Smt Ireni Lachavva Another vs The State Of A.P. Rep., By Its Pp
2022 Latest Caselaw 5115 Tel

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.

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

AIR 2016 SC 5554

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.

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.

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,

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

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

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

(2019) 6 SCC 145

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

(2019) 13 SCC 464

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.

(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,

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

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

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