IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE 23rd DAY OF AUGUST, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.444 of 2007 Between: Tirupathaiah. … Appellant/accused And The State of Andhra Pradesh, rep. By Its Public Prosecutor. … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.444 of 2007 ORDER: - (Per Hon’ble Sri Justice A.GOPAL REDDY) The appellant/sole accused, who faced the trial for the offences punishable under Sections 302 and 498A IPC was found guilty and was sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.5,000/-, in default simple imprisonment for two months for the offence punishable under Section 302 IPC and also to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- in default simple imprisonment for one month for the offence punishable under Section 498A IPC, by judgment dated 08.12.2006 in Sessions Case No.156 of 2003, on the file of III Additional Metropolitan Sessions Judge, Hyderabad, filed this criminal appeal challenging the conviction and sentence recorded against him. 2. The substance of the charge against the accused is that he being the husband of Laxmamma subjected her to cruelty for money and that on 08.01.2002 at 12:30 p.m. at Yerukalabasthi, Jangammet, Hyderabad he committed the murder of the deceased by pouring kerosene on her body and by litting fire to her. 3. The prosecution story as unfolded during the course of trial is briefly stated as under: - The marriage of the accused with Laxmamma {hereinafter referred to as “the deceased”} was solemnized about five years prior to her death and they both were living at Jangammet. During the wedlock, they were blessed with one daughter and one son. P.W.1 is the mother and P.W.4 is the sister of the deceased. P.Ws.2, 11 and 12 are the residents of the same locality. The accused, who was addicted to drinking, used to beat the deceased for money and snatch away the money earned by the deceased on coolie work to satisfy his vices. On 08.01.2002 at about 12:00 noon the accused picked up quarrel with the deceased suspecting her fidelity that she is having illicit intimacy with his brothers and senior paternal uncle, poured kerosene on the body of the deceased and set fire with the help of match stick and left the house. The deceased, who was in flames, removed her wearing clothes and fell down in her house. On her cries, the residents of the locality P.Ws.2, 4, 11, and 12 came there and shifted the deceased to Osmania Hospital in an auto-rickshaw. P.W.7 the Sub-Inspector of Police, Chatrinaka police station on receipt of the hospital intimation made a Dying Declaration entry and deputed P.W.6-the Sub-Inspector of Police to the hospital for recording the statement of the injured. P.W.6 went to the hospital and recorded the statement of the deceased under Ex.P5 and handed over the same to P.W.7. On receipt of Ex.P5, P.W.7 registered a case in crime No.5/2002 for the offences punishable under Sections 498A and 307 IPC and issued Ex.P6 F.I.R and he gave a requisition P.W.8-the XXII Metropolitan Magistrate, Hyderabad for recording the dying declaration. On the requisition made by P.W.7, P.W.8 visited the hospital at 04:10 P.M. and after obtaining endorsement of the duty doctor, she put some preliminary questions to the deceased. On her satisfying about the condition of the patient that the patient is conscious to give answers, she recorded the dying declaration under Ex.P9. After completion of recording the statement, she obtained the endorsement from the duty doctor. On the same day at 07:00 P.M., the victim died. On receipt of the death intimation from Osmania General Hospital about the death of Laxmamma with burn injuries, P.W.9-the Inspector of Police altered the section of law from Sections 498A and 307 IPC to Sections 498A and 302 IPC and conducted investigation and gave a requisition to the Revenue Divisional Officer to depute the Mandal Revenue Officer for conducting inquest on the dead body of the deceased. P.W.13, the Assistant Professor in the department of Forensic Medicine, Osmania Medical College pursuant to the requisition of the Mandal Revenue Officer, conducted autopsy over the dead body and issued Ex.P14 post mortem report, opining that the deceased appears to have died of shock consequent to burn injuries. 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 examined P.Ws.1 to 14 and marked Exs.P1 to P14, 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 imprisonment as aforementioned. 8. The State Legal Services Authority gave legal aid for the appellant by appointing Sri P.S.Manjula Kumar, in preferring the appeal. Learned counsel for the appellant contends that there is no corroborative evidence to the dying declaration under Ex.P9. In the absence of eyewitnesses, it is unsafe to convict the accused solely basing upon the dying declaration recorded by P.W.8-the Magistrate under Ex.P9 and that P.W.8 has not followed the correct procedure in recording the dying declaration. When the deceased received 90% burns as per the evidence of P.W.13, it is not expected that she will be in a fit and mental condition to give evidence, which is said to have been recorded under Exs.P5 and P9. In the absence of any harassment for dowry meted out to the deceased by the appellant, the appellant cannot be convicted for the offence punishable under Section 498A IPC. Therefore, the accused is entitled for acquittal. 9. Learned Public Prosecutor sustained the conviction and sentence recorded by the trial court contending that the dying declarations under Exs.P5 and P9 and the evidence of P.Ws.1 and 4 are sufficient to convict the accused. 10. In view of the above rival submissions, the point that arises for consideration is: Whether the prosecution is able to bring home the guilt of the accused for the offences, with which he was charged, beyond all reasonable doubt? P O I N T :- 10. P.W.1, the mother of the deceased, deposed that the marriage of the deceased was performed with the accused about six years ago. About five years ago, when she returned from the coolie work at about 08:00 P.M., his eldest daughter P.W.4 informed her that the accused killed the deceased by pouring kerosene on her body and set her ablaze. During her lifetime, the deceased used to complain that the accused has been harassing her both mentally and physically. She further deposed that the accused poured kerosene and set her daughter ablaze at 11:00 A.M. and she died at 07.00 P.M. The deceased did not state anything about the incident to her, as by the time she went she was no more. At that stage, P.W.1 was declared hostile. P.W.2 deposed that having noticed Laxmamma rushing from out of the house with burning flames and fell on the ground, she covered her body with clothes and shifted in an auto to the Osmania General Hospital. Since she has stated that the deceased did not inform to him as to how she got burn injuries, she was declared as hostile. 12. P.W.4, the elder sister of the deceased, deposed that her residence and the residence of the accused and deceased were in the same locality, but in different streets. On 08.01.2002 at about 12:30 P.M., while she was in her house, P.W.12 informed her that the deceased sustained burn injuries. Then she rushed to the house and found the deceased with bare body and burn injuries in the front room and after providing clothes to the naked body of the deceased, she along with P.Ws.2, 11 and others shifted the deceased to the Osmania General Hospital. While they were taking the injured to the hospital, the deceased informed her that in the morning hours there was a quarrel between her and her husband and when she questioned as to why the quarrel took place, the deceased stated that the accused was not doing any work for livelihood and that he snatched Rs.500/- from her, went away and returned after consuming gudumba (arrack), poured one litre of kerosene brought in a bottle on her body and ran away. The deceased died on the same day at about 07:00 P.M. while undergoing treatment. She further deposed that the deceased made the same statement to P.Ws.1, 2 and others. 13. The material witnesses P.Ws.1, 2, 11 and 12 turned hostile and did not support the case of the prosecution. Now there remains the evidence of P.W.13 the Assistant Professor, P.Ws.6 and 8 and the dying declarations recorded by them under Exs.P5 and P7 respectively, basing on which the trial court recorded the conviction against the appellant. 14. 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. 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 the dying declarations made by the deceased is true and free from any inducement, 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. 15. P.W.6, the Sub-Inspector of Police, who was deputed by P.W.7 to record the dying declaration of the deceased, on which basis the crime was registered, deposed about recording the dying declaration of the deceased under Ex.P5, wherein the deceased stated that the accused is a drunkard; used to drink every day; quarrel with her and beat her. She attended the labour work and accused came to the house at 12.30 in the afternoon and snatched away Rs.500/- from her and beaten her severely by abusing her in filthy language saying that she is sleeping with his younger brothers and elder uncle and that he will kill her and poured kerosene from the tin on her and lit fire to her and ran away from the scene. She removed the clothes from her body and after some time her elder sister Lingamma has admitted her in the Osmania General Hospital. 14. P.W.8, the XXII Metropolitan Magistrate, deposed that on the requisition from P.W.7-the S.I. of Police, Chatrinaka Police station on 08.01.2002, he recorded the dying declaration of the deceased under Ex.P9. After the duty doctor endorsed that the patient is conscious and coherent and in mental fit state to give statement, he put some preliminary questions so as to satisfy himself about the fit condition of the patient and after satisfying himself, he recorded the statement of the deceased. When he questioned the deceased, she stated that her husband who was in the habit of suspecting her fidelity, used to harass her and on that date he poured kerosene on her body and lit fire in her house at about 12.00 noon and went away, due to which she sustained burn injuries and that her elder sister brought her to the hospital. 16. The evidence of P.Ws.6 and 8, who recorded the dying declarations under Exs.P5 and P7, coupled with the evidence of P.W.4, clearly discloses that the deceased was conscious at the time of recording the dying declarations. Both the dying declarations are consistent that the accused poured kerosene on the deceased and lit fire and thereby inspire the confidence of the Court that it is the accused who poured kerosene and lit fire to the deceased. 15. P.W.13, the Assistant Professor, who conducted autopsy over the dead body of the deceased, was of the opinion that the deceased died out of shock and consequent to the burn injuries. The evidence of P.W.13 clearly establishes that the deceased was admitted in the hospital immediately after receipt of the burns. Further P.Ws.3 and 5, who are the panch witnesses, also opined that the deceased died due to burn injuries caused by the accused by pouring kerosene on her. 16. In view of the above discussion, we have no hesitation in holding that the prosecution is able to establish that the deceased met with a homicidal death and that the accused poured kerosene on the deceased suspecting her fidelity and, therefore, the conviction and sentence recorded against the appellant by the trial Court for the offences punishable under Sections 498A and 302 IPC, do not call for any interference. We, accordingly, confirm the conviction and sentence recorded by the trial Court against the appellant. 17. In the result, the Criminal Appeal is dismissed confirming the judgment of the trial court in all respects. ____________________ A.GOPAL REDDY, J _______________ K.C.BHANU, J 23rd August 2010 lmv