Andhra Pradesh High Court - Amravati
Nandyala Venkata Prasad vs The State Of A.P., on 14 August, 2020
Author: Ninala Jayasurya
Bench: M.Satyanarayana Murthy, Ninala Jayasurya
1
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL APPEAL No.119 of 2014
JUDGMENT :(Per the Hon'ble Sri Justice Ninala Jayasurya) It is an appeal preferred by the accused in Sessions Case No.66 of 2012 on the file of the Court of the Principal Sessions Judge, Nellore, aggrieved by the Calendar and Judgment dated 20.01.2014, wherein the accused/appellant was found guilty for the offences punishable under Sections 302 and 324 of Indian Penal Code (For short 'IPC'), convicted and sentenced to suffer imprisonment for life and also to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month for the offence punishable under Section 302 of IPC and also sentenced to suffer simple imprisonment for three months for the offence punishable under Section 324 of IPC, which shall run concurrently.
Before adverting to the facts and circumstances which lead to the filing of the present appeal, it would be convenient to refer the parties as arrayed before the Sessions Court.
The facts as culled out from the records may be narrated for better appreciation of the issues raised in the present case.
The deceased-Kuppuswamy Palani was a binder by profession and resident of Sarvepalli Kalvakatta, Haradhapuram, Nellore Town. The first wife of the deceased-Palani died about 15 years back due to ill-health leaving behind her three children i.e., Lakshmi Saraswathi @ Lakshmi, Ramesh and Sruthi. After the death of his first wife, the deceased-Palani 2 married Vanaja (PW-1) and performed the marriages of the children of his first wife and they are living separately. Husband of the eldest daughter of the deceased-Palani by name Nandyala Venkata Prasad/accused developed illicit intimacy with Vanaja (PW-1) and about one year prior to the date of incident, the deceased-Palani admonished and warned him not to visit his house. Since then Vanaja (PW-1) was avoiding to talk with Venkata Prasad/accused, but he was trying to visit the house of the deceased- Palani, for which the deceased-Palani strongly objected. The accused, therefore, developed grudge against the deceased-Palani and hatched a plan to get rid of him and thereby continue his illicit intimacy with Vanaja (PW-1). In pursuit of his intention the accused went to Sarvepalli Kaluvakatta on the mid night of 29.07.2011 at about 00-30 hours on his motorcycle, parked it there and went to the house of the deceased-Palani to talk with Vanaja (PW-1), knocked the door, thereby they woke up and PW-1 switched on the light, opened the door and the accused on seeing deceased-Palani flew away. As the accused could not talk to PW-1 Vanaja, he decided to kill the deceased-Palani by pouring petrol and setting fire, secured empty Kinley water bottle available on the road, filled petrol in the said bottle from the tank of his motorcycle and went to the house of the deceased. The accused found the house door was slightly opened, closed it from out side, splashed petrol over the body of the deceased from the gap of the door, due to smell of the petrol, the deceased-Palani woke up, then the accused lighted a match stick and threw away the same on the deceased by uttering words as "CHAAVARA NAA KODAKA". PW-1 also woke up, deceased-Palani and PW-1 identified the accused in the illumination of electric light. Due to the act of the accused, the deceased was engulfed by flames. PW-1 tried to put off the flames and her body was 3 partly burnt. The deceased-Palani and PW-1 raised cries, on hearing the same PW-3 - Ramanamma rushed to the house of the deceased-Palani and found the accused in front of the house of the deceased-Palani and door is bolted from outside. On seeing her, the accused ran away. PW-3 opened the door of the house of the deceased-Palani and in the meanwhile PW-2 - Ramesh, son of first wife of deceased-Palani, rushed there and found the accused running towards northern side from the house of the deceased- Palani. PWs.2 and 3 put off the flames found on the deceased, meanwhile PW-4 - Vasu rushed to the place of incident and PW-2 shifted the deceased-Palani and PW-1 to the Government Hospital, Nellore in the auto of PW-4.
On receipt of intimation from the hospital, PW-20 -
Ch.Raghuramaiah, Head Constable, I-Town Police Station, Nellore and in- charge of out-post, Government Head Quarters Hospital, Nellore, recorded the statement of the deceased-Palani at 2.15 hours on 30.07.2011 under Ex.P.26 and forwarded the same to the Station House Officer, 4th Town P.S., Nellore. Thereafter PW-21, S.I. of Police, IV-Town Police Station, Nellore registered a case in Crime No.159 of 2011 under Section 307 of IPC and took up investigation. During the course of investigation, PW-21 visited the Government Hospital, Nellore and recorded the statement of deceased- Palani, PW-1 and PW-2. Thereafter, he visited the scene of offence in the presence of mediators PW-10 - Maramreddy Kumar and PW-11 - R.Ramakrishna Reddy, seized the Material Objects 1 to 4 under the cover of observation report (Ex.P.28) and examined the witnesses. On receipt of Hospital Intimation - Ex.P.19 about the admission of PW1- Vanaja and Ex.P.20 about the admission of the deceased-Palani by PW18 - Dr. 4 S.Renuka Devi, Civil Assistant Surgeon, Government Hospital, Nellore, PW16-Special Judicial Magistrate of First Class for Railways, Nellore, recorded the (statement) dying declaration Ex.P21 of the deceased-Palani. While undergoing treatment, the deceased-Palani died in the hospital due to burns on 31.07.2011 at 04.20 P.M. In view of the same, PW-21 altered the Section of Law from Section 307 IPC to Section 302 of IPC. PW22 - Station House Officer, Nellore Town Circle took up the investigation, held inquest over the dead body of the deceased in the presence of Panchayatdars (PWs.10, 11 and 13), examined the witnesses, recorded their statements and sent the dead body of the deceased for post mortem examination. On 04.08.2011, PW-22 on information that accused was standing near Bezawada Gopala Reddy Statue Centre, Mini Bye-Pass Road, Nellore, went there, detained and interrogated him in the presence of mediators (PWs.14 and 15). The accused confessed in the presence of mediators that he committed the offence, then PW-22 arrested the accused and the confessional statement was recorded by way of mediators report and sent him for remand. PW17-Dr. Param Jyothi, Civil Assistant Surgeon, Government Hospital, Nellore, conducted post-mortem over the dead body of the deceased, issued post-mortem certificate (Ex.P.22) and opined that the deceased-Palani died due to hypovolemic shock due to extensive burns. PW18- Dr. S.Renuka Devi, Civil Assistant Surgeon, Government Hospital, Nellore, examined PW-1 and issued wound certificate (Ex.P.23) that the injuries suffered by PW-1 are simple in nature.
Basing on the dying declarations and circumstantial evidence collected during the course of investigation which establishes prima facie case against the accused, PW-22 laid charge sheet before the Judicial 5 Magistrate of First Class for the offences punishable under Sections 302 and 324 of IPC. The learned Magistrate registered the same as PRC No.37 of 2011 and since the offence is exclusively triable by the Court of Sessions, in terms of Section 209 of Criminal Procedure Code(Cr.P.C.), committed the same to the District Sessions Court by due compliance as required under Section 207 Cr.P.C. and thereafter the same was registered as Sessions Case No.66 of 2012 on the file of Principal District & Sessions Judge, Nellore.
After securing the presence of the accused and on hearing the leaned Public Prosecutor and defence counsel, the learned Sessions Judge, framed charges against the accused for the offences punishable under Sections 302 and 324 of IPC, read over and explained the same to him in Telugu, for which he pleaded not guilty and claimed to be tried.
During the course of trial, P.Ws.1 to 22 were examined on behalf of prosecution. Out of whom P.Ws.2 to 7 and P.Ws.9 to 11 and P.Ws.13 to 15 turned hostile by resiling from their statements made before police. Exs.P.1 to P.32 and D.1 to D.3 were marked. The material objects were marked as M.Os.1 to 4.
After closure of prosecution evidence, accused was examined under Section 313 Cr.P.C. and the incriminating material against him was explained in Telugu, to which he denied the same stating that the same are false, he is not aware and a false case is registered against him. He did not adduce any oral evidence, but got marked Exs.D.1 and D.2 i.e., relevant portions in the statement Ex.P.1 of PW1-Vanaja recorded by the learned 6 Magistrate-PW16 and also Ex.D.3 relevant portion in the statement of PW-1 recorded by police under Section 161 Cr.P.C.
On consideration of the arguments of the learned Public Prosecutor and defence counsel, the learned Principal Sessions Judge, Nellore, found the accused guilty for the offences punishable under Sections 302 and 324 of IPC basing on the two dying declarations of the deceased under Ex.P.21 recorded by the learned Magistrate-PW16 and Ex.P.26 recorded by PW-20 coupled with the evidence of P.Ws.1 and 8, 12 and P.W.2 and P.W.3 to some extent, convicted and sentenced the accused to undergo life imprisonment for the offence punishable under Section 302 of IPC and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month and also sentenced to undergo simple imprisonment for a period of three months for the offence punishable under Section 324 of IPC, which shall run concurrently.
Against the said conviction and sentence, the accused/appellant preferred the present appeal.
Heard the learned counsel for the appellant Smt. A.Gayathri Reddy and the learned Additional Public Prosecutor Sri Dushyanth Reddy, for the respondent-State.
Learned counsel for the accused submits that the learned Trial Judge committed grave illegality in convicting the accused on the basis of dying declarations of the deceased under Exs.P.21 and P.26 despite inconsistencies therein, more particularly, in the absence of any corroborative evidence. Learned counsel further submits that the evidence of P.W.1 is not trustworthy, in as much as, statements made before the 7 learned Magistrate and investigating officer, are contrary. She further points out that there are discrepancies and corrections were made with regard to timings in the statement recorded by the police. She submits that there is no corroborative evidence to prove the guilt of the accused and though the prosecution failed to prove the motive, the learned Trial Judge without appreciating the said crucial aspect in a proper perspective, erroneously convicted the accused. She also submits that the accused was falsely implicated in the offence as the wife of the accused was demanding share in the property of the deceased. Learned counsel submits that the conviction and sentence awarded by the trial Court on an erroneous consideration of the evidence on record, is not sustainable and states that the same deserves to be set aside.
Learned Additional Public Prosecutor Sri Dushyanth Reddy, on the other hand, while supporting the Judgment of the trial Court contends that the conviction of the accused is based on appreciation of evidence adduced by the prosecution. He submits that there is no inconsistency in the dying declarations-Exs.P.21 and P.26 of the deceased, the prosecution proved its case beyond reasonable doubt and therefore, the Judgment of the trial Court warrants no interference in exercise of appellate powers by this Court under Section 374 Cr.P.C., and requests for dismissal of the appeal.
In the light of the contentions by both parties, the points that arise for consideration by this Court are as follows:-
1. Whether the conviction of the appellant/accused on the basis of dying declarations available on record is sustainable or the same is liable to be set-aside on the ground of 8 inconsistency and lack of circumstantial evidence as contended by the accused and entitled for acquittal ?
2. Whether the accused caused any injury on the body of P.W.1 by voluntarily causing hurt, if so, whether he is liable for punishment for the offence punishable under Section 324 of IPC ?
As is evident from the record, to substantiate its case, the prosecution heavily relied on the dying declarations i.e., Ex.P.21-statement/ Dying Declaration of the deceased-Palani recorded by the learned Magistrate (P.W.16) and Ex.P.26-statement/Dying Declaration of the deceased-Palani recorded by the Head Constable (PW-20) and the circumstantial evidence of PWs.1, 8, 12, 17, 18 to 20, other witnesses P.Ws.2 to 7, 13 to 16 turned hostile. Except PW-1 there is no other direct witness. Taking into consideration the dying declarations under Exs.P.21 and P.26 coupled with the evidence of PWs.1, 8 and 12, the trial Court held that the accused is guilty of the offences charged against him.
To judge as to whether the trial Court is correct in arriving its conclusions and inflicting the punishment for life under Section 302 of IPC as also for the offence punishable under Section 324 of IPC, it is imperative to appreciate the evidence adduced by prosecution.
In this regard it is apposite to advert to the scope of Section 374 of Cr.P.C. which conferred a substantive right of appeal on the accused who is convicted by the Trial Court. This Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise the entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Unless the Court finds manifest perversity in the 9 calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in the appeal, while exercising the jurisdiction under Section 374(2) Cr.P.C. As laid down by Hon'ble Apex Court in Kamlesh Prabhudas Tanna & Anr v. State of Gujarat1, it is the sacrosanct duty of the appellate court, while sitting in the appeal against the judgment of the trial Court, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. Keeping the scope of Section 374(2) Cr.P.C., this Court would like to re-appreciate entire evidence on record to come to an independent conclusion, uninfluenced by the findings recorded by the trial Court.
At the out set, it may be noted that the case of the prosecution is based on Dying Declarations of the deceased-Palani apart from the evidence of direct witness PW1-Vanaja and circumstantial evidence. When the prosecution is able to prove its case on the basis of Dying Declarations, circumstantial evidence to prove motive looses its significance as motive is not a substantive piece of evidence, but only a corroborative piece of evidence to complete the links in the chain of events. The law with regard to conviction of an accused on the basis of Dying Declaration or statement of the deceased has succinctly been dealt with by the Hon'ble Supreme Court in a catena of cases and guidelines have been laid down with regard to Dying Declaration/Statement of deceased as substantive piece of evidence to rope the accused of the alleged offence and award punishment. The principles as set out by the Hon'ble Supreme Court would be discussed at a later stage.
1 (2013) 15 SCC 263 10 Before adverting to the evidence on record, it is trite to mention here that as held by the Hon'ble Supreme Court in Kishore Chand v. State of Himachal Pradesh2, when the case is based on circumstantial evidence, burden of proof is always on the prosecution to prove all the circumstances from which conclusion of guilt is to be drawn must be fully established and the facts so established must be consistent with hypothesis of guilt of accused and if any circumstance consistent with innocence of accused, he is entitled to benefit of doubt.
Further the Hon'ble Supreme Court in G.Parshwanath v. State of Karnataka3, held that when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be fully established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts.
Keeping in mind the law laid down, this Court would like to appreciate the evidence adduced on behalf of the prosecution.
PW1-Vanaja is the wife of the deceased-Palani. She is the direct and crucial witness examined by the prosecution to prove the guilt of the accused. She categorically stated in her evidence that since 4 years prior to 2 AIR 1990 SC 2140 3 AIR 2010 SC 2914 11 the incident of the death of her husband deceased-Palani, she had illegal contacts with the accused. She stated that her husband came to know about the said fact one year prior to the date of the incident and the deceased chastised the accused not to visit their house. She further deposed that even when the accused used to visit their house in the absence of her husband, she didn't accept the accused coming to their house. She deposed that while she and her husband were sleeping in their house during midnight, accused came to their house, knocked the door, she and her husband opened the door and on seeing her husband, the accused ran away. As per her further evidence, they closed the doors without bolting from inside and slept on separate beds and about half an hour thereafter got smell of petrol. She stated that she and her husband woke up and found the accused in the Varanda situated near to their house and at that time the accused lit a match stick and thrown on the deceased by saying "CHAVARA NAA KODAKA" and closed the house doors, bolted from outside and ran away. She further categorically deposed that her husband was set on fire and she tried to put off the flames and she received burnt injuries to her hands, back and face. She also stated that both of them raised cries and on hearing them, PW3-Ramanamma came to their house and thereafter PW2-Palani Ramesh, son of the deceased-Palani came and tried to put off the flames and they were taken to the hospital in the auto driven by PW4-Vasu and that police recorded the statement of the deceased-Palani in her presence and thereafter the Magistrate (PW-16) also came to the hospital and recorded their statements separately. She deposed further that the police also took her statement and two days thereafter her husband died while undergoing treatment. 12
PW1-Vanaja was subjected to extensive cross-examination by the defence counsel, but nothing could be elicited regarding occurrence of the incident and the evidence in examination in-chief remained unshaken. A suggestion was made to PW1-Vanaja that she had illegal contacts with her neighbouring persons and therefore there are disputes between PW1- Vanaja and the deceased and with a view to threaten PW-1, the deceased- Palani poured petrol himself as he could not bear the insult. Except a suggestion that it is a case of attempt to suicide by the deceased-Palani, nothing could be elicited from PW1-Vanaja in this regard in deviation to her earlier statement. No suggestion was made to the PW1-Vanaja that she suffered burn injuries while trying to put off flames on the body of the deceased, as he attempted to commit suicide by pouring petrol himself. It's worth mentioning here that, no suggestion is made to PW1-wife of the deceased that there is no illicit relationship between PW-1 and the accused which is the motive for commission of offence according to the prosecution and thus the same remained uncontroverted. Further her evidence corroborates the statements (Dying Declarations) of the deceased-Palani, recorded as Ex.P.26 by PW-20 and Ex.P.21 by the learned Magistrate-PW16 that the accused poured petrol and set fire to the deceased-Palani.
Though PW-1 is a related and interested witness to some extent, her evidence cannot be discarded on that ground, if it is consistent with the evidence and corroborated by any other independent witness. Her statement that PWs.2 and 3 came to the scene of offence, is corroborated by the statements of PWs.2 and 3, that she was taken to hospital along with her husband deceased-Palani in the auto of PW-4 is corroborated by the evidence of PW-4. Her evidence that the accused poured petrol on 13 deceased-Palani is corroborated by P.W.8, sister of deceased-Palani. Her categorical evidence that she had illicit relationship with the accused which remained uncontraverted would suffice to establish motive for commission of the alleged offence. However, motive is a double edged weapon which may lead to commission of an offence or implicate the accused in an alleged offence. As held by the Hon'ble Supreme Court in Suresh Chandra Bahri v. State of Bihar4, sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced.
PW2-Palani Ramesh is the son of the deceased-Palani through the first wife of the deceased. In his evidence he deposed that on the date of incident after hearing the cries, he came to the house portion of his father deceased-Palani and PW-1 and found that his father was burning, so also, PW-1. He also stated that PW-3 came there immediately and that he tried to put off fire with a blanket. He stated that his father told him that he himself poured petrol and set fire to himself due to disputes with PW-1. However, this witness turned hostile and his evidence to the extent that the deceased-Palani and PW-1 were burning and Ramanamma (PW-3) came to the scene of offence, which corroborates the evidence of PW1, can be taken into consideration. In the cross-examination, he denied the suggestion that PW1-Vanaja is not the second wife of his father.
PW3-Ramanamma deposed that she is resident of Haranadhapuram, near Muthukur gate. She stated that on the date of incident at about 12-30 mid night on hearing the cries of the deceased-Palani, she went there and 4 AIR 1994 SC 2420 14 by the time she went there, several persons including male and female were present. She further stated that she came to know through them that the deceased-Palani himself poured petrol and set fire himself and police did not examine her in connection with this case. As PW-3 resiled from her statements Exs.P.4 and P.5 recorded by PWs-21 and 22 respectively under Section 161 Cr.P.C., she was declared hostile.
PW4 in his deposition stated that on hearing cries, on the date of incident, he proceeded to the house of PWs-1, 2 and the deceased-Palani and saw PW-2 putting off flames on the deceased and PW-1. He further stated that the deceased-Palani, his wife PW1-Vanaja and two other neighbouring ladies boarded in his auto and he took them to Jayabharath Hospital, Nellore, when they refused to admit the injured, he took them to the Government Hospital, Nellore. However, PW-4 turned hostile and therefore, his evidence can be taken into account to the extent of sustaining burn injuries by the deceased-Palani, PW-1 and attempt made by PW-2 to put off flames and shifting the deceased-Palani and PW-1 in his Auto to the Government Hospital, Nellore, which corroborates the evidence of PW-1. Except that nothing is elicited from PW4 that the death of the deceased was caused due to suicide, though he deposed that PW-1 told him that the deceased himself poured petrol and set fire to himself, due to disputes with PW-1.
PWs-5, 6 and 7 are brothers of the deceased-Palani and in their evidence nothing worth mentioning was elicited, except that they are not aware of any disputes between the accused and the deceased-Palani. However, they also turned hostile.
15
PW-8 is the sister of the deceased. In her evidence, she deposed that on hearing the incident she went to Government Hospital, Nellore and saw the injured Palani with burnt injuries in the Government Hospital, Nellore and that she noticed burnt injuries all over his body. She categorically stated that when she enquired with her younger brother Palani, he informed her that the accused poured petrol on him and set fire to them for the reason that there was (sic) disputes in between the deceased-Palani and accused on account of illegal intimacy in between accused and PW1-Vanaja. Though she is a related witness, her evidence cannot be treated as interested, more particularly, in view of the tenor of her statement made in her examination-in-chief.
PW-9 is the daughter of the deceased-Palani through his first wife. She deposed that she was not present in the village on the date of occurrence and that she doesn't know that her father sustained injuries and that she doesn't know the affairs in between his father deceased-Palani and the accused.
PWs-10 and 11 are the inquest panchayatdars, who turned hostile, however, their statements in examination-in-chief to the extent of identifying their signatures on the scene observation panchanama and also in the inquest marked as Exs.P.12 & P.13 and P.14 & P.15 respectively, can be taken into consideration.
PW-12 is the son of the deceased and PW-1. In his evidence he stated that in the early hours of the date of the incident, he came to know that his father deceased-Palani and mother PW-1 sustained burn injuries and were admitted in the Government Hospital, Nellore. He further 16 deposed that on the same day in the earlier hours he went to Government Hospital and saw the injured and on enquiry PW-1 and the deceased-Palani informed that the accused poured petrol and set fire to them. He also stated that his father warned the accused not to come and not to talk with his mother (PW-1) and on that the accused poured petrol and set fire to them. In his cross-examination, nothing could be elicited except that now and then there were altercations in between his mother (PW-1) and his deceased-father. However, the suggestion that the deceased-Palani poured petrol himself and set fire to him and sustained burn injuries and that the accused is falsely implicated are denied. Though he is a related witness, his evidence cannot be brushed aside on that count alone, and nothing is elicited in the cross-examination to discredit the same.
PW-13 is resident of Survepalli Kalavakatta, Haranadhapuram, Nellore and having a petty shop at his house. He deposed that he knows PWs-10 and 11- inquestdars and testifies their presence at the time of inquest. Since, he has turned hostile, his evidence to the extent of conduct of inquest by police, can be taken into consideration. Further in the cross- examination by the counsel for the accused, he categorically denied the suggestion that no inquest was conducted in their presence.
PWs-14 and 15 are the mediators to testify the arrest of the accused and recording of confession as per mahazarnama prepared by PW-22 and they turned hostile, except identifying their signatures in the confessional statement of the accused at the time of arrest.
PW-16 is the learned Magistrate, who recorded the dying declaration (Ex.P.21) of the deceased-Palani. She deposed that on receiving intimation 17 from the hospital, she proceeded to the Government Hospital, Nellore and the duty doctor (PW-17) showed two patients and informed that both of them are fit and conscious to give statement. She further deposed that the doctor certified that the patient is coherent to record the statement of Smt. K.Vanaja (PW-1) and after putting some preliminary questions, on coming to the conclusion that the patient (PW-1) is fit to give her statement, recorded Ex.P.1-statement of PW1. She also deposed that the same doctor (PW-17) shown patient namely K.Palani (deceased) and certified that patient (Palani) is fit and coherent to record statement. She also stated that after putting some preliminary questions she came to the conclusion that the patient (Palani) is fit and coherent to record his statement and accordingly recorded his statement under Ex.P.21. She also testified that after recording the statement of the deceased-Palani, the duty doctor (PW-
17) certified that the patient (deceased) was fit and coherent throughout the recording of his statement under Ex.P.21. In her cross-examination, nothing could be elicited to the effect that she failed to adhere to the established procedure of recording dying declaration of the deceased and the same cannot be relied on to rope the accused with the charges levelled against him. Though in the cross-examination of PW-16 an attempt was made to establish that the statements of PW-1 and deceased-Palani were not recorded properly, nothing could be elicited which goes to the root of the case and discard the evidence of PW-16.
PW-17 is the Civil Assistant Surgeon in the Government Hospital, Nellore and she deposed that she certified that PW1 and deceased-Palani are fit and coherent to give statements and also certified after recording statements that they were fit and coherent throughout the recording of 18 statements. No suggestion has been put to her that the burns could have been due to attempt to suicide. Nothing could be elicited from her in cross- examination.
PW-18 is the doctor who issued admission intimation (Ex.P.19) to the Learned Magistrate about the admission of PW1 and Ex.P.20 about the admission of deceased-Palani. Nothing worth mentioning was elicited in the cross-examination of PW-18.
PW-19 is the police constable who acted as a guard at the Government Hospital at the time of post-mortem examination of the deceased and his evidence is insignificant.
PW-20 is the retired Head Constable who went to Government Hospital, Nellore on receipt of intimation (Ex.P.24) and recorded the statement of the deceased under Ex.P.26 (first dying declaration). He specifically stated that the contents of the statement were read over and explained to the witness (deceased) and that he deposed as correct. He further stated that the duty doctor (PW-17) made an endorsement (Ex.P.25) certifying that the patient (deceased) is coherent and answering the questions while the statement was recorded. Nothing could be elicited in his cross-examination except that the time 12-30 was corrected as 00-30. Though it was elicited that the deceased-Palani stated before him that the accused closed the door and poured the petrol from outside the house through the gap between two doors and set fire, no suggestion is made that it is improbable. Further no suggestion is made that the deceased- Palani was not fit and coherent at the time of recording of statement under Ex.P.26. Thus, the evidence of P.W.20 remained unshaken and gives 19 credence to the statement of the deceased-Palani as recorded by him under Ex.P.26.
PW-21 is the Sub-Inspector of Police, who received Ex.P.26- Statement of the deceased-Palani along with Ex.P.24-Hospital Intimation and registered the same as a case in Crime No.159 of 2011 under Section 307 of IPC and issued FIR. In his deposition he stated that he proceeded to the Government Hospital, Nellore, examined the deceased-Palani and PW-1 and recorded their statements separately. He also stated that he recorded the statement of PW-2 son of the deceased at the hospital and proceeded to the scene of offence, examined the neighbours PWs-3, 4 and 8 and later after securing the presence of two mediators PWs-10 and 11, observed the scene of offence and in their presence seized one Kinley empty water bottle with petrol smell (M.O.1), partly burnt T.V. remote of Phillips company (M.O.2), half burnt two rows thread (M.O.3) and ash (M.O.4) from the ground under the cover of mahazarnama (Ex.P.28) and that what all were observed at the time of seizure of the above said articles were mentioned in Ex.P.28. He further deposed that on 31.07.2011 at 17.45 hours he received death intimation of Palani and on that he altered the section of law into Section 302 of IPC and handed over the investigation to PW-22. Though PW-21 was cross-examined extensively, nothing could be elicited which is suggestive that his evidence is not trustworthy, though an attempt is made to elicit discrepancies in the statement of PW-1 recorded by him.
PW-22 is the Inspector of Police, who took up investigation after alteration of FIR and crime from Section 307 IPC to Section 302 IPC. He deposed about his visit to Government Hospital on 31.07.2011 and 20 recording of statement of PW-1 and conduct of inquest over dead body of deceased-Palani on 01.08.2011 after securing inquestdars/panchayatdars. He deposed further that he prepared Ex.P.31-inquest report in the presence of panchayatdars by examining blood relations of deceased-Palani and neighbours. He also stated about the apprehension of the accused and recording of confessional statement in the presence of mediators, who turned hostile by resiling from their earlier statements.
As stated earlier, the case of the prosecution is based on direct as well as circumstantial evidence. When direct evidence is sufficient to prove the case of the prosecution, circumstantial evidence loses its importance. Though number of witnesses on the prosecution side were turned hostile, it cannot be assumed that the prosecution failed to prove its case on the basis of circumstantial evidence. In the present case, the trial Court's Judgment and conviction of the accused are based on the direct evidence i.e., dying declarations of the deceased, PW1-Vanaja and also circumstantial evidence, in which case motive plays an important role. The trial Court relied on the circumstantial evidence of PWs-1, 8, 12 for fixing the culpability of the accused and therefore, the evidence of the said witnesses is required to be considered with great circumspection apart from the evidence of PWs.16 and 20, which have a bearing on the dying declarations of deceased-Palani.
PW-1 is not only a direct witness, but also an injured witness. Although she is a related witness, her evidence cannot be thrown out or disbelieved on that ground, if her evidence is consistent, trustworthy and inspires confidence of the Court. In fact, she is the main witness to speak about the motive. In her evidence, she categorically stated that since 4 21 years prior death of her husband deceased-Palani, she had illegal contact with the accused. She further stated that one year prior to the date of incident, her husband-Palani came to know about the said fact and thereupon he chastised and warned the accused not to visit their house, even then he used to visit their house in the absence of her husband. She also deposed that the accused used to call her informing her that he would come to her house, but she used to reply that the accused should not visit their house. She deposed that on the date of incident during mid night, the accused came to her house and knocked the house door, thereupon she and her husband opened the door and on seeing her husband, the accused ran away. She further categorically stated that they closed the doors without bolting from inside, slept on separate beds and half an hour thereafter they noticed smell of petrol. She stated that she and her husband deceased-Palani woke up and found the accused in the verandah and at that time the accused lit a match stick and thrown on the deceased by saying "CHAVARA NAA KODAKA" and closed the doors bolted from outside and ran away. She also stated that her husband was set fire and then she tried to put off the flames surrounded on the deceased and she also received burn injuries to her both hands and on back and also on face at the time when she tried to put off the flames. She stated that on raising of cries by them, PWs-2 and 3 came and tried to put off the flames and thereafter they were taken to hospital in the auto of PW-4 and police came to the hospital and recorded the statement of her husband and thereafter Magistrate also came to the hospital and recorded their statements separately.
22
In the lengthy cross-examination of PW-1 barring minor discrepancies, nothing could be elicited, which is in deviation to her statements in her examination-in-chief. No suggestion is made to her that she had no illegal contact with the accused and thus the said aspect which remained uncontroverted, itself establishes motive for commission of offence by the accused.
As stated earlier PW-1 is not only a direct witness, but also an injured witness and much credence can be given to her evidence. As held by the Hon'ble Supreme Court in Shivalingappa Kallayanappa v. State of Karnataka5, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered injury during the said incident. A similar view was taken by the Hon'ble Supreme Court in State of U.P. v. Kishan Chand and others6.
Further, though a suggestion was made to PW-1 to the effect that it is a case of suicide, nothing could be elicited in this regard. Had it been a case of suicide, certainly, the match box which is used for setting himself ablaze after pouring petrol himself by the deceased-Palani could have been recovered from the scene of offence. As seen from the scene observation report and Panchanama, no match box was recovered along with the material objects. Further though PW-2 deposed that he tried to put off fire with a blanket, no blanket was recovered from the scene of offence to appreciate the evidence of PW-2 who turned hostile and arrive at a 5 1994 (Supp.) 3 SCC 235 6 (2004) 7 SCC 629 23 conclusion that the deceased-Palani attempted suicide and succumbed to injuries, but not homicide. On the other hand, the evidence of PW-1 who is a direct witness as well as injured witness and PW-8 to whom the deceased-Palani informed that the accused poured petrol on him, coupled with dying declarations, categorically establish that the death of the deceased was homicidal, but not suicide as sought to be projected by the PW-2 who resiled from the earliest statement made to the police Ex.P2.
In the present case, the evidence of PW-1 as noticed above has remained unshaken except for minor variations and her evidence is corroborated by the statements of the other witnesses PW-8, PW-12. A cumulative reading of the evidence of PW-1, PW8 and PW12 clearly supports the case of the prosecution that the motive for the accused for pouring petrol and set fire to the deceased-Palani is the illicit relationship between the accused and PW-1.
In the present case, the deceased gave dying declaration/statement Ex.P.26 to PW-20 and another dying declaration/statement Ex.P.21 to PW-16 stating that the accused developed illegal contact with his wife-PW-1 and since one year he and his wife warned the accused not to come to their house and keeping the same in mind, the accused poured petrol while they were sleeping and lit fire. PW-1 corroborated the said statement of the deceased. PW-8 though related, but an independent witness who is not aware of the disputes between the accused and the deceased-Palani, deposed in her evidence that the deceased-Palani informed that the accused poured petrol on him and set fire to him for the reason that there were disputes in between deceased-Palani and the accused on account of illegal intimacy between the accused and PW1 and on account of the same 24 several times they quarrelled. Thus, the independent witness PW-8 also corroborated the evidence of PW-1, to establish the motive to fix the culpability of the accused. The evidence of PW-8 makes it clear that she is neither aware of the illicit relationship between the accused and PW-1, nor the family affairs of the deceased-Palani prior to the death of the deceased- Palani. Thus, the evidence of PW8 that the deceased-Palani informed her that the accused poured petrol on him and set fire to them on account of illegal intimacy between the accused and PW1-Vanaja, gains credence. Further no suggestion is made to her that out of the enmity or ill-will, she deposed against the accused and in support of prosecution case. Except her relation with the deceased, nothing is elicited in the lengthy cross- examination, which is either contrary or inconsistent with her evidence in examination-in-chief. No doubt PW8 is related witness, but she is not an interested witness, as she will not gain any advantage in the litigation. Her evidence was unshaken, trustworthy and inspires confidence of this Court. Further, the statement/dying declaration of the deceased-Palani recorded by PW-20 and PW-16 is supported by independent witness PW-8 and thus supports the case of prosecution to establish motive which plays a significant role in cases based on circumstantial evidence.
Coming to the dying declarations of the deceased Exs.P.25 and P.21 recorded by PWs-20 and 16 respectively, the same can be the sole basis for arriving at the culpability of the accused. The very statements of dying declarations of the deceased-Palani under Exs.P.21 and P.25 would suffice to establish motive for commission of the offence. In this regard it is not out of place to mention here that certificate of doctor that maker of dying declaration was fit to make statement is not necessary in every case, as 25 held by the Hon'ble Supreme Court in State of Madhya Pradesh v. Dal Singh7. The Hon'ble Supreme Court held that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover the requirement of a certificate provided by a doctor in respect of such state of the deceased is not essential in every case.
However, in the present case as per the evidence of PW16- Learned Magistrate, she put certain questions to the injured/deceased- Palani to know whether he is conscious or not, after obtaining certification from the duty doctor and recorded the dying declaration. On perusal of Ex.P.21, it is clear that the doctor certified the condition of the deceased at two places i.e., before and after the statement of the injured/deceased- Palani is recorded. Thus, there is no procedural irregularity or nothing adverse to disbelieve the evidence of PW-16 who is an independent witness. However, the veracity of the said dying declarations and their evidentiary value requires to be considered with reference to settled legal principles and the facts of the present case.
In Bhajju @ Karan Singh v. State of M.P.8, the Hon'ble Supreme Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which has 7 AIR 2013 SC 2059 8 2012 AIR (Criminal) 400 26 been generally described as dying declaration. The Court in no uncertain terms held in Para 24 of the said Judgment as follows:
"24. ................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 by other evidence."
The Hon'ble Supreme Court in Surinder Kumar v. State of Haryana9 while acquitting the accused in the facts of the said case, however, observed that;
"When a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration."
In Bhajju @ Karan Singh's case referred to supra, the Hon'ble Supreme Court laid down seven guidelines which are akin to seven guide lines out of 10 set out by Hon'ble Supreme Court in Smt. Paniben v. State of Gujarat10, to base conviction of the accused for the grave offences punishable under Section 302 I.P.C, on dying declaration as enunciated hereunder:
i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration [Mannu Raja v. State of M.P (1976) 2 SCR 764]
ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration [State of M.P. v. Ram Sagar Yadav (AIR 1985 SC 416;
Ramavati Devi v. State of Bihar (AIR 1983 SC 164)] 9 (2011) 10 SCC 173 10 AIR 1992 SC 1817 27
iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration [Ram Chandra Reddy v. Public Prosecutor (AIR 1976 SC 1994)]
iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence; [Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC 264)]
v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected; [Kake Singh v. State of Madhya Pradesh (AIR 1982 SC 1021)]
vi) A dying declaration which suffers from infirmity cannot form the basis of conviction; [Ram Manorath v. State of Uttar Pradesh (1981 SCC (Crl.) 531)]
vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC
617)] In Smt. Paniben v. State of Gujarat11 the Supreme Court laid down ten principles, which includes the above seven conditions referred to in Bhajju @ Karan Singh's case cited above and the remaining three principles are as follows:
"viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza v. State of Bihar (AIR 1979 SC 1505)] 11 1992 AIR 1817 28
ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail [Nanahau Ram and another v. State (AIR SC 912)]
x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan (AIR 1989 SC 1519)].
These guidelines are again reiterated by the Supreme Court in Muthu Kutty and another v. State by Inspector of Police12 and Sunder Lal v. State of Rajasthan13.
In Shudhakar v. State of Madhya Pradesh14, the Hon'ble Supreme Court while dealing with a case of multiple dying declarations upheld the conviction based on second and third dying declarations. The Hon'ble Supreme Court, inter alia, held that ;where multiple dying declarations made by deceased are either contradictory or are at variance with each other to a large extent, test of common prudence would be to first examine which dying declaration is corroborated by other prosecution evidence. The Hon'ble Supreme Court further opined that the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which 12 2004 (6) Suppl SCR 222 13 (2007) 10 SCC 371 14 (2012) 7 SCC 569 29 would guide the exercise of judicial discretion by the court in such matters. The Hon'ble Supreme Court referred to some of the earlier precedents and it is profitable to extract the same hereunder:
"23. In the case of Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of A.P. [(2004) 10 SCC 769], this Court, while declining to accept the findings of the Trial Court, held that the Trial Court had erred because in the case of multiple dying declarations, each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.
24. Similarly, in Sher Singh & Anr. v. State of Punjab [(2008) 4 SCC 265], the Court held that the absence of doctor's certification is not fatal if the person recording the dying declaration is satisfied that the deceased was in a fit state of mind and the requirement of the doctor's certificate is essentially a rule of caution. The Court, while dealing with the case involving two dying declarations observed that the first dying declaration could not be relied upon as it was not free and voluntary and the second statement was more probable and natural and mere contradiction with the first will not be fatal to the case of the prosecution.
25. The Court held as under: (Sher Singh's case, SCC pp.271-72 paras 16-17) "16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind 30 and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise."
In the ultimate analysis of the legal precedents, and evidence on record, the Hon'ble Supreme Court in the facts and circumstances of the case concluded that the second and third dying declarations are authentic, voluntary and duly corroborated by other prosecution witnesses including the medical evidence and that the dying declarations read in conjunction with statement of the prosecution witnesses can safely be made the basis for conviction of the accused.
In yet another case of multiple dying declarations in Raju Devade v. State of Maharashtra15, the Hon'ble Supreme Court while referring to the Judgments in State of Punjab v. Parveen Kumar (2005 (9) SCC
769), Shudhakar v. State of Madhya Pradesh (2012 (7) SCC 569), Lakhan v. State of Madhya Pradesh (2010(8) SCC 514), Nallam Veera Satyanandam v. The Public Prosecutor (2004(10) SCC 769) etc., inter alia, observed as follows:-
15
(2016) 11 SCC 673 31 "22. In Lakhan's case, this Court provided clarity, not only to the law of dying declarations, but also to the question as to which of the dying declarations has to be preferably relied upon by the court in deciding the question of guilt of the accused under the offence with which he is charged. The facts of that case were quite similar, if not identical to the facts of the present case. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused therein and his family members. The deceased had made two different dying declarations, which were mutually at variance.
The Hon'ble Supreme Court looking to the facts of the case, considered the three dying declarations of the deceased as appreciated by the Courts below and upheld the conviction of the accused based on the dying declaration of the deceased recorded by the Executive Magistrate, in question - answer form in the presence of two employees of rural hospital.
Further, two Division Benches of this Court in Criminal Appeal No.226 of 2013 dated 18.07.2019 and Criminal Appeal No.1090 of 2014 dated 19.05.2020 elaborately dealt with evidentiary value of dying declarations in the light of various judicial precedents and upheld the Judgment of conviction passed by the Trial Court while appreciating the evidence on record. The purport of the ultimate analysis of plethora Judgments made in the said Judgments, inter alia, is that when there is inconsistency in the multiple dying declarations on material aspects, the Court cannot base conviction on the dying declarations and Court must insist corroboration.
It is profitable to extract the relevant portion of the Judgment in Criminal Appeal No.1090 of 2014 which is applicable in the context of the present case here under:
32
"Moreover, it is the consistent view of the Apex Court in all the judgments referred supra that, though a dying declaration is entitled to great weight, it is worthwhile to note that the learned counsel for the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the 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 Apex Court has laid down in several judgments the principles governing dying declaration, which are summed up in the earlier paragraphs as indicated in Smt. Paniben v. State of Gujarat (10th cited supra). Thus, from the law declared by the Apex Court in various judgments, the Court has to satisfy itself that the injured was not tutored or prompted by any person and that the statement was given voluntarily in fit state of mind and truthful, taking into consideration of the surrounding circumstances of the case."
In the present case, two dying declarations were recorded - one by PW-20 under Ex.P.25 and another by PW-16 under Ex.P.21. In the statement recorded by PW-20 which was at the first instance, the 33 deceased-Palani stated that the accused had illicit relation with his wife PW1-Vanaja and since accused was not allowed to visit the house of the deceased-Palani, the accused poured petrol and set them ablaze. The Doctor-PW17 certified vide Ex.P.25 that the patient/deceased-Palani is conscious and coherent and answering to questions while statement was recorded. In the second dying declaration-Ex.P.21 recorded by the Learned Magistrate (PW-16) to the specific questions the deceased-Palani categorically stated about the illicit relationship between PW-1 and the accused, pouring petrol and set fire to them. He stated that the accused did that as his wife PW1-Vanaja is not talking to the accused. The said statement was recorded in the presence of Doctor-PW17 who certified that the patient is fit and coherent to record statement before recording the same and patient is fit and coherent through out recording of statement and after completion of the same. In both the statements, the deceased- Palani categorically mentioned about the illicit relationship between PW-1 and the accused, pouring of petrol and setting ablaze by the accused.
Thus, the dying declarations are consistent to the effect that the accused poured petrol on the deceased and the reason for the same is illicit relationship between PW-1 and the accused. At the time of recording both the statements, the doctors were present and certified that the patient/deceased-Palani was fit and coherent to give statement. Since there are no variations on material aspect of cause of death and assailant in the statements-Exs.P.21 and P.25 of the deceased-Palani with regard to pouring petrol and setting fire by the accused more so against the undisputed fact that the PW1-Vanaja wife of the deceased had illicit relation with the accused, this Court is of the considered opinion that the said dying 34 declarations are trustworthy, reliable and form strong basis for conviction of the accused, even in the absence of any corroborative evidence. Further, in similar circumstances the Hon'ble Supreme Court in the case of Raju Devade's case referred to supra, upheld the conviction on the basis of dying declaration recorded by Executive Magistrate in question and answer form. The said Judgment squarely applies to the facts of the case. In the present case, the learned Magistrate-PW16 recorded the dying declaration-Ex.P.21 in the presence of doctors who certified that the deceased-Palani is fit and coherent to give statements. For that matter even the first dying declaration-Ex.P.26 recorded by PW-20 suffers from no infirmity and satisfies the tests laid down by the Hon'ble Supreme Court and followed by the Division Benches referred to supra. Further, it is pertinent to refer to the Judgment of the Hon'ble Supreme Court in Lakhan v. State of Madhya Pradesh16, which dealt with two different dying declarations of the deceased which were mutually at variance. The relevant paras of the said Judgment reads as follows:-
"9. The doctrine of dying declaration is enshrined in the legal maxim 'Nemo moriturus praesumitur mentire', which means 'a man will not meet his Maker with a lie in his mouth'. The doctrine of Dying Declaration is enshrined in Section 32 of the Indian Evidence Act, 1872 (hereinafter called as, 'the Evidence Act') as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.16
(2010) 8 SCC 514 35
10. This Court has considered time and again the relevance/ probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration.
It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution's version differs from the version given in the dying declaration, the said declaration cannot be acted upon."
Applying the above said legal principles, it is to be noted that in the present case, there is no variance with regard to involvement of the accused, pouring of petrol and setting the deceased ablaze, except that the statement recorded by PW16-Magistrate is brief and in question and answer form. Even consideration of the two dying declarations separately would also stand by themselves and lean towards guilt of the accused. No suggestion is also made to the witnesses that the deceased was tutored to give such statements. No suspicious circumstances exist to disbelieve Ex.P.21 and P.26-statements of deceased, made voluntarily by the deceased-Palani.
36
Thus, this Court finds no reasons to discredit the said dying declarations as the same categorically points towards the culpability of the accused beyond reasonable doubt and accordingly hold that the accused is guilty of charges levelled against him punishable under Sections 302 and 324 of IPC.
Even the evidence of P.W.1, P.W.8, P.W.16, P.W.20 corroborates the case of prosecution and establishes the motive for commission of offence, though it is of less significance/academic in view of the conclusion arrived at that the accused is guilty of charges levelled on the basis of the dying declarations referred to above.
Turning to the Judgment of the trial Court, as mentioned earlier, it took into consideration the dying declarations-Ex.P.26 and P.21 of the deceased and arrived at a conclusion that the accused is responsible for the incident placing reliance on the said statements as also on appreciation of the corroborative evidence of the prosecution witnesses- PW-1, PW8, PW12 and PWs.2 &3 to some extent. This Court on reappreciation of the evidence on record and in view of the principles laid down in the Judicial precedents referred to supra which are applicable to the facts of the present case, is of the considered opinion that the Judgment of the Trial Court warrants no interference insofar as the conviction and sentence imposed on the accused for the offence punishable under Sections 302 of IPC. Accordingly, point No.1 is answered against the accused.
Insofar as the conviction and sentence as imposed by the Trial Court on the accused with regard to offence under Section 324 of IPC is 37 concerned, the Trial Court rested it's conclusion on the basis of evidence of PW18-Dr. S.Renuka Devi and Ex.P.23-Wound Certificate issued by her. Section 324 of IPC may be extracted hereunder for ready reference:
324. Voluntarily causing hurt by dangerous weapons or means.--
Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
It is no doubt true that as per the evidence on record, P.W.1-Vanaja sustained burn injuries in the incident that occurred on 29.07.2011. As per the testimony of P.W.1-Vanaja, when she tried to put off the flames surrounded on her husband, she also received burn injuries to her both hands, on her back and also on her face at the time when she tried to put off the flames. Thus, it is clear that she sustained burn injuries when she tried to put off the flames. To attract Section 324 of I.P.C., the element of voluntarily causing of hurt should be present.
In the present case, the prosecution's case is that in view of the illicit relationship between P.W.1-Vanaja and the accused, as the deceased admonished and warned the accused not to visit his house bore grudge against him, hatched a plan to do away with him and continue his illicit relationship with P.W.1-Vanaja. So, there is no intention to cause any hurt or harm to P.W.1-Vanaja nor is it the case of the prosecution to that effect. As per the evidence of P.W.1-Vanaja, she sustained burn injuries when she tried to put off the flames on her husband. However, the commission of offence by pouring petrol by the accused is proved beyond reasonable doubt. Though there is no specific intention on the part of the 38 accused cause any hurt, as the act of pouring petrol and setting fire to the deceased while P.W.1-Vanaja was also present with the deceased would attract above said provision of Law as the said act of the accused is likely to cause death of P.W.1-Vanaja. Therefore, this Court finds no reason interfere with the conviction and punishment as awarded by the Trial Court even in respect of the offence under Section 324 of I.P.C., and the same is accordingly upheld by answering the point No.2 against the accused.
In view of the aforegoing reasons, the contentions raised and grounds urged in support of the appeal by the Learned counsel for the appellant are rejected.
In the result, the appeal is dismissed and conviction and sentence passed in Sessions Case No.66 of 2012 on the file of the Court of the Principal Sessions Judge, Nellore, against the appellant/accused are confirmed.
_____________________________________ JUSTICE M.SATYANARAYANA MURTHY, J ____________________________ JUSTICE NINALA JAYASURYA, J Date: 14.08.2020 AKC 39 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY AND THE HON'BLE SRI JUSTICE NINALA JAYASURYA CRIMINAL APPEAL No.119 of 2014 Dt: 14.08.2020 AKC