JUDGMENT
Iyyapu Panduranga Rao, J.
1. The sole accused in Sessions Case No. 236 of 1989 on the file of the Sessions Judge, Nalgonda is the appellant. He was tried for the offence under Section 302 I.P.C. and was sentenced to suffer imprisonment for life.
2. The gravamen of the charge against him is that on 9-8-1989 at about 3 P.M. at Ambedkar Nagar Colony, Suryapet, the appellant is alleged to have caused the death of one Kancherla Venkatamma (hereinafter referred to as ‘the deceased’) by pouring kerosene on her and setting fire to her.
3. The prosecution case in brief is as follows: The appellant and the material prosecution witnesses are residents of Ambedkar Nagar, Suryapet. The deceased was also a resident of Ambedkar Nagar, Suryapet. The deceased was the second wife of P.W-1. The appellant is a watch repairer. About four or five months prior to the incident, the deceased and P.W-1 went to the hospital of one Dr. Rama Shankar, as P.W-1 was bitter by a mad dog. While they were so proceeding to the hospital of Dr. Rama Shankar, the appellant along with four others were standing in the bazar and the appellant followed the deceased and P.W-1 to the hospital of Dr. Rama Shankar and pressed her thigh with fingers. The deceased informed the same to P.W-1 but P.W-1 took away the deceased to his house without questioning the accused about the same, with a view to avoid any dispute.
4. About one day prior to the offence, while P.W-1 was returning from Singireddypalem carrying a rice bag on his cycle, the appellant who was then present in his house having seen P.W-1 said that “Dadas are coming give way”. When P.W-1 questioned the appellant about the said comment, the appellant held P.W-1 by his collar. P.W-1 got himself extricated from the hands of the appellant and went away. On 9-8-1989 at about 3 P.M. the deceased was in her house along with her son P.W-2. P.W-1 was sitting in the house of one Dasari Mallesh and was chit chatting with him. Having noticed the deceased present in the house, the appellant gained entrance into the house and closed the doors from inside and attempted to have sexual intercourse with her. The deceased resisted the acts of the appellant and raised hue and cry. As the appellant could not succeed, he poured kerosene on the body of the deceased, lit a match stick and ran away. Having witnessed the offence P.W-2 went to the house of Mallesh and informed P.W-1 about the offence. Thereupon P.Ws 1, 3 and Mallesh came to the house of the deceased and put off the fire on the person of the deceased by covering her with a bed sheet, and immediately she was shifted to the Government Hospital, Suryapet.
5. On 9-8-1989 between 4.40 P.M. and 5.00 P.M. the Munsif-Magistrate, Suryapet hating received Ex.P-6 requisition from the Government Civil Hospital, proceeded to the said hospital, recorded Ex.P-7 dying declaration from the deceased after having followed necessary formalities and some time thereafter the deceased died.
6. P.W-8, was then working as S.I. of Police, Suryapet. At about 5-45 P.M. on 9-8-1989 P.W-8 received Ex.P-1 complaint from P.W-1 and registered the same as Cr. No. 152/88 under Section 302 I.P.C. Ex.P-10 is the F.I.R.
7. P.W-9 was then working as Inspector of Police, Suryapet. Having received copy of Ex.P-10 F.I.R, he took up further investigation in the case and proceeded to the Government Civil Hospital, Suryapet and held inquest over the dead body of the deceased between 6 P.M. and 8 P.M. in the presence of P.W-4 and another inquestdars. He also examined P.Ws 1, 2 etc., in the hospital. Later P.W-9 sent the corpse of the deceased for Post-Mortem examination. On 10-8-1989 P.W-9 visited the scene of offence and conducted panchanama in the presence of P.W-5 and another. Ex.P-11 is the rough sketch of the scene of offence prepared by P.W-8. Having found burnt cloth pieces, empty kerosene tin of five litres and a match box, P.W-9 seized the same.
8. P.W-7 is working a Civil Assistant Surgeon, Government Civil Hospital, Suryapet. Having received a requisition from P.W-9 to conduct autopsy over the dead body of the deceased on 10-8-1989 he conducted autopsy and issued Ex.P-9 P.M. Certificate to the effect that the deceased died due to burns and shock. After completion of the investigation P.W-9 laid charge sheet against the appellant.
9. In all, the prosecution examined P.Ws 1 to 9 and marked Exs.P-1 to P-1 1. After the prosecution evidence is closed, the appellant was examined under Section 313 Cr.P.C. Having denied the offence, the appellant asserted that he was present in his shop and thus alleged alibi.
10. To substantiate his contention of alibi the appellant examined D.Ws 1 and 2. Rejecting the plea of alibi raised on behalf of the appellant and mainly relying upon the evidence of P.W-2 and Ex.P-7 dying declaration, the lower court held the appellant guilty of the offence under Section 302 I.P.C. and sentenced him to undergo imprisonment for life. Aggrieved by the same, the appellant has come up with this appeal.
11. P.W-7 who conducted the Post-Mortem examination over the dead body of the deceased from 8 A.M. onwards on 10-8-1989 found the following injuries on the dead body of the deceased.
“1. Entire body except scalp was burnt.
2. Front portion of the scalp few hairs also burnt.”
P.W-7 opined that the burns are anti-mortem in nature. He estimated the percentage of burns at 90% and opined that the deceased died due to burns and shock and accordingly he issued Ex.P-9 post-mortem certificate opining that the deceased died 12 to 24 hours prior to his Post-Mortem examination. Thus the evidence of P.W-7 categorically shows that the deceased died of burn injuries and the resultant shock, in the evening hours on 9-8-1989. Now it is to be seen whether the appellant was responsible for the said burn injuries on the person of the deceased.
12. It is the evidence of P.Ws 1 and 2 that immediately after the offence, P.Ws 1 and 2 along with P.W-3 etc., shifted the deceased to the Government Civil Hospital, Suryapet and immediately thereafter a memo was issued to P.W-6 Munsif-Magistrate, Suryapet to record dying declaration of the deceased. The said memo is marked as Ex. P-6 which shows that P.W-6 received the said memo at 4-30 P.M. on 9-8-1989. P.W-6 reached the Government Hospital, Suryapet at about 4.40 P.M. on the same day and recorded ExP-7 statement between 4.40 and 5.00 P.M. in the presence of Dr. Krishna Kumari. In the said dying declaration the deceased has categorically mentioned that Venkanna a Mutrasi by caste and who is a goonda asked her to yield to his desire and whan she did not agree, he poured kerosene on her and lit a match stick and this happened while she was in the house. Thus Ex .P-7 is very specific to show that Venkanna, Mutrasi by caste and who is a Goonda asked the deceased to have sexual intercourse with him and when she did not agree, he poured kerosene on her and lit a match stick. It is to be seen that Ex.P-7 was recorded by a judicial officer and within about two hours from the time of the offence. If Ex. P-7 is accepted, subject to the identity of the assailant, the entire prosecution story is established.
13. From the material on record there is no difficulty regarding the identity of the accused. Mr. Padmanabha Reddy, the learned counsel for the appellant submits that this is a case of mistaken identity. Elaborating his submission the learned counsel for the appellant submits that Ex. P-7 refers to the assailant as venkadu, there may be many venkadur in the village and the word Venkadu need not necessarily be referred to the appellant. He further submits that the evidence On record shows that the deceased was also referring to P.W-1 as Venkadu and thus shyly suggests that the offence must have been committed by P.W-1 himself. Having carefully examined the entire material, we find no substance in this submission.
14. In Ex.P-1, the deceased referred to P.W-1 as Venkateswarlu and referred to the assailant as Mutrasi Venkadu, who is a Dada. She also gave the descriptive particulars of the assailant – black in complexion, with large stomach and fatty body. She reiterated that the assailant Venkadu belongs to Mutrasi by caste. Admittedly the appellant is a Mutrasi by caste and in the cross-examination it was not elicited that the appellant was. not black in complexion, not having a large stomach and fatty body as mentioned in Ex.P-7. In Ex.P-1 also a clear reference was made to Vadeapalli Venkanna who is a Dada (an anti-social element). As a matter of fact it was not suggested to P.Ws. 1 and 2 that there is another Venkanna in the village. Who is also a mutrasi and with the discriptive particulars given in Ex.P-7. Thus, in view of these circumstances, we are of the clear opinion that the submissions sought to be made by the learned counsel for the appellant that Exs,P-1 and P-7 are vague regarding the identity of assailant and the person referred to in Ex. P-7 and P-1 is not the appellant, is not correct. Thus from the material on record there is no difficulty regarding the identity of the assailant as stated in Exs. P-1 and P-7 and the assailant is no other than the appellant.
15. In Gopal Singh v. State of M.P., it is observed as follows:
“It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful.”
Similarly in K.R. Reddy v. Public Prosecutor, also the same view is stressed that a conviction can be based solely on the testimony of a dying declaration. But it is to be seen that though the dying declaration is admissible under Section 32 of the Evidence Act, but not being a statement on oath so that its truth could be tested by cross-examination, the courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. Under the said circumstances the court must be satisfied that the deceased was in a fit state of mind to make the statement. Referring to this aspect, it is observed at page 1997 of decision No. 2 as follows:
“The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour.”
Relying upon the above extracted observations Mr. Padmanabha Reddy, the learned counsel for the appellant submits that there is no material on record to show that the deceased was in a fit state of mind while making Ex.P-7 statement and consequently Ex.P-7 cannot be looked into. Having carefully examined Ex.P-7, we find no substance in this statement. Question No. 2 and the answer to it reads as follows:
“Q) Are you menially capable of making a declaration?
A) Yes”
P.W-6 who recorded Ex.P-7 statement says that the deceased was in a conscious state of mind and was talking. In the course of his cross-examination P.W-6 asserted that the doctor certified regarding the condition of the deceased and it was only thereafter he recorded the dying declaration. Ex.P-8 is the certificate appended to Ex.P-7 by the Duty Medical Officer at 4.45 p.m. i.e., when P.W-6 started recording the dying declaration. Ex.P-8 certificate reads as follows:
“Certified that patient is coherent consistent and she could be able to state.”
Ex.P-8 certificate shows that the doctor was satisfied about the condition of the state of mind of the deceased. It is that the deceased was in a fit state of mind as otherwise she will not agree for P.W-6 recording the dying declaration. Similarly the above extracted ‘ question in Ex.P-7 also shows that the Magistrate was also similarly satisfied about the condition of the deceased while proceeding further with the recording of Ex. P-7. Thus from a perusal of the evidence of P.W-6 and Exs.P-7 and P-8 we are of the clear opinion that the deceased was in a fit state of mind to make the statement and hence the submission made on behalf of the appellant that Ex.P-7 cannot be looked into as the deceased was not in a fit state of mind to make the statement, is not correct.
16. Coming to the ocult testimony, P.W-2 into to supports the prosecution story. P.W-2 is no other than the son of the deceased. P.W-2 is aged about 6 years and is studying alphabets. Before recording the evidence of P.W-2 certain questions were put to the witness. His evidence was recorded but without administering oath as the Sessions Judge doubted whether the witness knew about the sanctity of the oath. P.W-2 in his evidence categorically says that on the date of offence, P.W-1 was not in the house, P.W-1 was in the house of Mallesh, the accused came to his house, poured kerosene on the deceased and set fire to her with a match box and ran away, the deceased was burning in flames, immediately he rushed to the house of Mallesh and told P.W-1 about the offence, then P.W-1 and others came to his house, the flames were put off by covering the deceased with a bed sheet and immediately the deceased was shifted to the Government Hospital where, subsequently she succumbed to the injuries. Thus P.W-2 narrated the entire prosecution story.
17. Mr. Padmanabha Reddy, the learned counsel for the appellant submits that no credence be given to the evidence of P.W-2 for more than one reason, namely, the evidence of P.W-2 is an unsworn testimony of a child witness and hence the same is not safe to be relied upon. He further submits that in any event the testimony of P.W-2 cannot be relied upon as P.W-2 made the said statement under the influence of the police. It is true that the evidence of P.W-2 shows the follows:
“Police told me as to how I give evidence. Police told me that the accused poured kerosene on my mother and set fire and ran away.
By Court: The police did not see the accused pouring kerosene on my mother and setting fire, but I saw it………………………….. The police after I came to the court talked to me for some time. At the time when my mother was burnt, the police came and said that I had to tell that the accused set fire to my mother……………… The accused Vadapally Venkanna himself brought kerosene and poured on my mother and set fire………….It is not true that I am telling to the dictation of the police……… ……..”
18. Though the evidence of P.W. 2 shows that he was interrogated by the police, he stoutly denied deposing in the court at the instance of the police. Having read the entire evidence of P.W-2, the lower court accepted the same finding that the said evidence was given by P.W-2 on his own accord and not under the influence of the police and having meticulously scanned the entire evidence of P.W-2, we find that the conclusions of the lower court in accepting the evidence of P.W-2 are correct and we are of the clear opinion that P.W-2 has not deposed under the influence of the police. Hence the contention of the learned counsel for the appellant that P.W-2 deposed at the instance of the police is not correct.
19. Sri C. Padmanabha Reddy, the learned counsel for the appellant submits that the evidence of P.W-2 is unsworn testimony of a child witness and the courts repeatedly held that a conviction cannot be based on such a testimony. Before recording the evidence of P.W-2, the learned Sessions Judge put number of questions to P.W-2 to satisfy himself whether the witness understood the solemnity of oath; though the witness answered the questions boldly and without any hesitation, taking into consideration his age the witness was six years old and his educational qualifications, (the witness was only learning alphabets), the learned Sessions Judge thought it fit not to administer oath to the witness. In all the proceedings of the court, be it civil or criminal oath will be administered to the witness compelling him to speak the truth, so that,.the evidence given by the witness will have sanctity enabling the courts to act upon the same. Further in the event of the evidence of the witness being otherwise than truth, appropriate proceedings can be taken against the witness. But in so far as the evidence of a witness to whom oath was not administered, he is not subjected to these tests and consequently while accepting the unsworn testimony of a child witness, the courts have to be very careful in acting upon such testimony.
20. Kenny in his treatise on the Outlines of Criminal Law (1952 Edition, page 420) quotes with approval the following observations of Mr. Inderwick K.C.:
“Children are a most untrustworthy class of witnesses; for, as our common experience teaches us, they often, when of a tender age, mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward and by desire for notoriety”.
21. In Jalwant Lodhin v. The State, (1953) ILR 32 Patna 217 it is observed as follows:
“Children, in the age of about seven, are in a stage of maturation when the higher mental processes are forming. They are then creatures of will, emotion and action and sometimes subjected to hallucinations and illusions. Karl Buhler in his book. The Mental Development of the Child has said at page 85: “The “fibs” childhood are known to every one. A little mite of 3 or 4 will tell us in all seriousness that he has met a bear on his walk, and the like. These things must not be regarded as serious moral lapses, for the child has a vivid imagination and often cannot distinguished memories from events which have been merely imagined”.
22. In Inre Dake Abbayi, (1956) ILR A.P. Page 203 it is observed as follows:
“In England, as Kenny points out in a footnote on page 420 of his book, the unsworn testimony of a child is not held to be adequately corroborated by similar evidence of other children. If we apply that rule of caution to the present case- and we see no reason why we should not-the evidence of any one of P.Ws.1 to 3 cannot be said to have been sufficiently reinforced by that of the other two”.
23. Relying upon the above authorities, Mr. Padmanabha Reddy, the learned counsel for the appellant submits that it is not safe to rely upon the evidence of P.W-2. The Andhra Pradesh decision referred to above shows that unsworn testimony of a child is not held to be adequately corroborated by similar evidence of other children.
The Andhra Pradesh case is a case where there were four child witnesses P.Ws.1 to 4; P.Ws.1 to 3 aged about 7 years and P.W-4 aged about 10 years. But in the case on hand the prosecution relies upon Exs P-1 and P-7 to corroborate the evidence of P.W-2, the child witness. Similarly procecution also relies upon the evidence of P.W.1 to some extent. Though P.W-1, who is no other than the husband of the deceased and father of P.W-2 has not supported the prosecution story to the limited extent of ‘ P.W-2 informing him that the appellant was responsible for the offence, P.W-1 has spoken to the entire other prosecution story namely the motive, P.W-2 informing him that the deceased was burning and about P.W-1 rushing to the scene of offence, putting out the flames and shifting the deceased to the Government Civil Hospital, Suryapet. Ex.P-7 dying declaration and Ex.P-1 amply corroborates the evidence of P.W-2 on every material particular. Thus it is not as though the prosecution solely rests upon the unsworn testimony of a child witness i.e., P.W-2. Under these circumstances the observations made in the Andhra Pradesh decision, one child witness cannot corroborate another child witness has no application to the case on hand. Thus the evidence of P.W-2 which stood the test of searching cross-examination is fully corroborated by Ex.P-7 and Ex. P-1. Further, except to the extent that P.W-2 informed P.W-1 that the accused was responsible for the offence, the other particulars of the prosecution story namely, the motive portion, P.W-1 ‘s presence with Mallesh at the time of offence, P.W-2 rushing to the said place and informing P.W-2 about the offence, then P.W-1 etc., shifting the deceased to the Government Hospital, Suryapet after putting out the flames are amply corroborated by the evidence of P.W-1. Thus it is not a case where the entire prosecution rests on the unsworn testimony of a child witness namely P.W-2 but the same is corroborated on all material particulars from the contents of Ex.P-7, P-1 and the evidence of P.W-1.
24. On behalf of the appellant it is submitted that it is a case of suicide and this submission is based on certain suggestions made to P.W-2 in the course of his cross-examination . It is suggested to P.W-2 that there were quarrels between the deceased and P.W-1, P.W-1 now and then comes home in a drunken condition, pick up quarrels with the deceased and beat her, the deceased used to abuse P.W-1 as chakalodu and Venkadu. It was further suggested that in view of the said quarrels the deceased might have committed suicide. P.W-2 flatly denied the same and no credence be given to this suggestion in view of the evidence of P.W-2 coupled with the dying declaration Ex. P-7 and Ex.P-1.
25. Reliance is sought to be placed on the evidence of D.Ws.1 and 2 to show that the appellant was a watch repairer and on the date of offence from 7 a.m. to 9 p.m. he was at his shop along with D.W-1. D.W-1 in his evidence says that himself and appellant were attending to the watch repairing business jointly and on the date of offence from 7 a.m. to 9 p.m. the appellant was at his shop and did not move out. D.W-2 in his evidence says that he is working as a clerk in Veeresham Medical Stores, Suryapet. The said shop is located opposite to the watch mechanic shop of the appellant and D.W-1 and he asserts that on 9-8-1989 from 9 a.m. to 9 p.m. the appellant was at the watch repairing shop. No material is placed on record to show that either D.W.1 and appellant were jointly carrying on watch repairing business or D.W.2 is working as a clerk in Veeresham Medical Stores. One S. Sathyanarayana is said to be the owner of the said medical shop and he is not examined. Except the ipsi dint of D.W-2 there is no other reliable evidence in support of their evidence. Having regard to the evidence of D.Ws.1 and 2 and having had an opportunity of witnessing the demeanour of these witnesses, the lower court has not chosen to rely upon the evidence of these witnesses and for the same reason, we find no reason to come to a different conclusion regarding the acceptability of the evidence of D.Ws. 1 and 2. Thus we are not inclined to accept the evidence of D.Ws. 1 and 2.
26. The lower court having accepted the evidence of P.W-2 and the evidence of P.W-1 to the major extent and relying upon the exhibits Exs. P-1 and P-7 held that the appellant has committed the offence. Having carefully scrutinised the entire evidence on record we find that the conclusions arrived at by the trial court are based on material which is unimpeachable and trustworthy.
27. Before parting with the case, we wish to add that since it is a well settled law that a court is entitled to convict on the basis of a dying declaration, all precautions be taken to see that the said dying declaration is recorded being fully satisfied that the declarant was in a fit state of mind while making the statement. The Magistrate should not record dying declaration unless he is fully satisfied about the same and before recording the dying declaration the Magistrate should state therein that he was fully satisfied that the declarant was in a fit condition to make a statement. The Magistrate, while recording the dying declaration, to the possible extent, should insist upon the presence of the medical officer while recording the same and obtain an endorsement from the said medical officer that the declarant was in a fit condition to make a statement and not the usual statement that the declarant was conscious.
28. The Registrar (Administration) should place this para before the Hon’ble the Chief Justice for communication to all the Magistrates for strict compliance.
29. As could be seen in this case, the Medical Officer Krishna Kumari who gave Ex. P-8 certificate on Ex.P-7 dying declaration is not examined. It is necessary that the prosecution should insist upon examining the doctor who gave the certificate regarding the state of mind of the declarant while making the dying declaration. In the event of the non-availability of the doctor due to death or in a case where the whereabouts of the said doctor are not available, secondary evidence be adduced by the prosecution in proof of the said endorsement.
30. The Director of Medical Services, Government of Andhra Pradesh should issue instructions to all the medical officers in the State that they should in variably be present whenever the Magistrates are recording dying declarations and append a certificate thereon to the effect that the declarant, while making the statement, was in a fit condition to make the same after being fully satisfied about the same. The Registrar (Administration) should communicate the same to the Director of Medical Services, Government of Andhra Pradesh.
31. Under these circumstances, finding no merits, the appeal is dismissed confirming the conviction and sentence of the appellant under Section 302 IPC.