THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1170 of 2007 ORAL JUDGMENT : (per the Hon’ble Sri Justice R.Kantha Rao) 1. Heard Sri E.V.Bhagiratha Rao, learned counsel appearing for the appellants as well as learned Additional Public Prosecutor, for the respondent-State. 2. Appellants are the accused Nos.1 and 4 in the Sessions Case. 3. This Criminal Appeal, by Accused Nos.1 and 4, under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 29.08.2007, in Sessions Case No.458 of 2006, passed by the I Additional Sessions Judge, Mahabubnagar, convicting the Accused Nos.1 and 4 for the offences punishable under Section 302 of the Indian Penal Code (for brevity “I.P.C.,”) and sentencing each of them to undergo imprisonment for life and to pay fine of Rs.100/-. 4. The case of the prosecution was that the marriage of the deceased Indira @ Ramadevi was performed with A-1 in the year 2002 i.e., 3 years prior to the incident and since 1 year prior to the incident A-1 started harassing the deceased to bring additional dowry of Rs.50,000/- and the parents of deceased gave the amount. Again A-1 demanded Rupees one lakh for the construction of the house and sent the deceased to her parents house, the parents of the deceased could not pay the amount and caste elders convinced the appellants to take her back. On 02.03.2006 during night time at 2”o Clock the appellants along with two other accused pushed the deceased into the bathroom and poured kerosene over her body and set her on fire. She sustained severe burn injuries and died on 04.03.2006, while undergoing treatment at Osmania General Hospital, Hyderabad. On 03.03.2006 the deceased was admitted in the Burns Ward of Osmania General Hospital, Hyderabad, by the appellants with 100% burns. The duty Doctor informed the S.I. of police, P.W.10, by telephone that deceased set herself in open top bathroom on 03.03.2006. The Sub-Inspector of police, Afjalganj, issued requisition, under Ex.P-1, to the Metropolitan Magistrate, who recorded the dying declaration of the deceased. On 04.03.2006 after the death of the deceased P.W.2, the brother of the deceased, gave a report to P.W.9, the S.I. of Police, Kothur, who registered the case in Cr.No.57/06 under Section 304(B) I.P.C. against the appellants and 2 others. 5. In order to substantiate its case, the prosecution examined P.Ws. 1 to 12, marked Exs.P1 to P10 and M.Os.1 to 5 on its behalf. On behalf of the defence, no oral or documentary evidence was let in. 6. On consideration of the entire evidence on record, the trial court acquitted A-2 and A-3 for all the offences and convicted A-1 and A-4, as stated supra. 7. Aggrieved by the said order of the trial Court, A-1 and A-4 preferred the present appeal. 8. Now, the point that arises for consideration is whether the finding of conviction and sentence recorded by the trial court against the appellants/A-1 and A-4 having acquitted the remaining accused on the same evidence can be sustained? POINT:- 9. P.Ws. 2 and 3 - brothers of the deceased and P.W.4 – Caste elder spoke about A-1 to A-4 harassing the deceased in connection with demand of additional dowry of Rs.1,00,000/-. In view of the inconsistent versions in other depositions, the trial Court disbelieved the said version and accordingly acquitted all the appellants for the charge under Section 304-B I.P.C. However, the fact remains that there is the evidence of P.Ws.1 to 4 about the harassment meted out by A-1 and A-4 in connection with the demand for additional dowry. 10. The trial court did not believe the version of P.Ws.2 to 4 and rested its decision entirely on Ex.P4- Dying declaration made by the deceased to P.W.1, the Magistrate. P.W.1, the Magistrate, stated in his evidence that, on a requisition from the S.I. of Police, Afzal gunj police station, he proceeded to Osmania General Hospital, Hyderabad, at 3 p.m. on 03.03.2006 identified the victim with the assistance of doctor Subodh, the duty doctor, put some preliminary questions to ascertain her mental condition and on being satisfied that she was in a fit condition to make the statement before him, he proceeded to record the dying declaration of the deceased. His evidence further discloses that before proceeding to record the dying declaration, the Doctor who was present near the deceased examined her and certified in Ex.P3 that the victim was conscious and coherent and the said endorsement made by the Doctor is marked as Ex.P3. The Magistrate concluded recording the Dying Declaration by 3.30 p.m., and Ex.P4 is the Dying declaration. Ex.P4 is as follows: “I was sleeping in my house in the night yesterday. My husband quarreled with me having drunk in the night. Then my mother-in- law and my husband poured kerosene on me and set fire. My body was burnt. This was happened and nothing else to say.” As per the doctor, P.W.11, who conducted the autopsy over the dead body of the deceased, the deceased received 100% burns and died and the findings of the autopsy surgeon are as follows:- “a) The approximate time of death is: died in OGH, Hyderabad (A.P) at 11-15 AM On 04.03.2006. b) the Cause of death to best of my knowledge and belief was: due to “Burns”.” Admittedly, as per the prosecution, the deceased died on 04.03.2006 at 11.00 hours at Osmania General Hospital, Hyderabad, and P.W.2 her brother lodged Ex.P5 report with the police stating that A-1 to A-4 harassed the deceased by demanding additional dowry. In connection therewith, while the deceased was sleeping in their house, all the accused A-1 to A-4 poured kerosene and petrol on her at 2 o’clock in the night and set her on fire and in consequence thereof, she received burn injuries and ultimately died in the hospital on 04.03.2006. The learned counsel appearing for A-4/second appellant would submit that the trial court disbelieved his version with regard to the harassment caused in connection with demand of additional dowry, as such the prosecution is not able to establish the motive for the offence and, therefore, the conviction against the second appellant cannot be sustained. We see no force in the contention of the learned counsel since the conviction was entirely rested by the trial court on the dying declaration and the trial court did not place reliance on the evidence of P.Ws.2 to 4. The learned counsel would further submit that it is born out from the evidence of P.W.2 and 3 the brothers of the deceased that they and their father also were present by the side of the deceased at the time of recording dying declaration by the Magistrate and, therefore, the Dying declaration cannot be relied upon, because there is every possibility for the tutoring the deceased. However, it could be seen from the evidence of P.W.2 that initially his father and his another brother (P.W.3) went to the deceased first and after they came out he went to the deceased to the scene and then he came out. Therefore, it is the specific contention of the learned counsel for the appellant that there is every possibility of the deceased being tutored. This contention, at the outset, cannot be accepted for the simple reason that if at all there is any tutoring, the names of all the accused would have found place in the Dying Declaration. But, as already noticed, it is only the name of A-1 and A-4 did find place. It is the contention of the learned counsel for the appellants that it is only the dying declaration prepared by the doctor, without any proper certification, and it is his further contention that the Doctor who certified about the fit state of mind of the deceased was not examined and, therefore, the dying declaration cannot be the sole basis for conviction of the appellants. This contention also cannot be accepted in the light of the decision of the constitution bench of the apex Court in Laxman v. State of Maharashtra [1] wherein it was held that “ It is indeed a hyper technical view to say that there was no certification of the doctor as to fitness of the state of mind of the declarant.” Their Lordships in the above case also considered the certification of the Doctor, who certified the state of mind of the declarant, as proved by the testimony of the Magistrate who had recorded the Dying Declaration. As already noticed, the certification of the Doctor was spoken to by the Magistrate and the actual certification is about the state of mind of the declarant recorded in the dying declaration and the same was marked as Ex.P3. Therefore, when Ex.P3 is dealt along with the testimony of the Magistrate, who spoke about the fitness of the state of mind of the declarant, there is no doubt whatsoever that the deceased was actually in a fit state of mind to give the dying declaration as spoken to by P.W.1, the Magistrate, and in view of the above reasons stated by us, in the foregoing paragraphs, the dying declaration was not as a result of tutoring by any of the close relatives. The very fact that the dying declaration was recorded by the Magistrate prior to lodging of F.I.R., by P.W.2 and the deceased mentioned only the names of A-1 and A-4 in the dying declaration as the persons who poured kerosene and set her on fire, it cannot be thrown out. But, P.W.2 lodged the report implicating four accused much later to the time when actually the dying declaration was recorded by the Magistrate and the said version, including that of the evidence of P.Ws.2 to 4, was rightly disbelieved by the trial court. It is well established that a dying declaration can form the sole basis of conviction without there being any corroboration from independent witnesses. The only requirement is that the dying declaration must be considered to be truthful and reliable and was not the result of any tutoring as noticed by us, herein above. Hence the dying declaration is truthful and absolutely reliable, which inspires our confidence. The trial court rightly placed reliance on Ex.P4 dying declaration and convicted the appellants 1 and 2 for the charge under Section 302 IPC. Since it is reported to the Court, by the counsel for the appellants 1 and 2 and the learned Public Prosecutor that A-1 died during the pendency of this appeal, the appeal insofar as A-1 is concerned, shall stand abated. The conviction and sentence passed by the trial court requires no interference in this appeal and accordingly the same is confirmed. In the result, the appeal stands dismissed as against A-4. _______________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 05.08.2009. Lmv [1] 2002 SCC (CRL) 1491 = 2002(4) Crimes 42 (SC)