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Judgment
G. Yethirajulu, J.—This is an appeal preferred by A.1 and A.2 against the judgment passed by the Additional Sessions Judge, Hindupur in Sessions Case No. 532 of 2002, dated 15.9.2004. They were charged for the offence u/s 302 r/w Section 34 of I.P.C. for allegedly killing the wife of A.1 by pouring kerosene and setting fire on her by dragging into the house of A.2 on the intervening night of 7/8.7.2001 at 2.00 a.m. The accused denied the charges and claimed for trial.
The story of the prosecution leading to the conviction of the appellants-accused, in brief, is as follows:
The deceased was the wife of A.1. A.1 was having illicit intimacy with A.2, who was residing in the same locality. On account of the illicit intimacy with A.2, A.1 neglected his family. On 7.7.2001, as the second son of the deceased was not well, she went to the house of A.2 at about 2.00 a.m. in search of her husband i.e. A.1 and she found A.1 and A.2 together and requested A.1 to come to her house, but he refused to do so. On the other hand, A.1 dragged the deceased inside the house of A.2, A.2 poured kerosene on her person and A.1 took a matchbox and lit fire to the clothes of the deceased. Unable to bear the flames, the deceased raised cries and ran out of the house and on seeing her, the neighbours put off the flames and her son admitted her in the hospital. While undergoing treatment, the deceased died on 19.7.2001 i.e. 11 days after the incident. On a complaint given by P.W.1 a crime was registered u/s 307 I.P.C. and later, it was altered to 302 I.P.C. After registration of the crime, the police took up investigation, recorded the statements of the deceased, observed the scene of offence and on death of the deceased, held inquest over the dead body, and sent the dead body for post-mortem examination. They also got the dying declaration of the deceased recorded by the Magistrate. After completion of the investigation, the police laid the charge sheet.
The prosecution, in order to prove the guilt of the accused, examined P.Ws.1 to 8 and marked Exs.P.1 to P.14. No oral evidence was adduced on defence side, but Xerox copy of statement of the victim was marked as Ex.D.1. The learned Sessions Judge after evaluating the oral and documentary evidence, found both the accused guilty of the offences and convicted them for the offence u/s 302 r/w Section 34 I.P.C. and sentenced each of them to undergo imprisonment for life and also to pay a fine of Rs. 1,000/- each, in default, to suffer simple imprisonment for three months. Being aggrieved by the judgment of the lower Court, dated 15.9.2004, the appellants preferred the present appeal challenging its validity and legality. The plea of the appellants-accused is one of total denial.
The point for consideration in this appeal is:
Whether the prosecution proved the guilt of the accused beyond reasonable doubt?
P.Ws.1 to 3, who are said to be the eyewitnesses, turned hostile and did not support the version of the prosecution. The doctor, who was examined as P.W.6, conducted autopsy over the dead body of the deceased and found the following injuries:
Rigor mortis present in 4 limbs. Infected burns present all over the body except soles, perineal region and centre of scalp. Synging of hair present. Foul smell coming from burn area. Tongue inside the mouth.
Internal examination:- Head - skull bones intact. No abnormality detected, brain congested. Neck - Hyoid bone intact. Chest - Ribs intact. Both lungs congested. Heart - Empty. Abdomen - Liver -congested, spleen - congested. Both kidneys congested. Stomach - mucosa congested. Empty. Small intestains congested. Uterus:- No abnormality detected. Bladder - empty. Spine and other bones intact.
The doctor opined that the deceased would appear to have died of Septicemic shock due to burns. The deceased died 11 days after the date of occurrence.
After excluding the evidence of P.Ws.1 to 3, there remains the dying declarations said to be given by the deceased. Ex.P.5 is the dying declaration given by the deceased to the Magistrate, who was examined as P.W.5. Ex.P.7 is another dying declaration, which is a statement recorded by the Assistant Sub-inspector of police from the deceased. Ex.P.11 is another dying declaration, which is a statement of the deceased recorded by the Sub-inspector of Police on 8.7.2001.
Smt. K. Lalitha, learned Counsel appearing on behalf of the appellants submitted that the version given by the deceased in Exs.P.5, 7 and 11 are different and there is no consistency regarding the overt acts attributed to the accused. Therefore, there is any amount of doubt whether the deceased gave the truthful version regarding the incident and hence, benefit of doubt must be given to the accused.
In Ex.P.5 dying declaration recorded by the Magistrate at 8.00 a.m. on 8.7.2001, the deceased stated as follows:
Yesterday night at about 2.00 a.m., Shakeera, W/o. Shafiulla, (concubine of my husband), poured kerosene oil on my person and set fire to me. My husband remained as a spectator, he did not try to save me. My mother-in-law by name Beebijan, w/o. Gafoor Sab, subjected me to cruelty and troubling me to go away, leaving the house. My husband had been abusing and beating me and troubling me to die, by swallowing anything. My mother-in-law, my husband and my brother-in-law brought me to the hospital.
In Ex.P.7, the relevant portion of the version given by the deceased is as follows:
Yesterday i.e. on 7.7.2001 night as my husband did not return home till late night, at about 2.00 a.m. I went to the house of Shakeera in order to get back my husband, if available at her house and found my husband and Shakeera together thereat. When I called my husband to my house, he stated that he will not come. But, I stayed there itself, calling for my husband, my husband, stating that unless I die, they cannot live happily, dragged me into the house of Shakeera, then Shakeera poured kerosene oil on my body, my husband set fire to me by litting match-stick. Then my entire body and face were burnt.
In Ex.P.11, the relevant portion of the version given by the deceased is as under:
Yesterday i.e. 7/8.7.2001 as my younger son Jeelan Basha was not feeling well, at about 10.00 p.m., expecting my husband at the house of Shakeera Bee, I went to her house to bring back my husband and when I called my husband to come home, he did not come. Again, at about 2.00 a.m., I went to the house of Shakeera Bee to call my husband to home as the health of my son was not good, then he stated to me that unless I die, there cannot be happy moments to them, my husband dragged me inside the house and Shakeera Bee poured kerosene oil available in the house on my person and my husband lit a match-stick and set fire to me. I cried loudly due to the flames. Then the neighbours came and set off fire by pouring water. My entire body and face were burnt.
On comparing the versions given by the deceased, it is noticed that in Ex.P.5 she mentioned that A.2 poured kerosene and set fire to her and A.1 remained as a spectator. He did not intervene. Whereas, in Exs.P.7 and P.11 statements, she mentioned that A.2 poured kerosene and A.1 set fire to her by litting a match-stick, due to which, she received burns. The version given by the deceased in Exs.P.7 and 11 is different from the version given by her in Ex.P.5 dying declaration. Ex.P.5 version is the earliest one recorded by the Magistrate. Though P.W.4, the doctor certified that the deceased was conscious, coherent and was in a fit state of mind to give statement, it appears that she does not want to implicate A.1 in the commission and therefore, the pouring of kerosene and litting of match-stick was attributed to A.2 only. Whereas, in the statements recorded by the Assistant Sub-inspector of police and the Sub- inspector of Police a different version was given attributing overt acts to both the accused, but there is doubt as to which version is correct.
The learned Counsel for the appellants submitted that when there is a contradictory version given by the deceased in various statements, the accused is entitled for benefit of doubt. In support of her contention, she relied on a judgment of the Apex Court in State of Punjab v. Parveen Kumar (2002) 1 SCC (Cri) 146. In the said decision, the Apex Court while appreciating the facts, at para 8 of the judgment observed as under:
It will thus appear that so far the first dying declaration is concerned, there is no allegation against either the mother-in-law, the father-in-law or the sister-in-law and the allegation is solely against the respondent, who is said to have sprinkled kerosene oil on her and set her on fire. In the second dying declaration, the allegation is that the mother-in-law sprinkled the kerosene oil and the husband set her on fire with a matchstick. While they were doing so, her father-in-law and sister-in-law were exhorting them to do away with her by setting her on fire. These two versions are quite different and not consistent with each other, except, that so far as the respondent is concerned, the act of lighting the fire is ascribed to him in both the dying declarations.
At para 10, the Apex Court held thus:
While appreciating the credibility of the evidence produced before the Court, the court must view the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence....
In Smt. Kamla Vs. State of Punjab, , the Supreme Court held that:
If we examine all these dying declarations one by one we notice glaring inconsistencies as to who exactly poured kerosene and set fire or whether she caught fire accidentally. Suicide however is ruled out. In Ex.PB/2 recorded by PW2 the deceased stated that her mother-in-law sprinkled kerosene from behind and burnt her. In the next statement Ex.DA recorded by Dr. Jaison Chopra, CW 1, she is alleged to have stated that her clothes got burnt catching fire from the stove, thereby indicating that it was an accident. In the third statement Ex.PJ recorded by CW 2 she was rather vague as to who exactly poured kerosene and set fire on her and she only stated that it could be possible that her mother-in-law and father-in-law might have set the fire after pouring kerosene. On September 30, 1979 Ex.PD was recorded in the presence of three doctors, PW 7, PW 3 and CW 1 wherein she stated that she turned to the store and she heard her mother-in- law and father-in-law talking behind her and suddenly they poured kerosene and they set her on fire.
In Jai Karan Vs. State of (N.C.T. Delhi), , it was held:
A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premises which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on a strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable.
In Balbir Singh v. State of Punjab 2006 AIR SCW 4950, the victim in her dying declaration recorded by the doctor stated that her husband had poured kerosene upon her and upon igniting, locked door of bathroom from outside. In the second dying declaration before the Investigating Officer, the victim stated that her husband and mother-in-law committed the offence.
Under the above circumstances, the Supreme Court held that in view of the inconsistencies between two dying declarations, the benefit of doubt should be given to appellant No. 2 while upholding the conviction and the sentence on appellants 1 and 2 for the offence u/s 498A of I.P.C.
In Nallam Veera Stayanandam and Ors. v. Public Prosecutor, High Court of Andhra Pradesh 2005 SCC (Cri) 606 the Supreme Court held as follows:
If the trial Court recorded the second dying declaration as the basis to reject the first dying declaration as incorrect, we are of the opinion that the trial Court has erred because in the case of multiple dying declarations each dying declaration will have to be considered independently on its own merits as to its evidentiary value and one cannot be rejected because of the contents of other. In case where there is more than one dying declaration, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.
In State of Andhra Pradesh v. Shaik Moin : (2004)6SCC34 , the Supreme Court observed that there are more than one dying declaration; first of which is made to PW-5, a neighobour, who accompanied the deceased to the hospital. He stated that the deceased at that time told him that it was the accused who poured kerosene and set her a fire because of the fact that he had an illicit relationship with another woman. But, PW-5 did not tell the police or anybody about the alleged statement made by the deceased. Therefore, it is not safe to rely on the evidence of PW-5. The next dying declaration is the statement made to the police and the said statement is not certified by any doctor and there is material to show that at the time when the statement was made, the relatives of the deceased like her mother and others like PW-5 were present. Therefore, the Apex Court will have to consider the genuineness of the statement in the background of other material on record. The third statement is made to the Judicial First Class Magistrate and it was recorded in the presence of the Doctor, who certified that she was in a fit condition to make a statement and in the said statement she implicated the accused of having caused the injuries to her by pouring kerosene and setting her on fire. In the ordinary course, the statement would have been sufficient to come to a conclusion that it is the accused who had caused the injuries which led to the death of the deceased. The Supreme Court further observed that in the accident register maintained by the hospital when the deceased was admitted in the hospital, she specifically stated that she suffered burn injuries due to an accident while cooking. The prosecution has not brought on record any material to show how the statement came to be recorded in the hospital register. The Supreme Court further observed that the Magistrate who has recorded the statement did not know Urdu language and he claimed only to understand the same. He also stated in his evidence that the victim gave a statement in Urdu language, which he later translated into Telugu as understood by him. The High Court noticed the fact that his efficiency of the language was not such that he could translate the statement of the deceased into Telugu language correctly. In those circumstances, the High Court found that it is not safe to place reliance on Ex.P.2-dying declaration made to the Magistrate as entry made in the accident register or in conflict with regard to the role played by the accused. Therefore, the benefit of doubt should go to the accused.
In the case on hand also similar circumstances arose and there is no consistency in the version of the deceased attributing overt acts to both the accused. In Ex.P.5 she completely exonerated A.1 without attributing any overt act to him, whereas in Exs.P.7 and P.11 statements, she attributed overt acts to both A.1 and A.2. On analyzing the entire evidence and the statements given by the deceased, there is a doubt in our minds whether the deceased narrated the correct version to the Magistrate as well as the police and there is a doubt about the truthfulness of the version given by the deceased. The learned Sessions Judge by observing that as there is consistency in the version given by the deceased in Exs.P.7 and 11, held that the appellants-accused have committed the offence and accordingly convicted and sentenced them. But, in view of the observations made by us in the forgoing paras, we differ with the view expressed by the learned Sessions Judge. In view of the doubt entertained by us as to the genuineness of the dying declarations, we are inclined to give benefit of doubt to the appellants-accused.
In the result, the Criminal Appeal is allowed and the judgment of the lower Court is set aside. The conviction of the appellants-accused 1 & 2 for the offence under Sections 302 r/w 34 I.P.C. and the sentences imposed thereon are set aside. Both the appellants-accused shall be set at liberty, if they are not required in any other crime.