THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
&
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.826 OF 2013
JUDGMENT:- (Per the Hon'ble Sri Justice A.Santhosh Reddy)
The present criminal appeal arises out of the judgment dated
28.08.2013 in S.C.No.179 of 2011, on the file of the VI-Additional
District and Sessions Judge, Siddipet, whereby the appellants-A-1
and A-2 were convicted for the offence punishable under Section
302 read with Section 34 IPC and sentenced to undergo
imprisonment for life and to pay a fine of Rs.500/- each, in default
to undergo simple imprisonment for two months each.
2. During pendency of the criminal appeal, appellant-A-1 died
and the case against her stood abated.
3. The prosecution case, in brief, is that the appellants
(hereinafter referred to as 'A-1 and A-2') and the de facto
complainant (Jitta Uppalaiah) (hereinafter referred to as 'the
deceased') are residents of Mittapally Village and their houses
are situated adjacent to each other. The deceased was addicted to
alcohol and his wife (P.W.2) left him due to family disputes and
residing at her parental house along with their younger daughter
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(P.W.3). The deceased alone was staying in the house. Two days
prior to 10.11.2010, the deceased came to know that A-1 and A-2
have come to beat him alleging that he outraged the modesty of
A-1. Upon which, he went to the house of P.W.1 and slept there
itself. On 09.11.2010, the deceased slept in his house and at about
02:30 early hours of 10.11.2010, when the deceased woke up
from sleep and came out for attending calls of nature, all of a
sudden, A-1 and A-2 entered into his house with a kerosene can
and a match box, poured kerosene on him while A-1 caught hold
of him and A-2 lit fire. The deceased was shifted to Gandhi
Hospital, Secunderabad for treatment. P.W.14, Head Constable,
recorded the statement of the deceased and on the basis of it,
he registered a case in Cr.No.221 of 2010 for the offence
punishable under Section 307 IPC and took up investigation.
P.W.13, Judicial Magistrate of First Class, recorded the dying
declaration of the deceased. The deceased succumbed to burn
injuries while undergoing treatment on 12.11.2010 at 10:45 p.m.
P.W.15, Sub-Inspector of Police, received death intimation
and on the basis of it, altered the section of law from 307 IPC to
302 IPC on 13.11.12010 and issued express FIRs to all concerned.
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Later, he held inquest over the dead body of the deceased and
thereafter, the deceased was subjected to post-mortem examination
and P.W.16 conducted autopsy over the dead body of the deceased.
P.W.17, Circle Inspector of Police, took up investigation and
during the course of investigation, he apprehended the accused on
24.02.2011, effected their arrest and produced them before
the Magistrate along with the remand report. He examined the
witnesses and recorded their statements. After completion of
investigation, he filed charge sheet.
4. A-1 and A-2 denied the allegations of the charges framed
against them for the offences punishable under Sections 302 read
with Section 34 IPC against A-1 and A-2 and Section 302 IPC
against A-2 and claimed to be tried.
5. During the course of trial, the prosecution examined as many
as 17 witnesses as P.Ws.1 to 17 and marked 22 documents as
Exs.P-1 to P-22 and produced M.Os.1 to 6. On behalf of defence,
no evidence was let in.
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6. On appreciation of the oral and documentary evidence,
the trial court convicted and sentenced the appellants-A-1 & A-2,
as noted hereinabove.
7. We have heard Mrs.M.Bhagyasri, learned counsel for the
appellants-A-1 & A-2 and learned Assistant Prosecutor for the
respondent-State.
8. Learned counsel for the appellants-A-1 & A-2, besides filing written arguments, submits that the prosecution had failed to prove the motive for the alleged occurrence and there are no direct eye-witnesses and basing on the circumstantial evidence and dying declaration, the trial court has believed the prosecution case and convicted the appellants. The learned counsel further submits that the dying declaration of the deceased is not consistent with the medical evidence and majority of the witnesses turned hostile and the evidence of remaining witnesses is not trustworthy and there is no cogent and convincing evidence to convict the appellants. The learned counsel further submits that the prosecution failed to prove the guilt of the appellants-A-1 & A-2 beyond all reasonable doubt and prayed to allow the criminal appeal. 5
9. Learned Assistant Public Prosecutor appearing for the respondent-State opposed the submissions of learned counsel for the appellants-A-1 & A-2 and contended that the prosecution had proved the guilt of the accused with cogent and convincing evidence and the dying declaration of the deceased can be the sole basis for conviction as it inspires confidence and the same is true and voluntary. Learned Assistant Public Prosecutor relied on RAMESH v. STATE OF HARNAYA1 and an unreported decision of this court in Crl.A.No.1023 of 2013.
10. We have considered the submissions of learned counsel for the parties with reference to the evidence on record.
11. The point that arises for consideration is - whether the judgment of the court below is sustainable?
12. Before the trial court, P.W.1 stated that the deceased is his junior paternal uncle and on the date of incident, his neighbour Nagamma (P.W.6) woke him up and informed that the deceased was in flames. Immediately, he rushed to the spot and by the time he rushed there, the neighbours extinguished the fire by pouring 1 AIR 2016 SC 5554 6 water. The deceased was alive with burn injuries and he told that the A-1 & A-2 poured kerosene on him and lit fire. The deceased succumbed to injuries in the hospital while undergoing treatment.
13. P.W.2 is the wife, P.W.3 is the daughter, P.W.4 is the son-in- law and P.W.5 is the brother-in-law of the deceased. They have not supported the prosecution case and turned hostile. P.W.6 is residing near the house of the deceased. She deposed that on the day of incident, she suffered motions and went to attend motions 2 or 3 times and while returning to her house, she noticed that the deceased was in flames. She has also not stated how the deceased caught flames.
14. P.W.14, who is the Head Constable, deposed that he received information about the deceased being admitted in Government Area Hospital, Siddipet with burn injuries. He rushed to the hospital and examined the deceased and recorded her statement in Ex.P-19. On the basis of it, he registered a case in Cr.No.221 of 2010. Ex.P-20 is the FIR. P.W.7 is the then Head Constable who gave requisition to P.W.13 for recording the dying declaration of the deceased.
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15. P.W.13, Judicial Magistrate of First Class, received requisition from P.W.7 and later, she proceeded to Government Area Hospital, Siddipet and in the presence of the duty doctor, she recorded the statement of the deceased.
16. P.W.14 is the Head Constable who secured the presence of P.Ws.1 and 2 and conducted scene of offence panchanama in the presence of P.Ws.9 and 10 and seized M.Os.1 to 6. Ex.P-13 is the scene of offence panchanama and Ex.P-21 is rough sketch. The panch witness for the scene of offence P.W.9 deposed that he was present at the time of conducting scene of offence panchanama. Another panch witness P.W.10 turned hostile.
17. P.W.15 is the Sub-Inspector of Police and he deposed that he received death intimation of the deceased from Gandhi Hospital and on the basis of it, altered the section of law from 307 IPC to 302 IPC and Ex.P-22 is the alteration memo. P.W.15 held inquest over the dead body of the deceased in the presence of P.Ws.11 and 12. Ex.P-14 is the inquest panchanama. The said panch witnesses did not support the prosecution case and they turned hostile.
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18. P.W.16 is the Assistant Professor, Gandhi Medical College, Hyderabad who conducted autopsy over the dead body of the deceased and opined that the deceased died on account of burns.
19. The material witnesses P.Ws.1 to 5 have not supported the case of the prosecution and they turned hostile. However, in their evidence, it is their specific case that the deceased sustained burned injures and later succumbed to the same. The evidence of P.W.16 coupled with Ex.P-23 post mortem examination report would make it clear that the deceased sustained burn injuries in front of his house in the early hours on 10.11.2010 and was shifted to Gandhi Hospital and he died on 12.11.2010 at about 10:45 p.m., while undergoing treatment for burn injuries. In the present case, though most of the witnesses turned hostile, and as there is cogent and convincing evidence to believe that the deceased Jitta Uppalaiah succumbed to burn injuries, in the said circumstances, the crucial aspect to be considered is whether A-1 and A-2 are responsible for his death.
20. As regards commission of the offence by the appellants-A-1 & A-2, the relevant evidence to be considered is that of P.Ws.1, 6, 9 13 and 16 and among them, most crucial is the dying declaration of the deceased recorded by P.W.13.
21. P.W.13, Judicial Magistrate of First Class, deposed that she received requisition from P.W.7 at 04:20 a.m., to record the dying declaration of deceased J.Uppalaiah. Then, she proceeded to Government Area Hospital, Siddipet and reached at 04:30 a.m., and the injured was identified by the duty doctor Dr.B.Kavitha. After ascertaining that the patient was conscious and in a fit state of mind to give statement, she proceeded to record the statement. The duty doctor certified that the patient was conscious, coherent and in a fit state of mind to give the statement. After being satisfied that the patient was in a fit state of mind to give the statement, she recorded the statement of the declarant in verbatim. Ex.P-16 is the certification of the doctor before recording the dying declaration, Ex.P-17 is the certification of the doctor after recording the dying declaration and Ex.P-18 is the dying declaration. P.W.13 read over and explained the contents of Ex.P-17 to the deceased and concluded the proceedings at 05:00 a.m., after completing all formalities. Ex.P-16 the certification of the doctor would make it clear that the patient 10 was conscious, coherent and in a fit state of mind throughout recording of the dying declaration. The doctor has also made an endorsement that he was present through out recording of statement.
22. The deceased in the dying declaration has specifically stated that A-1 and A-2 poured kerosene on him and A-2 lit fire and set him ablaze while A-1 caught hold of him at that time. Thereafter, they left the place. Prior to that, when the said persons tried to attack him, he slept in the house of his brother's son. On the day of incident, A-1 and A-2 came to his house and when he woke up to attend the calls of nature, the above persons poured kerosene and committed the offence. The deceased sustained burn injuries and succumbed to the same in the hospital. Ex.P-18 is the deponent's statement in the dying declaration.
23. Learned counsel for the appellant-accused vehemently contended that there is no corroboration with any of the witnesses to the dying declaration and the conviction cannot be passed solely based on the dying declaration alone. The material witnesses have not supported the case of the prosecution and there is no direct 11 evidence and on solitary piece of evidence of the dying declaration, the accused cannot be convicted.
24. We are conscious of the fact that the court should be more careful and cautious in convicting a person solely on the basis of the dying declaration and there cannot be any absolute law that the dying declaration can be the sole basis for conviction, unless it is corroborated.
25. The Hon'ble Supreme Court in the case of POONAM BAI v. STATE OF CHHATTISGARH2 has summarised the principles relating to dying declaration especially when it is the sole basis for conviction. Paragraph 10 of the aforesaid judgment is reproduced as under:-
" 10. There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the 2 (2019) 6 SCC 145 12 facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his Maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to cross-examination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires full confidence of the court. In the matter on hand, since Ext. P-2, the dying declaration is the only circumstance relied upon by the prosecution, in order to satisfy our conscience, we have considered the material on record keeping in mind the well-established principles regarding the acceptability of dying declarations."
26. Keeping in view the aforesaid Judgment, as in the present case the dying declaration is truthful, trustworthy, voluntary, blemishless and reliable, the question of discarding the same does not arise.
27. The Hon'ble Supreme Court in the case of MADAN @ MADHU PATEKAR V. STATE OF MAHARASHTRA3 has dealt with the issue of dying declaration and has held that it can be the sole basis of conviction. Paragraphs 10, 11 and 12 of the aforesaid judgment read as under:-
"10. The rule of admissibility of dying declaration is no more res integra. In the adjudication of a criminal case, dying declaration plays a crucial role. A dying 3 (2019) 13 SCC 464 13 declaration made by a person as to cause of his/her death or as to any of the circumstances which resulted in his/her death, in cases in which cause of death comes in question, is relevant under Section 32 of the Evidence Act. It has been emphasised number of times that dying declaration is an exception to the rule against admissibility of hearsay evidence. The whole development of the notion that the dying declaration, as an exception to the hearsay rule, is based on the formalistic view that the determination of certain classes of evidence as admissible or inadmissible and not on the apparent credibility of particular evidence tendered.
11. We are aware of the fact that the physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence. In order to ameliorate such concerns, this Court has cautioned in umpteen number of cases to have a cautious approach when considering a conviction solely based on dying declaration. Although there is no absolute rule of law that the dying declaration cannot form the sole basis for conviction unless it is corroborated, the courts must be cautious and must rely on the same if it inspires confidence in the mind of the Court [see: Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 : 1998 SCC (Cri) 1085 and Suresh Chandra Jana v. State of W.B. 14
(2017) 16 SCC 466 : (2018) 2 SCC (Cri) 187].
12. Moreover, this Court has consistently laid down that a dying declaration can form basis of conviction, if in the opinion of the Court, it inspires confidence that the deceased at the time of making such declaration, was in a fit state of mind and there was no tutoring or prompting. If the dying declaration creates any suspicion in the mind of Court as to its correctness and genuineness, it should not be acted upon without corroborative evidence [see also: Atbir v. Govt. (NCT of Delhi) , (2010) 9 SCC 1:(2010) 3 SCC (Cri) 1110, Paniben v. State of Gujarat (1992) 2 SCC 474 : 1992 SCC (Cri) 403 and Panneerselvam v. State of T.N., (2008) 17 SCC 190 : (2010) 4 SCC (Cri) 496]."
28. In the light of the aforesaid judgment, keeping in view the fact that the dying declaration was recorded by the learned Magistrate, the deceased has named the accused as culprit, the deceased at the time of recording the dying declaration was in full senses, there is no reason to disbelieve the dying declaration.
29. Apart from the dying declaration, there is also the evidence of P.W.1, who has reached the scene of offence immediately on receiving the information from P.W.6, who had seen the deceased in flames and informed to P.W.1. P.W.1 immediately rushed to the scene of offence and enquired with the deceased and by that time, 15 the neighbours extinguished the fire by pouring water. Later, when he enquired with the deceased, he was informed that A-1 & A-2 poured kerosene on him while he was rising from bed to attend the calls of nature. Then, the deceased was shifted to the hospital. P.W.6 first noticed that the deceased was in flames and she informed P.W.1. Further, P.W.1 stated in his evidence that A-1 and A-2 poured kerosene and caused burn injuries to the deceased. In cross-examination of both these witnesses, nothing material was elicited to disbelieve their testimony. Therefore, the evidence of P.Ws.1 and 6 corroborates the dying declaration of the deceased recorded by the learned Magistrate P.W.13.
30. In the instant case, undoubtedly the material witnesses P.Ws.2 to 5 did not support the case of prosecution and they turned hostile. However, the evidence of P.Ws.1, 6 and the dying declaration Ex.P-18 recorded by P.W.13 categorically proves the fact that A-1 and A-2 are responsible for causing burn injuries, as a result of which, the deceased died. As already stated, the dying declaration recorded by P.W.13 is a crucial piece of evidence and her sole testimony, coupled with Exs.P-16 to 18 wherein the doctor found that the deceased was in conscious state of mind and was 16 competent to give the statement. The learned Magistrate had taken precautions and, in fact, the Medical Officer remained present when the dying declaration was being recorded. Therefore, the dying declaration has been proved with cogent evidence of the learned Magistrate P.W.13 and the defence has not been able to elicit anything from the cross-examination of the doctor and the learned Magistrate that the deceased was not in a fit state of mind and was not coherent or conscious at time of time of giving statement. Therefore, this court is satisfied with the dying declaration and it appears to be true and voluntary and free any inducement and nothing is placed from the defence side before the court to suspect the statement and the same do not suffer from any infirmity. P.W.16, the doctor who held autopsy over the dead body of the deceased, has also deposed that the deceased sustained 70% to 80% burn injuries. P.W.16 also stated that the cause of death to the best of his knowledge and belief is due to burns. Ex.P.23 is the post mortem report. As such, we are of the view that there shall be no legal impediment even to make the dying declaration as the sole basis for conviction even though there is no corroboration. However, apart from the dying declaration, there 17 is cogent and convincing evidence of P.Ws.1, 6, 13 and 16 and the same clearly establishes and proves the prosecution case that appellants-A-1 and A-2 poured kerosene and A-2 set ablaze the deceased as a result of which the deceased sustained burn injuries and later succumbed to the same. Therefore, there is no reason to discard the dying declaration in this case.
31. For the foregoing reasons, we are of the considered opinion that the trial court after appreciating the material on record in proper perspective had rightly convicted the appellant-accused. This court does not find any reasons to set aside the judgment of conviction and as such, the criminal appeal is liable to be dismissed.
32. In the result, the criminal appeal is dismissed.
33. Pending miscellaneous petitions, if any, stand closed.
______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ______________________________ JUSTICE A.SANTHOSH REDDY 14.10.2022 Lrkm