on the other hand, deposed that not only police and a Judicial First Class Magistrate, but a Mandal Revenue Officer also recorded the statement of the deceased. The witnesses also stated that the deceased informed one and all that the accused set fire to the deceased. Neither the representation of the deceased to the witnesses nor the statement of the deceased to the Mandal Revenue Officer was reduced into writing. The alleged statement of the deceased before the Mandal Revenue Officer was not produced before the Court. However, when the prosecution did not furnish the entire pre-trial statements to the accused, a presumption deserves to be drawn that the withheld pre-trial statements were in favour of the accused. However, PW.16, Mandal Revenue Officer, who conducted the inquest, deposed that he examined the witnesses at the time of inquest. He did not state that he examined the witnesses independently. The question of the Mandal Revenue Officer recording the statement of the deceased and withholding the same thereafter therefore did not arise. Consequently, this is not a case where pre-trial statements of the witnesses were withheld by the prosecution automatically entitling the accused for acquittal. 13. Indeed, the learned defence counsel primarily attacked the case on the point of inconsistent statements under Exs.P.1 & P.4 and not on the claim of PW.2 that the Mandal Revenue Officer also recorded the statement of the deceased. 14. The learned defence counsel contended that when there is more than one dying declaration, unless the dying declarations are consistent with each other on material particulars, the dying declarations become suspicious. In support of her contention, the learned defence counsel placed reliance on the following cases. i) In Kamla v. State of Punjab[1], there were as many as four dying declarations in a bride burning case. The dying declarations contained glaring inconsistencies in naming the very culprit. One of the dying declarations even suggested that the incident was an accident. The Supreme Court held that it would not be safe to convict the accused u/s.302 IPC on the basis of one of the four dying declarations. ii) In State of Andhra Pradesh v. P. Khaja Hussain[2], the husband allegedly murdered the wife by pouring kerosene over her and setting fire to her. There were two dying declarations, first of which was recorded by a judicial Magistrate while the second was recorded by a police officer. There was variation in between the two dying declarations regarding the manner in which the deceased was set on fire. The variation was not a trivial variation. Even the scenario, described in the dying declarations was different. The Supreme Court considered that it was not safe to convict the accused on the basis of such inconsistent dying declarations. iii) In Gopal v. State of A.P.[3], there were more than one dying declaration. The Supreme Court held that it is not the plurality of the dying declarations, but the reliability of the dying declarations that determines the truth of the prosecution story. If the dying declaration was found to be voluntary, reliable and was made in a fit mental condition, the Supreme Court considered that such a dying declaration could be relied upon without any corroboration and that the plural dying declarations should be consistent throughout. The Supreme Court further elaborated that if there are inconsistencies in the dying declarations, the Courts should examine whether the inconsistencies are material or non-material. 15. The learned Public Prosecutor contended that the inconsistency in between Exs.P.1 and P.4 is not material and that the dying declarations, therefore, deserve to be accepted. The question, therefore, is whether Exs.P.1 and P.4 are consistent enough to accept that they establish the guilt of the accused beyond reasonable doubt. 16. Ex.P.1 was recorded at 11.45 p.m. on 06.10.2004. Indeed, it was more or less recorded as a statement and not as a dying declaration. It was recorded by PW.13. The deceased Bhadram, wife of the accused stated in Ex.P.1 that her husband poured kerosene over her and set her ablaze. This is the gist of Ex.P.1. 17. Going into the particulars of Ex.P.1, the deceased stated to PW.13 that at about 7.30 p.m. on 06.10.2004, the accused went home in a drunken state having evaded work for the day. It was the case of the deceased that the deceased had questioned the accused as to how the family could be run if the accused went on contracting debts and had failed to make any earnings and that quarrels ensured between the accused and the deceased as the deceased questioned the attitude of the accused. 18. The deceased thereafter claimed that the accused became angry as she questioned the accused about his conduct, that the accused brought kerosene available in the house, sprinkled the same on the body of the deceased and set fire to the deceased with a matchstick and that the accused thereafter took to heels. 19. Ex.P.4 is the dying declaration recorded by PW.4. The material part of the story of the deceased before PW.4 can be found in answers to the questions 13 and 14 under Ex.P.4. The learned Magistrate recorded the dying declaration of the deceased from about 12.05 a.m. till about 12.45 a.m. on 6/7.10.2004. In other words, Ex.P.4 was recorded subsequent to Ex.P.1, as Ex.P.1 was recorded at about 11.45 p.m. on 06.10.2006. 20. The deceased stated to PW.4 that the accused beat her when the accused went home at about 7 p.m. on 06.10.2004 in a drunken state and did not go to work for the day and when the deceased questioned about the consumption of alcohol by the accused and his not going to work for the day. 21. She further deposed before PW.4 that when the deceased asked the accused why did he consume alcohol, the accused in turn questioned the deceased why was she questioning the accused on the same aspect frequently and that so challenging the deceased, the accused went into the house, brought a kerosene lamp, poured kerosene from the lamp on the body of the deceased and set fire to the deceased with the kerosene lamp. 22. Under Question No.13 in Ex.P.4, the deceased informed PW.4 that the accused beat her when the deceased questioned the accused about his conduct and attitude. In Ex.P.1, there was no reference to such beating of the deceased by the accused. In Ex.P.1, the deceased merely stated that quarrels developed between the accused and the deceased. 23. In Ex.P.1, the deceased stated that the accused brought kerosene found in the house and sprinkled the same on the body of the deceased. In Ex.P.4, the deceased stated that the accused brought a kerosene lamp from the house and poured kerosene from the lamp over the body of the deceased. Finally, in Ex.P.1, the deceased claimed that the accused set fire to the deceased by lighting a match stick and throwing the same at the deceased. In Ex.P.4, the method adopted by the accused in setting the deceased ablazed was lighting the body of the deceased with the kerosene lamp. 24. Thus, (a) in Ex.P.1, there was a quarrel between the accused and the deceased while in Ex.P.4, the accused beat the deceased, (b) in Ex.P.1, the accused sprinkled kerosene found in the house over the deceased while in Ex.P.4, the accused poured kerosene from the lamp, and (c) in Ex.P.1, the accused set fire to the deceased with match sticks while in Ex.P.4 the accused lighted the body of the deceased with the kerosene lamp. 25. Smt. N. Ammaji, learned counsel for the accused contended that the inconsistencies mentioned above are glaring contradictions in Exs.P.1 and P.4 statements. It is not even as though there was considerable gap between Exs.P.1 and P.4 for the memory of the deceased to slip. Ex.P.1 was recorded at 11.45 a.m. and recording of Ex.P.4 commenced 20 minutes thereafter at 12.05 a.m. Despite the short time between Exs.P.1 and P.4, the deceased changed the mode and manner of the incident. The learned Public Prosecutor contended that in both the statements, the deceased stated that the accused poured kerosene over her and set her ablaze and that the inconsistencies referred to by the learned counsel for the accused are so minor that they deserve to be ignored. 26. If the above inconsistencies are viewed in isolation, each of the three inconsistencies is a minor inconsistency. Viewed comprehensively, the differences of not one but three aspects become a major issue of contradiction. Add to it is the fact that there was no direct evidence at all barring for the statements of the deceased. In such an event, the inconsistencies in the statements of the deceased become glaring contradictions. A decision of the Supreme Court has already been referred to in Khaja Hussain’s case (supra) where it was held that in case of multiplicity of dying declarations, the dying declarations should be consistent on material facts. In the present case, where there was no direct evidence and where the two statements under Exs.P.1 and P.4 were recorded with a small gap of about 20 minutes, the differences in the mode and manner of the incident as narrated in Exs.P.1 and P.4 become flagrant leading to circumstances where it would not be safe to convict the accused on the strength of Exs.P.1 and P.4 which did not agree with each other. 27. PW.2, father of the deceased admitted that he was with the deceased in the hospital till her death and that the deceased talked to him. PW.1 also leaves a distinct impression that she had access to the deceased from the time she was found in a burnt condition at her house till she died. PWs.6, 7 and 10 also left no doubt that they had opportunity to interact with the deceased before her first statement under Ex.P.1 was recorded by PW.13. It is not as though the deceased was tutored to speak against the accused. At the same time, it is for the prosecution to show why the deceased made different statements within a short span of time. Where the prosecution failed to explain and synchronize the differences in Exs.P.1 and P.4 regarding the mode and manner of the incident, it is not safe to place reliance solely upon Exs.P.1 and P.4 to convict the accused. 28. There is yet another curious aspect in this case. Ex.P.4 dying declaration is claimed to be not acceptable on the ground that it was recorded in violation of Rule 33 of the Criminal Rules of Practice, 1990 and the judicial opinion. In Ex.P.4, question No.11 and answer thereto is the core of the controversy. They read: “11. Can you give statement? I can state” PW.4 thereafter recorded that from the preliminary questions put to the declarant (the deceased herein) he was satisfied that the deponent was in a fit state to make a declaration. He obtained the statement of the duty doctor thereafter that the deponent was conscious and coherent to make the statement. 29. The learned counsel for the accused contended that PW.4 did not follow Rule 33 of the Criminal Rules of Practice. Rule 33 (2) ordains that the Munsif Magistrate who intends to record the dying declaration should ask the declarant whether the declarant was mentally capable of making a declaration. It is the contention of the learned counsel for the accused that PW.4 did not ask the deceased whether she was mentally capable of making the declaration. She pointed out that PW.4 merely asked the deceased whether the deceased could make a statement and did not ask whether the deceased was mentally capable of making the statement. This contention appears to be slightly hyper technical. The learned counsel for the accused would appear to suggest that the Judicial Magistrate of First Class should put the exact words to the deceased about her mental capability. 30. The learned Public Prosecutor placed reliance upon Laxman v. State of Maharashtra[4] to contend that the Court must satisfy itself that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Where eye witnesses