Naguloncha Krishna vs The State of Andhra Pradesh

N.Y. Hanumanthappa, J.—This appeal is by the accused in Sessions Case No. 328 of 1994 on the file of the Sessions Judge, Khammam, who by his judgment and order dated 29-1-1996 convicted the appellant herein for the offence punishable u/s 302 of Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 250/- in default to undergo Rigorous Imprisonment for three weeks.

Madhira Rural Police registered a case against the appellant/accused for an offence u/s 302, I.P.C. on the ground that he was responsible for causing the death of his second wife Smt. Satyavathi. After completion of investigation, charge-sheet was laid before the Judicial Magistrate of First Class, Madhira and a case was registered as R.P.C.No. 17 of 1994. The learned Magistrate, after seeing that the offence is one which is exclusively triable by a Court of Sessions, committed the case to the learned Sessions Judge, Khammam. The learned Sessions Judge, Khammam, on receipt of papers, took cognizance of the case and registered it as Sessions Case No. 328 of 1994. After hearing both sides, the following charge was framed against the appellant/accused :

"That you on or about the 11th day of March, 1994 at about 3.00 a.m., at the house of Naguloncha Nagendramma in Khammampad village cut the throat of your wife Satyavathi and she succumbed to the said injury at about 12.45 hours, while undergoing treatment and thereby committed an offence punishable u/s 302 of Indian Penal Code and within my cognizance."

The above charge was read over and explained to the accused/appellant, but he pleaded not guilty. Then, evidence was led in. On prosecution side, 16 witnesses were examined as P.Ws. 1 to 16 and 15 documents were marked as Exs. P-1 to P-15. No evidence was adduced on behalf of defence except marking portions of 161, Cr.P.C. statements of P.W.4 as Exs. D-1 to D-3 After closure of evidence, the accused was examined u/s 313 of the Code of Criminal Procedure. Then, the learned Sessions Judge hear both sides followed by evaluating the entire evidence and reaching the conclusion that the accused/appellant was responsible for causing the death of his second wife Smt. Satyavathi and resulting in his conviction for the offence punishable u/s 302 of Indian Penal Code and sentencing him to undergo imprisonment for life. Hence, this appeal.

A few facts which are necessary to dispose of the appeal are as follows :

The deceased by name Satyavathi is the second wife of the accused/appellant. Their marriage was performed about eight months before her death, on 10-3-1994. Before marrying the deceased, the accused/appellant was married to one Durga of Anigandlapadu village. She is first wife. However, the first wife of the accused/appellant, unable to bear the suspicious nature and the inferiority complex of the accused, divorced him and left him one year after their marriage. Some time later, the accused/appellant married the present deceased as his second wife. The accused, his second wife and her parents are residents of Khammampad. At the time of marriage with the deceased, the accused was having a Barber Shop at Madhira.

Five months after their marriage, the accused, suspecting the character of the deceased, started harassing her mentally and sold away the Barber shop and shifted his residence to the village of Jujjur. There, the accused stopped doing the barber work and kept a watch on the deceased, suspecting her fidelity.

Unable to bear the suspicions nature of the accused, the deceased wanted the accused to shift the family to Kandranadu due to lack of security. About one month prior to the death of the deceased on 10-3- 1994, the accused shifted the family to Kandrapadu village. There also, be stopped doing Barber work and continued to harass her. The accused, who is an illiterate, approached P.W.7 (T. Pulla Rao) and dictated two letters - one suspecting the fidelity of the deceased and her mother and the other, threatening his father-in-law to stop the activities of his wife and daughter. Subsequently, on the Sivaratri day i.e. on 10-3-1994 the accused took the deceased to Kudelli Jathara and from there to Madhira Sivaratri Jathara. Thereafter, they went to a Movie at Madhira. On the same day, they went to their house at Khammampadu village, where the sister-in-law of the accused, P.W.2 (N. Nagendramma) made arrangements for them and she herself slept in the varandah. The deceased and the accused slept on a cot inside the house, bolting the door from inside. Around 3.00 p.m., the accused sat on the chest of the deceased while she was in deep sleep and cut her throat with a knife, repeatedly. The deceased woke up, struggled with the accused and managed to get up from the cot, removed the bolt of the door and ran outside and fell down unconscious under the pendal. The accused placed the knife in the eaves of the house and followed the deceased. On hearing the hue and cries of P.W.2, the neighbours came out. On seeing them, the accused ran away into the darkness. Then, the deceased was shifted to the Government Hospital, Madhira for treatment.

P.W.1 (M. Koteswara Rao) lodged a report against the accused with Madhira Police and the same was registered as Crime No. 11 of 1994 u/s 307, I.P.C. and investigation was taken up. During the course of investigation, witnesses were examined, their statements were recorded, scene of offence Panchanama was conducted before the mediators and thereunder, blood-stained earth and blood stained clothes were seized. On a requisition made by the Police, P.W.12 (I. Krishnaiah), Judicial Magistrate of First Class, Madhira, recorded the dying declaration of the deceased. Subsequently, while under-going treatment in the hospital, the deceased succumbed to her injuries on 11-3-1994 at 12.45 p.m.

On receiving the death intimation from the Hospital, the section of law was altered by the Police from Section 307, I.P.C. to Section 302, I.P.C. and express Memos were sent to all concerned. Then, inquest was held over the dead body before the panch witnesses and the body was sent to post-mortem examination. P.W.13 (Dr. N. Krishna Reddy), who conducted autopsy over the dead body, opined that the deceased died due to shock and haemorrhage on account of the cut injuries on her throat. Therefore, the two letters written by P.W.7 at the dictation of the accused, were seized from the house of P.W.7, under a panchanama. The material objects were sent to the DFSL, Hyderabad for examination and report.

On 25-9-1994, around 11.00 a.m. the accused was arrested at Yerrupalem bus stage. When interrogated before Panch witnesses, P.W. 11 (Gurrala Ramireddy) and L.W.10, the accused voluntarily confessed his guilt of commission of the offence and undertook to show the knife used by him in the commission of the offence. The same was later seized by the Police under a cover of panchanama. Subsequently, the accused was sent for remand.

Smt. Bhaskara Lakshmi, learned advocate appearing for the appellant argued that the appreciation of evidence by the Court below is quite incorrect and that the trial Court committed a mistake in taking into consideration the dying declaration i.e. the mandatory requirement of recording the statement of a victim in the presence of the doctor that too on a certificate that the victim is conscious and fit to understand the question put to her and and answer the same. Hence, the so-called dying declaration is inadmissible in evidence. She further contended that motive is not proved by the prosecution and that if the evidence was considered dispassionately, the finding would have been one of acquittal of the appellant. She contended that there is much inconsistency and many contradictions in the evidence of the witnesses. The trial Court should have taken into consideration the omissions in the evidence. It is her contention that the trial Court proceeded under the impression that the appellant really committed the offence, thus picking up only those portions of the evidence which suits such inference. She further contended that the findings reached are based on surmises and conjuctures unsupported by acceptable evidence. To support her case that if a dying declaration is not recorded in the presence of a doctor and that non-examination of the doctor is fatal to the case and vitiates the proceedings, she relied upon the decision rendered in Pamni Bai Vs. State of Madhya Pradesh, , wherein it is held that a dying declaration made u/s 32 of Indian Evidence Act cannot be accepted for the reason that the dying declaration of the victim is recorded by the Tahsildar and Executive Magistrate, neither a Certificate was obtained by the doctor nor is there any independent corroboration to it. As such, the dying declaration shall not be acted upon. In Venkappa Kannappa Chowdari Vs. State of Karnataka, the evidentiary value of dying declaration was dealt with. The Karnataka High Court had also the occasion to deal with the plea of intoxication in this case. The accused in this case is alleged to have killed his wife by burning and the dying declaration recorded by the Tahsildar without ascertaining from the doctor as to whether the deceased was in a fit condition to make such declaration, which was not in the form of question and answer, was held to be unreliable. However, it is reliable if evidence shows that it was recorded in the presence of a doctor and if there is no contradiction between the said dying declaration and the evidence of witnesses. With regard to the question as to how far the plea of intoxication be accepted in a case of death of wife due to burn injuries when it is shown in the statement in dying declaration that the accused, after consuming liquor, quarrelled with his wife and then poured kerosene on her and set fire, it was held that the case does not fall u/s 85, I.P.C. The Karnataka High Court observed as follows (at Page 18) :

"A person under intoxication can be excused if he had committed any offence provided intoxicating material was given to him without his knowledge and against his consent and a person cannot become himself drunk with liquor and commit an offence and then come and say that he had consumed the liquor and, therefore, the benefit of Section 85 would be given to him."

The third case on which Smt. Bhaskara Lakshmi, the learned counsel relied upon is the one decided by the Supreme Court in the case of Kanchy Komuramma v. State of Andhra Pradesh with Kanchy Ramchander v. State of Andhra Pradesh 1996 SCC (Cri) 31, wherein the Supreme Court held as follows :

"The failure of the prosecution to establish that the deceased, before she made the dying declaration, was in proper mental condition to make the dying declaration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it. That the dying declaration has been recorded by a Judicial Magistrate by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the Court. In the present case the prosecution did not examine the doctor who is alleged to have made endorsement on the dying declaration that "the patient was in a fit state of mind to depose". No other witness was examined to prove the certificate of the doctor either. The non-production of doctor to provide his certificate and subject himself to be cross-examined by the appellants when considered in the light of the testimony of the mother of the deceased, who specifically stated that the condition of the patient was not good and that she was not in a fit condition, creates a doubt as to whether the patient was actually in a proper mental condition to make a consciously truthful statement. This infirmity renders it unsafe to rely on the dying declaration.

There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law. These safeguards have not been observed in the present case."

Smt. Bhaskara Lakshmi, the learned counsel for the appellant also contended that the evidence of the prosecution consists of contradictions and inconsistencises. There is no corroboration as to the occular and medical evidence. In spite of the existence of such infirmities, ordering conviction of the appellant by the trial Court is quite bad and illegal and as such, the same deserves to be set aside.

Sri Kailasnath Reddy, learned Additional Public Prosecutor supported the judgment and order passed by the trial Court. According to him, the trial Court considered each and every aspect of the case, weighed the evidence of the witnesses properly and reached the correct conclusion. Regarding the effect of dying declaration, the trial Court took into consideration Ex. P-8, the dying declaration made by the deceased in the hospital, to the Magistrate, in the presence of the doctor. There is no illegality. The dying declaration reads that the deceased was certified by the doctor as to his physical and mental condition viz., that the deceased was fit and capable of understanding the questions put to him. The declaration was made before the Magistrate. Mere non-examination of the doctor in whose presence the dying declaration was recorded, is not fatal and will not vitiate the protection case. According to him, the dying declaration is supported by the statement of the Magistrate, who gave evidence, and other circumstances as disclosed by the witnesses. Thus, there is much corroboration and consistency in the evidence of the prosecution witnesses and as such, no interference is warranted in the findings given by the learned Sessions Judge.

We went through the entire judgment so also the evidence given. The case is built up by the prosecution on many grounds, but the main ground is on the basis of the dying declaration. If we accept the dying declaration to be correct, the conviction ordered by the trial Court holds good. But, if we do not accept the dying declaration, then the case of the prosecution must fail. Section 32(1) of the Indian Evidence Act, which deals with dying declaration, reads as follows :

"When it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in this death, in cases in which the cause of that person''s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

A dying declaration is admissible in evidence, but before admitting a dying declaration in evidence, it should be made sure that the person making it knew that he was dying or that he was in danger of approaching death. While placing reliance on a dying declaration, greatest caution must be exercised in considering the weight to be attached to it on account of many considerations which may effect its truth. The dying declaration is only a piece of untested evidence and any other evidence must satisfy the Court that what is stated therein is an unalloyed truth and that it is absolutely safe to act upon it. A dying declaration recorded by a magistrate is ''evidence'' and can be admitted proof u/s 80 as held in Suraj Bali Vs. Emperor . A dying declaration recorded by doctor is of great value as held in Abdul Majid Abdul Rahman Vs. State of Gujarat, . However, a dying declaration made to a doctor, but not recorded is admissible if proved by his evidence vide decision of the Supreme Court in Sital v. State AIR 1956 SC 82 . All that is required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind as held by the Supreme Court in Lallubhai Devchand Shah and Others Vs. The State of Gujarat, and K. Ramachandra Reddy and Another Vs. The Public Prosecutor, followed in The State of Uttar Pradesh Vs. Het Ram and Others, . When the doctor on duty was not available, the statement of a Doctor not attached to the hospital that the victim was in a fit condition to make a statement, can be accepted as laid down in Ashok Kumar v. State 1983 Cri LJ 147. In Dayaram Singh Vs. The State of M.P., the Madhya Pradesh High Court held that the oral dying declaration supported by the evidence of eye-witnesses cannot be rejected merely because the fit condition of the injured to make the statement was not spoken to by the doctor. The relevant to be proved is the statement made by the deceased and that statement is not the document made by the Magistrate, but the verbal statement made by the deceased person. Where it is not possible to secure the presence of the doctor immediately or his whereabouts are not known, his declaration can be approved by making reference to the hand-writing as has been approved by the Supreme Court in Prithi Chand Vs. State of Himachal Pradesh, . The scope of dying declaration to be made applicable in a case, has been explained by the Supreme Court in the case of R. v. Premananda ILR 52 Cal 987 : (26 Cri LJ 1256) as a dying declaration is relevant under the Act whether the person who made it was or was not at the time when it was made, under expectation of death and the weight to be attached to it depends not upon the expectation of death which is a guarantee of its truth, but upon the circumstances and surroundings under which it was made and very much also upon the nature of the record that has been made of it.

If there is more than one dying declaration and all such dying declaration are consistent, then there will be no problem in accepting the same. But, if there is inconsistency in such dying declarations, then the safe course will be to discard such dying declarations and decide the case on the availability of other material. However, when a dying declaration is made before a Magistrate and the same is made in proper form i.e. in question and answer form with his endorsement that too on its being certified by the doctor, it will have evidentiary value and the same be accepted and acted upon. A division Bench of this Court in Wadapally Venkanna @ Gadiyaram Venkanna v. State of Andhra Pradesh 1991 (2) APLJ 368 held that sometimes, dying declaration be acted upon for an order of conviction or acquittal, making reference to the earlier decisions. But, a doubt may create in the mind of the Courts that it may not be safe to accept the dying declaration if, by giving evidence, it is established that the dying declaration was made after considerable time from the date of incident and the possibility of the victim''s kith and kin being with him and the circumstances disclose the possibility of the victim being tutored.

After giving our careful thought to the scope of Section 32 of the Indian Evidence Act, its interpretation by the Courts in the decisions referred to above and cited by Smt. Bhaskara Lakshmi and other decisions referred to by us and comparing the same with Ex. P-8, the dying declaration, we are of the view that the said dying declaration is properly recorded and it has been certified by the doctor as to the fitness of the deceased when it was made and that non-examination of the doctor had not vitiated the proceedings. Further, the circumstances explained by the deceased before the Magistrate at Ex. P-8 is corroborated by other evidence given by the witnesses. Though it is not dealt at length by the learned Sessions Judge, but the conclusion reached by him in accepting the dying declaration, supported by other evidence, and convicting the appellant/accused for the offence punishable u/s 302, I.P.C. is in no way illegal or arbitrary. As such, we do not find merit in any one of the contentions raised by the learned counsel for the appellant.

In the result, the Criminal Appeal is dismissed and the conviction of the appellant for the offence punishable u/s 302, I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 250/- in default to undergo Rigorous Imprisonment for three weeks are confirmed.

The services rendered by Smt. Bhaskara Lakshmi as amicus-curiae counsel, though failed, in conducting the case in an effective manner, that too taking us through number of decisions on important decisions involved in the case is appreciated and placed on record.

Appeal dismissed.