IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE 25TH 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.478 of 2007 Between: Tata Ravi. … Appellant/A1 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.478 of 2007 ORDER: - (Per Hon’ble Sri Justice A.GOPAL REDDY) Appellant/A1, who faced the trial along with A2 to A6 for the offences punishable under Sections 302, 307, 436 and 498A IPC by judgment, dated 13.02.2007, passed in Sessions Case No.225 of 1999 on the file of I Additional Sessions Judge, Krishna, Machilipatnam, was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one month for the offence punishable under Section 302 IPC; to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one month for the offence punishable under Section 307 IPC and further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one month for the offence punishable under Section 436 IPC, while A2 to A6 were acquitted of the charges framed against them and the appellant/A1 was acquitted for the offence punishable under Section 498A IPC, filed this Criminal Appeal questioning the conviction and sentence recorded against him. 2. The substance of the charges framed against the accused is that A1 being the husband, A2 to A4 being the brother-in-law of one Tata Venkateswaranna subjected her to cruelty and harassed her for dowry. And on 13th June 1998 at about 11:00 P.M. in furtherance of their common intention caused the death of Tata Venkateswaramma (D1), Janpana Koteswaramma (D2), Janpana Naga Siva (D3) (hereinafter referred to as “D1, D2, D3” respectively) by pouring petrol and set fire on them while they were sleeping in their house Varandah in Nadakuduru village and further committed mischief by fire by pouring petrol and setting fire to the building. During the course of same transaction they further attempted to cause the death of one Jampana Pamulu (P.W.1) and Janpana Sreenu by pouring petrol on them. 3. The prosecution story as unfolded during the course of trial is briefly stated as under: - P.W.1 is the father of D1 and D3, husband of D2. P.W.2 is the brother of D1 & D3 and son of D2. P.W.7 is the sister of D2. About two years prior to the date of the incident, the deceased was given in marriage to A1 and at the time of marriage an amount of Rs.30,000/-, ten sovereigns of gold were given. Subsequently, after the marriage they lived happily for one year and later as the accused incurred loss in prawn culture business, A1 insisted D1 to give more amounts stating that the amount given at the time of marriage was less. As such, the deceased (D1) went back to her parents house. Twenty days thereafter A1 went to P.W.1 and requested them to send D1 with him, but P.W.1 refused to send her with him as he was harassing her and further informed him to get the elders for talks and after that only, he would send his daughter-D1 with him. On the date of incident, P.Ws.1 and 2 were sleeping on one cot, D1 and D2 were sleeping in one cot and D3 was sleeping on another cot in front of their house. Then on hearing the cries of the deceased, P.Ws.1 and 2 woke up and noticed A1 and A6 and A1 holding a bucket in his hand. According to P.W.2, A6 poured some liquid on their cot and A1 lit fire. Thereafter they both fled away. They further noticed D1 to D3 were also in flames. In the meanwhile on hearing the cries, the neighbours P.Ws.3 to 6 also rushed to the scene and according to P.W.7, D2 informed her that A1 and another poured petrol on their house and lit fire. Then at about 01:00 A.M., P.Ws.1 and 2, D2 and D3 all rushed to Challapalli police station and there P.W.16-the Sub- Inspector of Police, recorded the statement of D2 under Ex.P20. Basing on it, he registered a case in crime No.83 of 1998 and issued F.I.R., under Ex.P21. Thereafter, he referred the injured to the Government Headquarters hospital, Machilipatnam, wherein P.Ws.13 and 14 Deputy Civil Surgeon examined P.Ws.1 and 2 and issued wound certificates under Exs.P18 and P19 respectively. On 14.06.1998, P.W.17 the S.D.P.O., Avanigadda took up the investigation. During the course of investigation, he examined the scene of offence; prepared observation report under Ex.P9; sent a requisition to the Mandal Revenue Officer for conducting inquest over the dead body of D1; examined the witnesses P.Ws.3 to 9, Satyavathi and five others and recorded their statements. P.W.15, the Mandal Revenue Officer, on receipt of requisition from P.W.17, held inquest over the dead body of D1 and issued Ex.P10 inquest report. On 14.06.1998 at about 05:10 A.M. on requisition from the Duty Medical Officer, District Head quarters Hospital, Machilipatnam for recording the statement of D3, P.W.18-the Judicial Magistrate of First Class, recorded the Dying Declaration of D3 under Ex.P29. On receiving the death intimation of D2 & D3, P.W.17 rushed to the hospital and on 15.06.1998 held inquest over the dead body of D2 and D3 under Ex.P11 and P12 respectively. On 15.06.1998, P.W.16 and P.W.15 the C.A.S. Government Area hospital held autopsy over D2 and D3 and issued Exs.P17 and P16 post mortem reports respectively, opining that the cause of death was due to shock and due to extensive burns. On 22.06.1998, P.W.17 arrested A1 to A4 and A6 and in pursuance of the statement made by A1, at his instance the plastic tin was recovered from the sugarcane land in the presence of P.W.10 under Ex.P14 panchanama. On 25.07.1998, A5 was arrested. After receiving relevant documents and on completion of investigation, P.W.17 filed the charge sheet. 4. To substantiate its case, the prosecution examined 18 witnesses as P.Ws.1 to 18 and got marked Exs.P1 to P30. On behalf of defence, D.W.1 was examined and got marked Exs.D1 to D9 besides the material objects M.Os.1 to 11. 5. On completion of the trial, the learned Sessions Judge convicted the appellant/A1 and acquitted A2 to A6 by judgment, dated 31.10.2002, against which, the appellant/A1 filed Criminal Appeal No.1382 of 2002 and against the acquittal of A2 to A6, the State filed Criminal Appeal No.2606 of 2004. 6. A Division Bench of this Court heard both the criminal appeals. One of the learned Judges was of the view that the dying declarations marked under Exs.P20 and P29 cannot be relied upon, since the contents of those documents have not been put to the accused when they were examined under Section 313 Cr.P.C. and that due to the lapse of seven years it is not just to remand the case and accordingly, set aside the conviction and sentence recorded against the appellant. Whereas, another learned judge was of the view that it was a fit case to remand the matter to the trial court to enable the Court to put relevant questions to accused Nos.1 to 6 touching on the dying declarations under Exs.P20 and P29. In view of the difference of opinion, the matter was referred to my learned brother (i.e., KCB,J), who aggrieved with the view taken by one of the learned Judges, held that all the accused should be examined on the incriminating evidence and set aside the order of the acquittal of A2 to A6 and remitted the matter to the trial court for examination of A1 to A6 under Section 313 Cr.P.C., afresh and for its disposal. 7. On such remand, the accused were examined afresh under Section 313 Cr.P.C. on 12.09.2006 and they denied the evidence on record. But no further defence evidence is produced on behalf of the accused. However, on behalf of A3, four documents were produced which were marked as Exs.D5 to D9. 8. The learned Sessions Judge on appreciation of the oral and documentary evidence, while acquitting A2 to A6, convicted the appellant/A1 and sentenced him to imprisonment as aforementioned. 9. Sri C.Praveen Kumar, learned counsel for the appellant contends that the entire case of the prosecution rests upon the two dying declarations of Jampana Koteswaramma (D2) and J.Naga Siva (D3), recorded by P.Ws.16 and 18 under Ex.P20 and P30 respectively and the oral evidence of P.Ws.1 and 2. Once the evidence of P.Ws.1 and 2, who implicated A1 to A6, has been disbelieved about the participation of A2 to A6 and acquitted them, the said evidence cannot be relied upon to convict the appellant/A1 alone. Ex.P20-Dying declaration of D2 recorded by the Sub-Inspector of Police-P.W.16, appears to be a suspicion as the Doctor- P.W.12 stated that D2 was in-coherent. Under Ex.P30 – dying declaration of D3, D3 implicated A1 and two others i.e., A3 and A5 for pouring petrol on him and liting fire, whereas under Ex.P20, which was recorded between 1.00 and 1.30 A.M. on 14.06.1998 and on which basis crime was registered, D2 implicated A1 to A4 for the commission of offence. When P.W.17 recorded the statement of D3, as admitted by him, the same has not been placed before the court nor supplied to the accused, since it is not favourable to the prosecution. When both the dying declarations are disbelieved in respect of the other accused, convicting the appellant on the ground that the dying declarations and the evidence of P.Ws.1 and 2 are consistent about the participation of the appellant in the commission of offence, cannot be justified. In support of the said submission, reliance is placed on Thurukanni Pompiah and another v. State of Mysore[1]. 10. Per contra, Sri H.Prahlada Reddy, learned Additional Public Prosecutor contends that P.Ws.1 and 2 are natural witnesses i.e., P.W.1 is the father of D1 and husband of D2 and P.W.2 is the brother of D1 and D3, and son of D2. Merely because they were declared hostile, their evidence cannot be brushed aside. When their evidence is corroborating the dying declarations under Ex.P20 and P30, the conviction and sentence recorded against the appellant/A1 is sustainable. 11. 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 appellant/A1 for the offences with which he was charged, beyond all reasonable doubt? P O I N T :- 12. It is relevant to note that earlier when the other accused A2 to A6 were acquitted of the charges framed against them, the State preferred an appeal, but against the present impugned Judgment, the State has not preferred any appeal against the acquittal order after remand and the same has become final. 13. The entire case rests upon the two dying declarations viz., Ex.P20-dying declaration of D2 and Ex.P30-dying declaration of D3, recorded by P.Ws.16 and 18, coupled with the evidence of P.Ws.1 and 2. 14. P.W.1, who is the father of D1 and husband of D2, deposed that himself, P.Ws.2, 3, 5, Sreenu and Nageswaramma are his neighbours. The deceased Venkateswaramma (D1) is his daughter, Koteswaramma (D2) is his wife and Naga Siva (D3) is his elder son. A1 is his son-in-law, who is no other than the husband of the deceased daughter Venkateswaramma. A6 came to their house at the time of marriage of A1, but he do not know his name and that he do not know the remaining accused in the case. He further deposed that the marriage of D1 was performed with A1 at his house. At the time of marriage, he gave an amount of Rs.30,000/- and the balance was promised to be paid later. Apart from the above amount, he gave 10 sovereigns of Gold to A1 towards dowry and after the marriage he paid the balance of Rs.30,000/- to A1. A1 and D1 lived happily for one year. Thereafter, the deceased daughter told him that A1 harassed her for getting more money, as he sustained loss and within ten days, she came back to their house. Twenty days thereafter A1 came to his house and asked them to send back his daughter to A1’s house. But he informed A1 that he is harassing his daughter and that after having talks with the elders, he will send his daughter. But later on he did not turn up to his house. On the date of the incident, at about 11:00 or 12:00 mid night when himself and his younger son are on one cot, his wife and his daughter are on one cot and his third son was sleeping on another cot in front of their house towards Eastern side. Due to falling of rain they all shifted their cots towards western side of Varandah in his house. While he was sleeping, he heard cries of all the deceased, then immediately he woke up and noticed A1 and A6 and noticed one bucket in the hands of A1. He noticed flames in the varanadah and the bodies of his wife and eldest son rolled and came out from out of the flames. But he has not noticed the deceased daughter with flames. He received burn injuries on his left side and rescued P.W.2 who sustained injury on his back. Meanwhile, the neighbours came there and took him, his wife and his eldest son. But he became unconscious after noticing the flames on the bodies of his eldest son of his wife. On his regaining conscious after one hour he was taken to the medical officer available in their village, whereas his wife and eldest son were shifted to Government Hospital for treatment. Two or three days thereafter he came to know that his daughter died at his house and his wife and son died in the Government Hospital, Machilipatnam while undergoing treatment. At that stage, P.W.1 was declared hostile. 15. P.W.2, who is the younger son of P.W.1 and who was also declared hostile, deposed that on 13.06.1998 at about 11.00 P.M., while they were sleeping on cots, he saw some wetness, then he immediately woke up and noticed A1 litting fire and A6 pouring some liquid on their cots and thereafter they both ran towards sugar cane land. He also noticed the bodies of his mother and sister were rolled towards in front of their house on the eastern side. He woke up his father-P.W.1 and noticed the dead bodies of his mother, sister and brother. He sustained one injury on his back. In the cross-examination, he denied that he has not stated before the police as in Ex.D3 and he noticed A1 and A6 at the cot of his deceased brother and denied that he has not stated before the police that A6 was present at the time of alleged incident. P.Ws.3, 4, 5, 6 and 8 were also declared hostile. 16. Under Ex.P20- the Dying declaration of D2, recorded by P.W.16, D2 made a detailed statement about the marriage disputes between the deceased and the accused. She further stated that on 13.06.1998 night after dinner herself and her daughter slept on one cot and her husband and her younger son on one cot and her elder son Nagasiva on another cot in the varandah. In the night at about 11:00 P.M. there was sound near her cot by the side of head. When she opened her eyes her son-in-law was near her head, A2 was standing there. They are holding tins in their hands. A3 was standing near the cot of D3. A4 was standing near the cot of her husband with a tin. When she raised cries with fear they sprinkled petrol on them with tins and lit fire. While going they stated “chavandi mundallara meerandaru chavalani eepani chesinamu”. Whereas under Ex.P30-the dying declaration of D3, recorded by P.W.18, D3 stated that his elder sister marriage was performed two years back. After marriage his brother-in- law Ravi harassed and beat his sister to get money. He asked her to request their mother. Rain was coming on that night. A1 and two others came to their house on that night. They were sleeping on the Nulaka cot and he was sleeping nearby his sister’s cot. His brother-in-law-A1 came to his sister and tried to pour petrol on his sister. A1 poured petrol on him and later lit fire. A1 and two others i.e., A3 and A5 poured petrol on him and lit fire. The said statement was recorded on 14.06.1998 at 05:40 A.M. 18. P.W.16, the Sub-Inspector of Police deposed that on 13/14.06.1998 at about 01:00 A.M. the injured, D2, D3, P.Ws.1 and 2 came to the police station with burn injuries and he recorded the statement of D2 under Ex.P20 and registered a case in Crime No.83 of 1998 and issued express F.I.R. – Ex.P21 to all the concerned and sent the injured to the Government headquarters hospital, Machilipatnam for their treatment. . He further deposed that under Ex.P20 D2 deposed that A1 to A4 are responsible for her death. P.W.18, who recorded the statement of D3 stated that on receipt of the hospital intimation under Ex.P28, he recorded the dying declaration and after putting some preliminary questions to know the state of mind of D3 and basing on the answers given by D3 to his questions recorded in the dying declaration, he was satisfied that D3 was in a conscious state of mind and he was in a fit state of mind to make his statement and recorded his statement under Ex.P29. After recording the statement of D3, he obtained his thumb mark. He also obtained the endorsement of the duty medical doctor under Ex.P27. The entire document is marked as Ex.P30. 19. P.W.12, the Doctor who conducted post mortem examination on the dead body of D2 deposed that the extent of burns is 98%. In the cross-examination, he admitted that almost all the organs were congested, including the brain. Due to 98% burns the death might have been caused instantaneously. The patient may be conscious, but was in-coherent. 20. P.W.17, the S.D.P.O., who took up investigation from P.W.16, deposed that on 14.06.1998 at 03:00 hours on receiving the reliable information on phone about the offence, he proceeded to Nadakuduru village and on receipt of the express F.I.R. from the Sub-Inspector of Police, Challappalli, he conducted investigation. During the course of investigation, he examined the scene of offence; issued requisition to the Mandal Revenue Officer, for conducting inquest over the dead body of the deceased; secured the presence of witnesses viz., P.Ws.3 to 9, Satyavathi and five others and recorded their detailed statements; after receiving the death intimation of D2 he rushed to the Government General Hospital, Machilipatnam and conducted inquest over the dead body of D3 and D2; proceeded to the village of Nadakuduru and examined P.Ws.8 and another and recorded their detailed statements; arrested A1, A2, A3, A4 and A6 on 22.06.1998 in the presence of mediators; on the confession of A1, he seized the material objects; arrested A5 on 25.07.1998; and after receipt of necessary documents and on completion of investigation he filed the charge sheet. 21. The learned Sessions Judge after considering the evidence on record held that the evidence of the prosecution witnesses is not consistent with regard to the participation of A2 to A6. As per Ex.P20 the earlier statement recorded from D2, it is A1 to A4, who have committed the crime; the evidence of P.Ws.1 and 2, who are the direct eye witnesses and also the injured, it is A1 and A5 who have perpetrated the crime; as per the version of D3 under Ex.P30 the dying declaration recorded by P.W.18,it is A1, A3 and A5 who are responsible for the fire; as per the panch witness P.W.10 and the S.D.P.O. P.W.17, it is A1 who confessed and led them to the recovery of the material objects, which incriminates him. Since the evidence against A2 to A6 being inconsistent and not corroborated, they are entitled for benefit of doubt. However, there is consistency insofar as A1 is concerned and the evidence of the prosecution witnesses is cogent and convincing. Exs.P20, P30 and P13 the relevant portion of the confession and the evidence of P.Ws.1 and 2 clinchingly establish that A1 is the author of the crime. 22. It is now fairly well settled that the principle of “falsus in uno falsus in omnibus” (false in one thing, false in everything) has no application in India, as the same has not received general acceptance by the Indian Courts nor the said maxim occupies the status of the rule of law, it is only rule of caution. If a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, his conviction can be maintained. It is the duty of the Court to separate grain from chaff. On such separation, it is open for the Court to convict an accused notwithstanding the fact that the evidence has been found to be deficient or to be not wholly credible. 23. It is fairly 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. Truth sits on the lips of dying man as said by Mathew Arnold:- “The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice (See Lyre LCR in R. v. Wood Cock (1789) I-Leach 500).” The Apex Court in Paniben v. State of Gujarat[2] at para 17 observed as under: “17. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring-corroboration is merely a rule of prudence.” 24. Admittedly, the D2, who made a dying declaration under Ex.P20, received 98% burn injuries and a detailed statement has been recorded by P.W.16, wherein she stated about the harassment meted out to her at the hands of A1 from the date of her marriage with A1 and the words uttered by the accused after litting fire to them. As rightly contended by the learned counsel there