Telangana High Court

Peddinti Bhaskar , Pundari Kakshaiah, ... vs P.P., Hyd on 8 August, 2024

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     THE HONOURABLE SRI JUSTICE K.SURENDER
                               AND
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO

          CRIMINAL APPEAL No.511 OF 2015
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. This appeal is filed aggrieved by the judgment dated

17.04.2015 in S.C.No.362 of 2012, on the file of III

Additional District and Sessions Judge, Ranga Reddy

District. The appellant was convicted for the offence under

Section 302 of IPC and sentenced to life imprisonment.

2. Heard the learned counsel for the appellant/accused

and Sri Jithender Rao Veeramalla, learned Additional

Public Prosecutor for respondent-State.

3. Briefly, the case of the prosecution is that the

appellant and the deceased who is the daughter of P.W.1

were married on 25.04.2012. After marriage, both

appellant and the deceased lived for one month at her

parent's house. At the time of marriage, dowry was also

given. On the date of incident i.e.,15.07.2012 in the night

after having dinner, the deceased slept in her parents

house, since the house was small one and as she was

having bad dreams, she asked her husband to permit her

to sleep with her mother. In this connection, the accused

abused her and thereafter poured kerosene on her and lit

her on fire. Unable to bear the pain, she shouted for help.

Mother/P.W.1, P.W.2/neighbor and others took the

deceased to the hospital where she died while undergoing

treatment.

3. The Police having registered the case filed charge

sheet for the offences under Sections 498-A, 302 of IPC

and Sections 3 and 4 of Dowry Prohibition Act. Charges

were framed for the said offences by the learned Sessions

Judge and in support of prosecution, P.Ws. 1 to 10 were

examined and documents Ex.P.1 to P.17 were also brought

on record. Learned Sessions Judge found that though the

witnesses including mother of the deceased turned hostile

to the prosecution case, reliance can be placed on the

dying declaration which was made by the deceased in the

hospital and was recorded by the learned

Magistrate/P.W.9. Accordingly, the appellant was

convicted.

4. Learned counsel appearing for the appellant would

submit that P.W.1/mother herself has not stated anything

against the accused. Though, she was declared hostile,

her evidence cannot be brushed aside, only for the reason

of hostility. Further, the prosecution has utterly failed to

prove that the act of the accused was premeditated or that

he entertained any intention of killing her. In fact, when

the doors were broke open, the accused was found inside

the room and the deceased was on fire. Thereafter, she was

taken to the hospital.

5. Learned counsel submits that it is a case of suicide

and alternatively argued that the case may fall within the

four corners of 304-II of IPC, since there was no intention

of causing such harm. Learned counsel further argued

that the dying declaration solely cannot be made basis to

infer guilt of the accused.

6. On the other hand learned Public Prosecutor submits

that even according to witnesses, the accused was found in

the room where the deceased was found on flames and

thereafter, she was shifted to the hospital. In fact, the

witnesses stated that they broke open of the door since it

was bolted from inside. That in itself would indicate that

the appellant had poured kerosene on her and set her on

fire with an intent to cause her death. In fact, dying

declaration can be made sole basis for conviction and

accordingly, the findings of the learned Sessions Judge

cannot be interfered with, since they are reasoned.

7. Having gone through the record, P.W.1/mother,

P.W.2/neighbor, P.W.3 who is the owner of the house and

P.W.4/resident of the locality spoke about the burns

received by the deceased, though they were declared

hostile. All the four witnesses have consistently stated that

the deceased and the accused were found in one room and

the accused was found sleeping. Their opinion was that

she poured kerosene on to herself and lit fire. The reason

given by the witnesses was that the deceased was not

interested in the accused and she was having relation with

some other persons, for which reason she committed

suicide.

8. Though the witnesses were treated hostile and cross

examined by the prosecutor, the presence of the accused

with the deceased in the house and the room being bolted,

further the deceased being on flames is not disputed by

any of the witnesses. The deceased was taken to the

hospital and a requisition was given to P.W.9/Magistrate

for recording dying declaration. P.W.9 went to the hospital

at 12.30 in the afternoon. Preliminary questions were

asked by the learned Magistrate and being convinced that

deceased was able to understand the questions and giving

answers, started recording the statement. Even prior to

the recording of the statement, the Magistrate has taken

the opinion of the Doctor who endorsed that the patient

was coherent and in fit state of mind to give her statement.

When questioned as to what happened, the deceased

stated as follows:

The dying declaration was given in Telugu language

and translation is done by this Court as under:-

           "Yesterday       night    my      mother   slept
     separately      in   another   house.   My   husband

(appellant) came to me and stated that my mother slept in another house. Since I was getting bad dreams, I informed my husband that I wanted to go to my mother and sleep beside her. Then my husband abused me and poured kerosene on me. I did not shout. He lit fire with a match stick. Then I started shouting and my mother, my father's elder brother and other neighbours came there. That is what happened nothing else to say."

9. After recording the statement also, Doctor endorsed

that the patient was conscious, coherent and in fit state of

mind throughout the recording of her statement.

10. It has to be seen whether the dying declaration can

be made sole basis for convicting the accused. During the

course of trial, no witnesses were cross examined and also

during 313 Cr.P.C. examination, nothing was stated

regarding any tutoring by any of the relatives before the

dying declaration was recorded. It is not the case that the

deceased was not in a fit state of mind or was under any

kind of influence to state against the appellant.

11. The Hon'ble Supreme Court in Irfan Vs. State of UP 1

held as under:-

"61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone.

62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -

(i) Whether the person making the statement was in expectation of death?

(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"

(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

(vii) Whether, the dying declaration has been consistent throughout?

(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?

2023 SCC Online SC 1227

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?"

12. The Hon'ble Supreme Court in Atbir vs. Government

of NCT of Delhi 2 held as under:-

"In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N., (2005) 9 SCC 113, the following discussion and the ultimate conclusion are relevant which read as under:

"14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with.

Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit

(2010) 9 SCC 1

state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."

The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474."

13. According to the prosecution case and the witnesses,

the marriage of the appellant and the deceased had only

taken place 5 months prior to the incident. There are no

reasons as to why the deceased would give false statement

implicating her husband. In fact, when the witnesses said

about the accused being present in the room where

deceased was burning, the appellant has not taken any

steps even to put off the flames and the witnesses had to

break open the door to enter into the room. It is highly

improbable while assessing the situation that the husband

was sleeping in the room bolted from inside and the wife

was on flames. It is the case of accused that deceased