Gunda Perumalla Dhanalakshmi, ... vs The State Of A.P. Through Police ...
2023 Latest Caselaw 1009 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                             ****

CRIMINAL APPEAL No.1046 OF 2010

Between:

Gunda @ Perumalla Dhanalakshmi, W/o Sambasivarao, aged 25 years, R/o Gurazala, near Poleramma Temple, 18th Ward, Vaddavalli, Sattenapalli, Guntur District. .... Appellant/Accused.

Versus

The State of Andhra Pradesh, through Police, Sattenapalli, represented by Public Prosecutor, High Court of Andhra Pradesh. ... Respondent/complainant.

DATE OF ORDER PRONOUNCED : 22.02.2023

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers may be allowed to see the Order? Yes/No

2. Whether the copy of Order may be marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the Fair copy of the order? Yes/No

___________________________ A.V.RAVINDRA BABU, J

* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

+ CRIMINAL APPEAL No.1046 OF 2010

% 22.02.2023

# Between:

Gunda @ Perumalla Dhanalakshmi, W/o Sambasivarao, aged 25 years, R/o Gurazala, near Poleramma Temple, 18th Ward, Vaddavalli, Sattenapalli, Guntur District. .... Appellant/Accused.

Versus

The State of Andhra Pradesh, through Police, Sattenapalli, represented by Public Prosecutor, High Court of Andhra Pradesh. ... Respondent/complainant.

! Counsel for the Petitioner : Sri P.S.P. Suresh Kumar

^ Counsel for the Respondent : Public Prosecutor

< Gist:

> Head Note:

? Cases referred:

(2002) 6 Supreme Court Cases 470 2022 SCC OnLine SC 1000 (2004) 13 Supreme Court Cases 314 AIR 2009 SC 1487 AIR 2009 SC 1626 AIR 2009, 1725

This Court made the following:

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL APPEAL NO.1046 OF 2010

JUDGMENT:-

This Criminal Appeal is filed by the appellant, who was the

Accused in Sessions Case No.185 of 2010, on the file of Sessions

Judge, Guntur, challenging the judgment, dated 02.08.2010,

where under the learned Sessions Judge, Guntur, found the

accused guilty of the offence under Section 304 part I of Indian

Penal Code ("I.P.C." for short) i.e., culpable homicide not

amounting to murder, as against the original charge under

Section 302 of I.P.C. and accordingly, convicted the appellant

under Section 235(2) of Code of Criminal Procedure ("Cr.P.C."

for short) for the offence under Section 304 part I of I.P.C. and

after questioning her about the quantum of sentence, sentenced

her to suffer rigorous imprisonment for 10 years and to pay fine

of Rs.1,000/- in default to suffer simple imprisonment for six

months.

2) The parties to this Criminal Appeal will hereinafter

be referred as described before the trial Court for the sake of

convenience.

3) The Sessions Case No.185 of 2010 arose out of a

committal order in P.R.C.No.6 of 2010, on the file of Judicial

Magistrate of First Class-cum-I Additional Junior Civil Judge,

Sattenapalli, pertaining to Crime No.110 of 2009 of Sattenapalli

Town Police Station.

4) The case of the prosecution, in brief, according to

the contents of the charge sheet filed by the State, represented

by Inspector of Police, Sattenapalli in the above said crime

number is as follows:

(i) The accused married Perumalla Sambasiva Rao

(hereinafter will be referred to as "deceased") on 27.11.2008

and thereafter the marriage was consummated. Prior to the

marriage, deceased Perumalla Sambasiva Rao i.e., the husband

of the accused accepted to take his share of the properties and

agreed to come down to Gurazala to live with the accused. After

the marriage, the deceased was claiming that as he is the

youngest son of L.W.1-Perumalla Guravamma, it is his

responsibility to take care of the welfare of his aged mother,

who is living with the deceased, in their own house at

Vaddavalli, Sattenapalli. Accused used to demand the deceased

to take share of his property and to come down to Gurazala so

as to live with her there. L.W.2-L. Padma, L.W.5-Perumalla

Srinivasa Rao and L.W.6-Perumalla Naga Raju, had knowledge

of these facts. Thus, differences arose among the accused and

the deceased over this issue. Quarrels used to take place in

normal practice in their house. The reprimands of L.W.5 and

L.W.6 failed to bring the required change in the attitude of the

accused.

(ii) While so, on 21.06.2009 at about 10-00 A.M., while

the deceased and the accused were in the house, accused

picked up quarrel with the deceased finding fault with him for

his inability to get his share of property and to come and live

with her in Gurazala. In the said quarrel, the deceased slapped

the accused and then in a fit of anger, the accused poured

kerosene on the deceased, who was sitting in the verandah of

the house and lit fire, resulting causing burn injuries to the

deceased. L.W.1, L.W.2, L.W.3-Attaluri Anil Kumar and L.W.4-

Sunkara Malleswara Chary extinguished flames and shifted the

deceased to Community Health Center, where the deceased

gave a statement to the police.

(iii) L.W.13-I. Venkateswarlu, S.I. of Police, registered the

statement of deceased as a case in Crime No.110 of 2009 under

Section 307 of I.P.C. of Sattenapalli Town Police Station and

investigated the case. He visited the scene of offence, inspected

it under the cover of mahazar attested by L.W.7-Perumalla

Satyanarayana and L.W.8-Shaik Moulali. He seized the kerosene

tin with half liter of kerosene in it. He also seized a khaki colour

saree with snuff colour design which was emanated with

kerosene smell and the burnt red waist thread, chameli match

box and two burnt match sticks and the maroon and black

dotted burnt lungi from the scene of offence in the presence of

L.W.7 and L.W.8. L.W.13 prepared rough sketch of the same.

He examined L.W.1, L.W.2 and L.W.5 and recorded their

statements. In the meantime, the deceased gave Dying

Declaration before L.W.11-B. Sandhu Babu, the then Judicial

Magistrate of First Class, Sattenapalli. The deceased was shifted

to Government General Hospital, Guntur, for better treatment

where he succumbed to injuries at 4-30 P.M., on 22.06.2009

while undergoing treatment.

(iv) On receipt of death intimation, L.W.13 re-registered

the case under Section 302 of I.P.C. and L.W.14 Inspector of

Police continued the investigation. During further investigation,

the Inspector of Police, inspected the scene of offence and found

it tallied. He re-examined L.W.1, L.W.2 and L.W.5 and recorded

their statements. He further examined L.W.3, L.W.4 and L.W.6.

He held inquest over the dead body of the deceased in the

presence of L.W.7, L.W.9-Shaik Baji and L.W.10-Shaik Sydulu

and forwarded the body of the deceased for postmortem

examination.

(v) On 25.06.2009 on prior information and after proper

identification, he arrested the accused in the presence of L.W.7

and L.W.9 in front of Poleramma temple in Vaddavalli,

Sattenapalli, under the cover of mahazar attested by the said

mediators. He forwarded the accused for remand. L.W.12, who

conducted autopsy over the dead body of the deceased, opined

that cause of death is due to shock due to burns. L.W.15, the

successor of L.W.14, filed charge sheet on receipt of

postmortem report.

5) The learned Judicial Magistrate of First Class,

Sattenapalli, took cognizance for the offence under Section 302

of I.P.C. and after complying necessary formalities under

Section 207 of Cr.P.C. and exercising the powers under Section

209 of Cr.P.C., committed the case to the Court of Sessions as

the case was exclusively triable by the Court of Sessions.

6) Before the learned Sessions Judge, Guntur, on

appearance of the accused, a charge under Section 302 of I.P.C.

was framed and explained to her in Telugu for which she denied

the same, pleaded not guilty and claimed to be tried.

7) To bring home the guilt of the accused, during the

course of trial, on behalf of the prosecution, P.W.1 to P.W.8

were examined and Ex.P.1 to Ex.P.15 were marked and further

M.O.1 to M.O.6 were marked. After closure of evidence of the

prosecution, accused was examined under Section 313 of

Cr.P.C. with reference to the incriminating circumstances

appearing in the evidence let in, for which she denied the same

and stated that she has nothing to say and she has no defence

witnesses.

8) The learned Sessions Judge, Guntur, on hearing

both sides and on considering the oral as well as documentary

evidence, found the accused guilty of the offence under Section

304 Part I of I.P.C. i.e., culpable homicide not amounting to

murder as against the original charge under Section 302 of

I.P.C. and accordingly convicted her under Section 235(2) of

Cr.P.C. and after questioning her about the quantum of

sentence, sentenced her to suffer rigorous imprisonment for 10

years and to pay fine of Rs.1,000/- in default to suffer simple

imprisonment for a period of six months. Felt aggrieved of the

same, the unsuccessful accused, filed the present Criminal

Appeal, challenging the judgment, dated 02.08.2010 of the

learned Sessions Judge, Guntur.

9) Now, in deciding this Criminal Appeal, the point that

arises for consideration is whether the prosecution before the

Court below proved that on 21.06.2009 at 10-00 A.M., the

accused poured kerosene over her husband i.e., Perumalla

Sambasiva Rao (deceased) and lit fire and caused the death of

her husband in the manner as alleged by the prosecution?

POINT:-

10) Sri P.S.P. Suresh Kumar, learned counsel appearing

for the appellant, would contend that P.W.1, the mother of the

deceased, did not support the case of the prosecution and she

claimed that she was having bath in the bathroom by then.

Except the Dying Declaration two in number, one was recorded

by the police and another was recorded by the concerned

Judicial Magistrate of First Class, there remained nothing on

record to prove the offence in question against the accused.

The learned Magistrate did not take proper care in recording the

dying declaration and he claimed that simply he posed four

questions which are common in nature. He did not ascertain as

to whether the deceased with serious burn injuries was in fit

state of mind to give statement in writing. Even according to

the case of the prosecution, he received 80% of the burn

injuries. So, there is every doubt as to whether he was in fit

state of mind to give his statement properly. The learned

Magistrate did not disclose to the deponent on his own accord

that he is a Magistrate. On the other hand, he claimed that

when he posed a question as to whether he (deceased) know

him, he replied that he is a Judge. So, the deceased was tutored

that a Judge is coming, as such, he gave a statement in a

particular fashion. Even otherwise, there were discrepancies in

the so-called statement recorded by the learned Magistrate and

the statement of the deceased recorded by S.I. of Police on the

demand alleged to be made by the accused for separate

residence. The so-called demand made by the accused for

separate residence was not there in the statement recorded by

the police, but, it was there in the statement recorded by the

Magistrate. So, there were discrepancies which were crucial in

nature. Even according to the learned Magistrate, some persons

were present physically when he went to the hospital to record

the statement. Even it is also evident from the evidence of

P.W.8. So, when some persons were present along with the

deceased by the time, the S.I. of Police and Magistrate went

there at their respective times, naturally, supposition is that the

deceased was tutored as to how to give a statement before the

S.I. of Police and the Magistrate. So, there was every possibility

for tutoring. The leaned Sessions Judge, Guntur, basing on the

injuries on the scalp in part and other things made observations

that the injuries were of homicidal but not suicidal. The

reasoning given by the learned Sessions Judge, Guntur, is not

sustainable under facts. There is no hard and fast rule that when

there was pouring of kerosene by the deceased on himself, it

would not fell upon other particulars of the body. Both the

dying declarations relied upon by the prosecution suffers with

discrepancies and there was ample time for tutoring. When the

prosecution has alleged the time of offence as 10-00 A.M. or 10-

30 A.M., there was a delay in recording the statement of the

deceased and on account of delay there was every possibility for

tutoring the deceased. Accused was brought one week prior to

the incident. But the allegations in the statement recorded by

the police from the deceased are such that since the date of

marriage, there were disputes demanding share of property

from the father of the deceased.

11) He would further strenuously contend that the

deceased was taller and stronger than the accused. There was

no possibility for the accused to pour kerosene on the head of

the deceased, who was a taller person. The prosecution did not

prove the utter ill-feelings between the deceased and the

accused except the allegation that the accused was insisting to

get the property of the deceased from the family so as to put up

a separate residence. The reasons set forth by the prosecution

were trivial in nature. It is rather improbable that for such a

small reason, the accused would pour kerosene on her husband

and set fire. Though it was alleged that the kerosene was

poured on the deceased, no kerosene could be found either on

the wall or on the ground and it shows that even the scene of

offence was deliberately shifted. When the prosecution has

relied upon two dying declarations, both of them should be

consistent so as to inspire confidence in the mind of the Court.

The Court should test it on the basis of consistency and the

probability, because of discrepancies in both the dying

declarations prudence requires corroboration from independent

source. There is no corroboration to the contents of both the

dying declarations. There are two views possible in the light of

the facts and circumstances and the view that the deceased

poured kerosene on himself and set fire to see that the accused

will be sent back to her house cannot be ruled out. The defence

of the accused is that the deceased to see that the accused will

be sent back to her house, made an attempt and accordingly it

lead to his death. The learned Sessions Judge, Guntur, did not

look into the ground realities and did not look into the facts and

circumstances of the case properly and erroneously believed

both the dying declarations, which are with discrepancies, as

such, the Criminal Appeal is liable to be allowed.

12) He would further contend that the defence of the

accused before the Court below was also that she was mentally

unsound, as such, she was unable to commit offence.

13) The learned counsel for the appellant would rely

upon the decisions in (1) Harijana Thirupala and others vs.

Public Prosecutor, High Court of A.P., Hyderabad 1 (2)

Sultan vs. State of Karnataka 2 and (3) State of

Maharashtra vs. Sanjay S/o Digambarrao Rajhans3.

14) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

there was no delay in recording the dying declaration of the

deceased by the police on receipt of medical intimation from the

hospital and further there was also no delay in recording the

dying declaration of the deceased by the learned Magistrate.

The hospital authorities firstly sent intimation to the police, as

such, P.W.8 rushed to the hospital and recorded the statement

of the deceased which was a basis for registration of F.I.R.

under Section 307 of I.P.C. Immediately, after recording the

statement of deceased by the police, the hospital authorities

sent intimation to the learned Magistrate and the learned

Magistrate rushed to the hospital and recorded the dying

declaration of the deceased. Both the dying declarations are

consistent and they did not run contra with each other as

contended. Though there is no corroboration to the dying

declarations, but both the dying declarations are convincing. As

the offence was occurred in the house of the deceased, there

(2002) 6 Supreme Court Cases 470

2022 SCC OnLine SC 1000

(2004) 13 Supreme Court Cases 314

was no possibility for the outsiders to witness the actual

occurrence. The learned Sessions Judge thoroughly discussed

the evidence on record and recorded cogent reasons in

upholding the case of the prosecution and he rightly believed the

case of the prosecution, as such, the Criminal Appeal is liable to

be dismissed.

15) To bring home the guilt of the accused, the

prosecution examined as many as 8 witnesses. P.W.1 is no

other than the mother of deceased. As evident from the

deposition, the witness was a deaf woman and even she was not

in a position to hear the questions posed to her properly and did

not give answers properly.

16) However, it is a case where she claimed that at the

time of incident, she was having bath. The substance of her

evidence is that she gave birth to three male and one female

children. She performed the marriages of her children Naga

Raju, Srinivasa Rao and Sambasiva Rao. Her female child Padma

is no more. Sambasiva Rao married the accused. She does not

know where the accused and her son Sambasiva Rao resided

after the marriage. She deposed that she, deceased Sambasiva

Rao, accused and Pamda used to reside together in a house. In

November, 2009 her son died. She does not know the cause of

death of Sambasiva Rao. She was not present in the house at

the time of death. She went to bathroom to have bath leaving

the deceased and the accused in the house. Neighbours came

and informed her about the death of her son. She learnt that

her son died due to burn injuries by pouring kerosene on his

body. She does not know who poured the kerosene on the body

of her son. He died while taking treatment at Government

General Hospital. Prosecution got declared her as hostile and

during the course of cross examination, she denied that she

stated as in Ex.P.1. It is a fact that the hostility of P.W.1 to

support the case of the prosecution in tune with Ex.P.1 is proved

as P.W.7, the Inspector of Police, who deposed that P.W.1

stated before him as in Ex.P.1.

17) According to P.W.2, he is a neighbor and his house

is on the western side of the deceased. The deceased, his wife,

P.W.1, the mother of the deceased and his sister used to reside

together. Sambasiva Rao died about one year ago. At about

8-00 A.M. or 9-00 A.M., while he was watching TV, he heard

some cries from outside the house of Sambasiva Rao.

Immediately, he came out and observed a gathering in front of

the house of the deceased. By the time he came out, the

deceased was sitting on the pial with burn injuries on his body.

Immediately, the injured (deceased) was shifted in a Rickshaw

to the hospital.

18) P.W.3 is a witness, who testified that his house and

house of the deceased were intervened by four houses. He does

not know the deceased. Prosecution declared him as hostile and

in the cross examination he denied that he stated as in Ex.P.2.

Prosecution proved his hostile attitude from the mouth of P.W.7,

who deposed that P.W.3 stated before him as in Ex.P.2.

19) P.W.4, the mediator to the observation report, to the

inquest report and further to the arrest mahazar, did not

support the case of the prosecution. According to him, Ex.P.3 is

his signature on the observation report. He was not called by the

police at the time of observation of the scene of offence. He

signed on inquest report on 23.06.2009 at 8-00 A.M. and he

attended the inquest over the dead body. Ex.P.4 is his

signature. Inquest was held in his presence and other

mediators. Actually, he signed Ex.P.4 when the police requested

him on the pretext that his signature is required to shift the

dead body from the hospital. He was not present at the time of

arrest of the accused. Ex.P.5 is his signature on the arrest

mediators report. The prosecution got declared him as hostile

and during the cross examination, he denied that he acted as

mediator at the time of observation of the scene of offence,

inquest over the dead body of the deceased and at the time of

arrest of the accused. Even the hostility of this witness is also

spoken to by P.W.7, the investigating officer, who testified that

P.W.4 was present at the time of observation of the scene of

offence, inquest over the dead body of the deceased and further

at the time of the arrest of the accused. In fact, P.W.4 had no

necessity whatsoever to simply put his signatures on

observation report, inquest report and arrest mahazar.

20) Though P.W.4 did not support the case of the

prosecution, but, there remained the evidence of P.W.7 to prove

the fact that observation of scene of offence was done in the

presence of mediators and further inquest was conducted in the

presence of mediators and arrest was made in the presence of

mediators. However, the fact that the police after investigation,

observed the scene of offence and conducted inquest over the

dead body of the deceased was not in dispute. Further the arrest

of the accused was also not disputed during the cross

examination of the investigating officer. So, the hostility of

P.W.4 in supporting the case of the prosecution as regards the

observation of the scene of offence, conducting inquest over the

dead body of the deceased and arresting the accused will come

in no way to affect the case of the prosecution, in the light of

the categorical evidence of P.W.7, the investigating officer, on

these aspects.

21) Admittedly, even according to the case of the

prosecution, P.W.2 and P.W.3 were not the witnesses to the

occurrence. The prosecution cited them to speak to the fact

that on hearing the cries, they proceeded to the house of the

deceased where they found the deceased with burn injuries.

Even the hostility exhibited by P.W.3 is no way affects the case

of the prosecution. There is no dispute about the fact that the

deceased received burn injuries in the varanadh of the house of

the deceased. So, as to how the deceased received injuries

were not within the knowledge of the outsiders. At best, the

outsiders like P.W.2 and P.W.3 could only notice the presence of

the injuries on the injured soon after they rushed to the scene of

offence. Having regard to the above, it is a case where there

was no probability or possibility for the prosecution to examine

any independent witnesses to prove the case against the

accused.

22) There is evidence of P.W.6, the Medical Officer, to

prove the nature of injuries received by the deceased. P.W.6 is

Associate Professor, Department of Forensic, Guntur Medical

College. His evidence is that on 23.06.2009 at about 10-30

a.m., he received requisition from Sub-Inspector of Police,

Sattenapalli Town Police Station to conduct Postmortem

examination over the dead body of Perumalla Sambasiva Rao,

aged 37 years and on the same day he conducted Postmortem

examination over the dead body of Perumalla Sambasiva Rao,

from 10-40 a.m. to 11-40 a.m, and found the following injuries:

Rigor mortis present all over the body and ante-mortem

injuries mixed flame burns present over the dead body.

Burs involving:

1. Part of scalp, face and neck.

2. Both upper limbs.

3. Front and back of the chest.

4. Front and back of the abdomen and pelvic walls.

5. Front and back of both thighs with patches of right upper legs.

About 80% of burns body surface area is burnt. All over

burns are mixed degree in nature showing vital reaction.

Stomach contains -60 ml of dark brown fluid with no

suspicious smell. Mucosa is normal. All other visceral organs

are congested.

According to his knowledge and belief he is of the opinion

that the cause of death was shock due to burns. Accordingly, he

issued Postmortem certificate. Ex.P.7 is Postmortem certificate

issued by him. The deceased died in Government General

Hospital, Guntur on 22.06.2009 at about 4-30 a.m.

23) The important aspect in the case of the prosecution

to prove the guilt against the accused is two dying declarations.

According to the case of the prosecution, on receipt of the

medical intimation to police as to the admission of the injured

with burn injuries, the hospital authorities sent an intimation to

the police, as such, P.W.8, the then S.I. of Police rushed to the

hospital and recorded the statement of injured.

24) The evidence of P.W.8, in brief, is that on

21.06.2009 while he was present at Police Station, at about 11-

00 a.m., he received hospital intimation about admission of

Perumalla Sambasiva Rao with burn injuries. Immediately, he

rushed to Community Health Centre, Sattenapalli and he

recorded the statement of injured Sambasiva Rao in the

presence of Doctor. Ex.P.11 is the hospital intimation. Ex.P.12

is the statement of Sambasiva Rao recorded by him. After

recording the statement of injured, the Doctor certified the

condition of the injured. He obtained the said endorsement on

the statement itself. After recording his statement Ex.P.12, he

returned to police station and registered a case in Cr.No.110 of

2009 for the offence punishable under Section 307 of I.P.C. and

issued FIR and submitted the original FIR to the concerned

Magistrate and copies of the same to his superiors. Ex.P.13 is

the FIR.

25) The evidence of P.W.5, the then Judicial Magistrate

of First Class, is that on 21.06.2009 he received requisition from

Community Health Center, Sattenapalli at about 12-00 noon to

record statement of Perumalla Sambasiva Rao, S/o Narayana.

Immediately, he rushed to the Community Health Center,

Sattenapalli. He reached the hospital within 2 minutes, since

the hospital is at a distance of 200 meters to the Court. He put

questions to the injured Sambasiva Rao to find out his fit state

of mind and consciousness. After satisfying himself, he obtained

the endorsement certificate of Civil Assistant Surgeon,

Community Health Center, Sattenapalli and thereafter recorded

his statement. The injured Perumalla Samabsiva Rao stated that

his wife has been insisting him to separate from his joint family

by taking his respective share from joint family, and to go away

to her maternal house to lead matrimonial life, but the injured

refused for the same, thereupon his wife poured kerosene and

set fire to his body. He reduced the same into writing.

Thereafter, he obtained certificate about fit state of mind,

conscious and coherent state of the declarant and obtained

endorsement from the Doctor. He obtained the impression of

left big toe on the declaration as his hands were totally burnt.

Except himself, duty Doctor and his Attender, no others were

present during recording the statement of Sambasiva Rao.

Ex.P.6 is the statement of Sambasiva Rao along with requisition.

26) The allegation of the prosecution is that on

21.06.2009 at about 10-30 a.m., when the deceased and the

accused were in the house, accused picked up a quarrel with the

deceased finding fault with him for his inability to get share of

the property, to come and live with her in Gurazala and when

the deceased slapped the accused, then the accused in a fit of

anger poured kerosene on the deceased and set fire and the

neighbourers rushed to the scene and shifted the injured to the

hospital. As the medical officer sent intimation to the S.I. of

Police, he proceeded to the hospital and recorded the statement

of the injured under Ex.P.12.

27) As seen from Ex.P.11, it was intimation sent by the

medical officer. It was dated 21.06.2009 and the endorsement

of the medical officer runs that at 11-00 a.m., it was sent to the

S.I. of Police (P.W.8). P.W.8, the S.I. of Police, testified that on

21.06.2009 while he was present at the police station, at about

11-00 a.m., he received hospital intimation about the admission

of Perumalla Sambasiva Rao with burn injuries. Immediately,

he rushed to the Community Health Center, Sattenapalli and

recorded the statement of the injured Sambasiva Rao in the

presence of Doctor. Ex.P.11 is the hospital intimation and

Ex.P.12 is the statement of Sambasiva Rao.

28) As seen from Ex.P.12, the S.I. of Police made a

mention that starting of statement was on 21.06.2009 at 11-15

a.m., and at the end he concluded that the statement was

concluded on 21.06.2009 at 11-40 a.m. It is the evidence of

P.W.5, the then Judicial Magistrate of First Class, Sattenapalli

that on 21.06.2009, he received requisition from the Community

Health Center, Sattenapalli at about 12-00 noon to record the

statement of Perumalla Samabsiva Rao. Immediately, he rushed

to the Community Health Center, Sattenapalli. He reached the

hospital within two minutes time since the hospital is at a

distance of 200 meters to the Court. As seen from Ex.P.6, the

dying declaration of the deceased recorded by P.W.5, it is

enclosed with the medical intimation which reveals that the

medical officer sent the said intimation to the Magistrate on

21.06.2009 at 11-40 a.m. So, it shows that immediately after

recording of the statement of the injured by P.W.8, the S.I. of

Police, the medical officer thought of to send the information to

Magistrate, as such, he sent the information to the Magistrate.

Ex.P.12 contained the purported right toe impression of the

injured, as the injured was not able to put his thumb impression

on account of burn injuries. The learned Magistrate obtained left

toe impression of the injured on Ex.P.6. So, both the statements

as above, would come under the purview of the dying

declarations and the said fact is not at all in dispute.

29) It is the contention of the learned counsel for the

appellant that there was much delay between the time of

occurrence and recording of statement by the S.I. of Police and

the learned Magistrate, as such, there was a probability for

tutoring. This Court would like to make it clear that according to

Ex.P.12, the offence was occurred on 21.06.2009 at 10-30 a.m.

On hearing the cries of the deceased, the neighbourers gathered

there and shifted the injured to the hospital. According to

Ex.P.11, the injured was brought to the hospital, as such at 11-

00 a.m, the medical officer sent the information to P.W.8. Then,

P.W.8 immediately proceeded to the hospital and started

recording the statement at 11-15 a.m. and concluded at 11-40

a.m. The completion of the dying declaration by the learned

Magistrate was at 12-00 noon. So, the time lag between the

time of offence and recording of ultimate dying declaration i.e.,

Ex.P.6 by P.W.5 was only 1 ½ hour. Injured could be shifted to

hospital by 11-00 a.m.

30) Having regard to the above, this Court is of the

considered view that the shifting of the injured to the hospital,

sending of medical intimation by the medical officer to the S.I.

of Police and consequent recording of the statement of the

injured by P.W.8 and further recording the statement of the

injured by P.W.5 were all happened in quick succession. So, it

cannot be held that there was much time lag between the time

of offence and recording of the dying declaration of the

deceased by P.W.5. To this extent, I am of the considered view

that both Exs.P.12 and P.6 have to be construed as dying

declarations. It is altogether a different aspect that whether

both the dying declarations of the deceased are liable to be able

to consider or not is a matter of consideration by appreciating

the contentions advanced by the learned counsel for the

appellant and the prosecution.

31) Before going to appreciate the contentions of both

sides, this Court would like to make it clear that the settled legal

position with regard to dying declarations. In Varikuppal

Srinivas vs. State of A.P. 4 the Hon'ble Supreme Court held

that if the Dying Declaration is found to be true and voluntary,

conviction can be based on it without further corroboration.

32) Further the Hon'ble Supreme Court in Satish

Ambanna Bansode vs. State of Maharashtra 5 held that

Dying Declaration can form sole basis of conviction and rule of

requiring corroboration is merely a rule of prudence.

33) Further the Hon'ble Supreme Court in S.P. Devaraji

vs. State of Karnataka6 held that if dying declaration found to be

true and voluntary, dying declaration can be made basis for conviction

without any further corroboration.

AIR 2009 SC 1487

AIR 2009 SC 1626

AIR 2009, 1725

34) Keeping the same in view, now, I proceed to

appreciate the contentions. Admittedly, it is a case where P.W.5,

the then Judicial Magistrate of First Class, Sattenapalli, who

recorded Ex.P.6, deposed that after putting certain questions to

the injured to find out his fit statement of mind and

consciousness and after satisfying himself by obtaining the

endorsement of the Civil Assistant Surgeon, he proceeded to

record the statement. The contention of the learned counsel for

the appellant in this regard is that P.W.5 did not intimate to the

deceased voluntarily that he is the Magistrate and he is going to

record the dying declaration of him, but, on the other hand,

when P.W.5 asked the injured as to whether he (injured) know

him (P.W.5), he replied that he is a Judge. So, the injured

(deceased) had knowledge beforehand that his statement is

going to be recorded by a Judicial Officer. So, it shows that

there was a possibility for tutoring.

35) A perusal of Ex.P.6 reveals that the learned

Magistrate asked the deceased to state his name and as to

whether he married and the name of his wife and whether they

have any children and after obtaining answers to the said

questions, he asked him whether he (injured) know him (P.W.5)

and then the injured told him that he learnt that he is a Judge.

It goes to show that P.W.5 made an attempt to introduce

himself with the injured by asking him whether he know him and

then he (injured) told that he (P.W.5) is the Judge. Admittedly,

P.W.5 instead of straight away disclosing to injured that he is a

Judicial Officer, but asked him whether he know him. I am of

the considered view that this is not going to affect the case of

the prosecution in any way.

36) The contention of the appellant is that as the injured

had already knowledge that a Judge is coming to record his

statement, there was a possibility for tutoring. As seen from the

cross examination of P.W.8, S.I. of Police, at the time of

recording of Ex.P.12, brother of the deceased by name

Sambasiva Rao, his mother P.W.1 and his sister L.W.2-Padma

(died) and about 10 to 15 persons, who were visiting hospital,

were there. It was also deposed by P.W.5 during the cross

examination that about 4 or 5 persons were present when he

reached the hospital, but, he did not enquire about the names

and identity of those persons. His Attender asked the persons,

who were present there to go out. The declarent responded

immediately to all his questions. He did not enquire the names

of the parents of the declarent. He did not enquire anything

about previous relationship with the accused, marriage date,

etc. As per Ex.P.6, he did not mention about reading over the

contents to the declarent. He volunteers that he read over the

contents to the declarent.

37) Looking into the cross examination part as above,

this Court would like to make it clear that P.W.5 when he was

requested to record the dying declaration of the injured, he was

supposed to ask the injured as to the manner in which he

received injuries only. So, he was not expected to enquire the

names of the persons present at the hospital and further he was

not expected to probe about the parents of the declarent and

about previous relationship with the accused and marriage date,

etc. Leave apart all these things, now the fact remained is that

according to the appellant, as there were persons present at the

hospital when the S.I. of Police reached there and further P.W.5

reached there, there was a possibility for tutoring.

38) It is to be noticed that already the injured had

knowledge that his statement was recorded by S.I. of Police

under Ex.P.12. Apart from this, as seen from Ex.P.11, even at

the time of admission of the injured at 11-00 a.m. in the

hospital medical officer made a mention that the mode of receipt

of injuries by the injured were said to be pouring kerosene and

the litting fire by his wife. It is a case where there was a duty

cast upon the medical officer in a Medico Legal Case before

admitting an injured like deceased to get information as to the

mode of receipt of injuries and in that process, it came to light

that the wife of the accused poured kerosene and caused burn

injuries. When that is the situation that by 11-00 a.m. itself,

there were entries in the medical intimation that accused caused

injuries to the injured, absolutely, there was no possibility for

tutoring by the time P.W.8 and P.W.5 proceeded to the hospital

to record the statement of the injured.

39) To show that there was a possibility or probability of

tutoring, it is the duty of the appellant to throw light as to how

the deceased gone to the extent of implicating his wife for no

fault and as to whether the deceased had any strong motive to

implicate the accused. During the cross examination of P.W.7,

the investigating officer, accused got suggested to him that as

Sambasiva Rao did not bring back the accused to her

matrimonial house after the marriage, she gave a complaint to

Gurazala S.H.O. and the S.I. insisted the deceased to take her

back as she was alone. P.W.7 denied the said suggestion.

Except that bald suggestion which was denied by P.W.7,

absolutely, there was nothing to prove that the deceased

developed any hatred and ill-well hardly within a period of seven

months after the marriage to go to the extent of roping accused

in a false case. So, there were no probabilities elicited for the

false implication. According to the case of the prosecution, on

hearing the cries of the injured, the neighbourers gathered there

and shifted him to the hospital. It was all happened in quick

succession. If that be the situation, the presence of

neighbourers and the kith and kin of the injured was inevitable

at the hospital. In the circumstances, their presence at the

hospital would not make the dying declarations as suspicious.

40) The contention of the appellant is that when there

were two dying declarations, they must be decided on the basis

of consistency and the probability and in support of such a

contention, the appellant relied upon the decision in Sanjay's

case (3 supra). It is a case where admittedly there were two

dying declarations. In that particular case, the woman sustained

95% burn injuries. In her dying declaration she alleged that the

accused i.e., her fiancé had poured petrol on her body and set

her on fire with a matchstick when she was going with him on

scooter. There was an entry in the hospital register made by

the Doctor in the presence of police constable on duty when the

injured was brought to the hospital containing her statement as

to how she got burn injuries. Subsequently, another statement

was recorded by Executive Magistrate. She put forth a version

before the Executive Magistrate that the place of occurrence as

that of the house. So, both the statements of the declarent on

crucial aspects runs contra to each other. In such circumstances,

the Hon'ble Supreme Court disbelieved the case of the

prosecution.

41) Coming to the case on hand, it is pertinent to refer

here the substance of Ex.P.12 and Ex.P.6 for better appreciation

in the first form. Ex.P.12 the statement recorded by the S.I. of

Police runs in substance as follows:

"I belonged to 18th ward, Sattenapalli and live by doing business. We, four issues to my parents. Three are male and one is female. All are married. I am younger among the male issues. My marriage took place about 7 months ago. Since the date of marriage, I, my wife Dhana Lakshmi and Maguramma used to reside together. Since two months my wife demanded me to get the property from the joint family and to come to her house and I told her that it will be done after ashadam. Today i.e., on 21.06.2009 morning at 10-30 a.m., my mother went for bath, my wife made a quarrel with me demanding to get the property and to come along with her and poured kerosene from the kerosene tin on me and lit fire with matchstick and thrown it on me. Then, I received burn injuries. For the purpose of property my wife poured kerosene on me. I was brought to the hospital in 108 Ambulance."

42) Coming to the contents of Ex.P.6, when the learned

Magistrate (P.W.5) asked the injured as to how he received burn

injuries, his answer in the first form is as follows:

"My wife demanded me to separate from my parents and to bring the property so as to reside along with her in her

parental house, for which I did not agree, as such, today my wife poured kerosene on me and set fire."

43) During the course of cross examination, P.W.1

deposed that the accused was brought back to the house about

one week prior to the date of incident. Basing on this, the

contention of the appellant is that as P.W.1 stated that the

accused was brought back to the house one week prior to the

incident, the question of the accused demanding the deceased

to get the property separated and to come and to reside along

with her since two months does not arise.

44) It is to be noticed that the marriage was happened 7

months prior to the date of incident. Simply because the

accused was brought to the deceased house one week prior to

the incident, it does mean that there was no communication

between the deceased and the accused. The above aspect is not

going to affect the case of the prosecution in any way, in my

considered view. Apart from this, it is also the contention of the

appellant that while the statement recorded by the S.I. of Police

did not disclose that accused insisted for separate residence, but

the statement recorded by the Magistrate whispers that the

accused insisted for separate residence.

45) It is to be noticed that to understand the substance

of Ex.P.12 and Ex.P.6, the whole contents are to be looked into.

A plain reading of Ex.P.12 discloses that accused demanded the

deceased to get the property separated from his parents and to

come along with her to her parental house to reside there. It is

nothing but demanding a separate residence in my considered

view. So, if Ex.P.12 and Ex.P.6 are considered, absolutely, they

would not run contra with each other on crucial aspects. In my

considered view, there is consistency between Ex.P.12 and

Ex.P.6. The factual aspects in Sanjay's case (3 supra),

obviously, stands in a different footing where the place of

offence was different in both the declarations. Hence, the above

said decision is of no use to the appellant.

46) Turning to the decision in Sultan's case (2 supra),

admittedly, it is a case where the Hon'ble Supreme Court held

that when the Court was in doubt as to the veracity or

correctness, it can and should seek corroboration, keeping in

mind the fact that the accused have no chance of cross-

examination. Further it is necessary to guard and ensure that

the statement made by the deceased is not a result of tutoring,

prompting or imagination.

47) Coming to the case on hand, there was no possibility

for tutoring, etc. Both the statements of the deceased does

reconcile with each other on crucial allegations. So, the case on

hand, does not throw any suspicious circumstances so as to

ensure that there should be corroboration to the dying

declarations.

48) Turning to the decision in Harijana Thirupala's case

(1 supra), the contention of the appellant is that when there

were two views favourable, one in favour of the accused and

another in favour of the prosecution, the view favourable to the

accused has to be taken into consideration to extend benefit of

doubt.

49) By relying on the above, the contention of the

appellant is that it is the deceased, who poured kerosene on

himself and set fire so as to see that the accused would be sent

back to her house and such an act on the part of the deceased

ultimately lead to his death. So, the theory projected by the

accused is that of suicidal theory. The theory projected by the

prosecution is that of homicidal theory. To support the

homicidal theory, the prosecution has two dying declarations

recorded by P.W.8 and P.W.5 i.e., Ex.P.12 and Ex.P.6.

50) Now, I would like to deal with the suicidal theory

alleged by the accused looking into the medical evidence. As

seen from the evidence of P.W.6, the medical officer, he found

the part of scalp, face and neck, both upper limbs, front and

back of the chest, front and back of the abdomen and pelvic

walls and front and back of both thighs with patches of right

upper legs were burnt. It is elicited from the mouth of P.W.1

during the cross examination that the weight of the deceased

Sambasiva Rao was about 70 or 80 kgs. and he was taller than

the accused. The contention of the appellant is that when the

deceased was taller than the accused and he was a stout

personality, absolutely, there was no possibility for the accused

to pour kerosene on the head of the deceased, as such, it was

the deceased, who poured kerosene on his head and set fire so

as to see that the accused would be sent back to her parental

house.

51) I have carefully looked into the above said

contention. It is to be noticed that the first injury was part of

scalp, face and neck was burnt and secondly both upper limbs

were burnt. If really the deceased lifted the kerosene tin

containing kerosene with his both hands and poured kerosene

on his head, there was little possibility that both upper limbs

would be drenched with kerosene. In such case the entire scalp,

face and neck would have been burnt. When both hands were

raised by the deceased to pour kerosene on the head, there

would be no possibility that kerosene would fall upon both the

hands. In such an event, there would be no occasion that both

the hands will be burnt. On the other hand, if somebody poured

kerosene on the head, especially, a short person than the

deceased like the accused, there would be possibility that the

kerosene may fell on the part of scalp, face and neck. So,

looking into the fact that the scalp, face and neck were burnt

partly, it is clear that as the accused was shorter than the

deceased, she was not able to pour kerosene fully on the scalp,

face and neck. Apart from this, the burning of both upper limbs

could only be possible if a third party poured kerosene on the

head. Though, as the versions in both dying declarations were

consistent with each other and though the case on hand does

not require a corroboration as a rule of action, but the nature of

the injuries and the site of the injuries over the dead body of the

deceased would further lends an assurance to the case of the

prosecution by way of corroboration.

52) As seen from another crucial aspect in the case of

the prosecution is that the prosecution got marked M.O.1 to

M.O.6 through P.W.8, who taken part in the investigation.

M.O.1 is five liters plastic can, M.O.2 is saree pieces, M.O.3 is

match box, M.O.4 is two burnt matchsticks, M.O.5 is half-burnt

Red colour waist thread and M.O.6 is half-burnt gray and black

colour lungi pieces. They were said to be seized under the cover

of observation report. Observation report is marked as Ex.P.14.

The investigating officer during the observation of scene of

offence seized the coffee colour silk saree apart from other

items. As seen from Ex.P.10, item No.2 is the Khaki colour

saree which was found with kerosene a mixture of flammable

hydrocarbons. It is quiet unfortunate that the investigating

officer did not spell out that item No.2 was wear by the accused

at the time of offence. Even otherwise, as elicited from the

mouth of P.W.1 that the deceased and the accused were alone

present in the house at the time of offence. The defence of the

accused was suicidal theory. So, if really the deceased poured

kerosene on his body and set fire, naturally, reaction of the

accused would have been different. It is not a case where she

made any attempt to prevent the deceased from committing

suicide. If really the suicidal theory was true, there would have

been a possibility for the accused to come into contact with

minor burn injuries. So, the suicidal theory projected by the

accused can absolutely be ruled out. So, it is not a case where

the evidence adduced by the prosecution is presenting suicidal

theory as well as the homicidal theory. The above circumstances

referred to by this Court are further strengthening the case of

the prosecution to any extent by negativing the suicidal theory.

53) It is quietly evident from the evidence of P.W.5

coupled with endorsements of the medical officer two in number

in Ex.P.6 that there was a certification by the medical officer as

to the fit statement of mind by the injured at the time of giving

Ex.P.6 dying declaration. Apart from this, P.W.6, the medical

officer, who conducted autopsy over the dead body of the

deceased, denied a suggestion that when a person received

80% injuries the condition of the injured will become semi-

conscious. In fact, he also explained that in the case of burn

injuries, question of loosing conscious till the death does not

arise. Hence, the condition of the injured at the time of

recording of Ex.P.6 by P.W.5 was totally fit. Hence, the

contention of the appellant that the learned Magistrate did not

obtain a certification as to the fitness of the injured deserves no

merits.

54) It is also the contention of the learned counsel for

the appellant that there were no stains of kerosene either on

ground or walls according to the evidence of investigating officer

and it shows that the case of the prosecution is false. It is very

difficult to accept such a contention. The cause of death was not

in dispute. The place of incident was in the house of the

accused and by then the presence of the accused and the

deceased in the verandah was not in dispute. Simply because

there were no stains on ground or the walls about the kerosene

it would not throw any doubtful circumstances in the case of the

prosecution. The above said contention in my considered view

deserves no merits.

55) It is also contended by the learned counsel for the

appellant that accused was mentally disturbed, as such, there

was no possibility for her to commit the offence. During cross

examination of P.W.7, he denied that accused is not mentally

sound and she never made any attempt to do away with the life

of her husband, Sambasiva Rao. It is not a case where the

accused filed any proof whatsoever to show the so-called mental

illness. It is not a case where the accused took a plea of

defence of insanity. It is not known as to how the accused got

suggested to P.W.7 during the cross examination about the so-

called contention that the accused is not mentally sound.

Viewing from any angle, this Court is of the considered view that

both the dying declarations i.e., Ex.P.12 and Ex.P.6 recorded by

P.W.8 and P.W.5 respectively are free from blemish and there

was no possibility for tutoring and they can be a basis to sustain

a conviction against the accused. The contention of the appellant

that the reasons set forth by the prosecution for the allegation

that accused poured kerosene on her husband and set fire was

flimsy is not acceptable, as it is not a case where the

prosecution sought to prove the guilt basing on circumstantial

evidence. In case of circumstantial evidence only, the

prosecution is expected to prove motive for the offence. Even

otherwise, the reasons set forth as motive for the offence cannot

be taken as flimsy.

56) Having regard to the above, I am of the considered

view that as both the dying declarations are found to be reliable,

there are no grounds whatsoever to interfere with the judgment

of the learned Sessions Judge, Guntur. The learned Sessions

Judge, Guntur looked into the evidence and appreciated the

evidence properly and he met with all the contentions raised by

the learned defence counsel before the Court below. In my

considered view, the prosecution before the Court below proved

beyond reasonable doubt that on the date of incident accused

poured kerosene on her husband and set fire. Looking into the

evidence of P.W.7 and P.W.8 and the case of the prosecution, he

made a finding that as the incident was occurred in a spur of

movement, as the deceased slapped the accused, the case

would not fall under Section 302 of I.P.C., but it would fall under

Section 304 Part I of I.P.C. i.e., culpable homicide not

amounting to murder. The said findings of the learned Sessions

Judge are not under challenge by the prosecution before this

Court.

57) Having regard to the above, this Court is of the

considered view that absolutely, there are no reasons to

interfere with the judgment of the Court below.

58) In the result, the Criminal Appeal is dismissed.

59) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order of this Court to

the trial Court on or before 01.03.2023 and on such certification,

the trial Court shall take necessary steps to carry out the

sentence imposed against the appellant and to report

compliance to this Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU

Dt. 22.02.2023.

Note: L.R. copy be marked.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1046 OF 2010

Date: 22.02.2023

PGR