JUDGMENT
K.C. Bhanu, J.
1. Challenging the conviction and sentence in S.C. No. 12 of 2003 on the file of the Court of the II Additional Sessions Judge, Kadapa at Proddatur dated 6-2-2004 wherein the appellant, who is the sole accused, was found guilty under Section 302, IPC and convicted under Section 235(2), Cr.P.C., and was sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for three months, this appeal is preferred.
2. The brief facts that are necessary for disposal of the appeal may be stated as follows:
The case of the prosecution is that the deceased Thippiripati Nette Kattamma was the concubine of the accused. Her marriage was performed ten years back, but she herself separated from her husband and living with the accused. She was an employee in Zuari Cement Factory and she was due a sum of Rs. 50,000/- to her creditors. On 28-3-2002 at about 8.30 p.m. at Railway Kottalu, Yerraguntla the accused came to her house in a drunken condition and asked to give Rs. 30,000/-, which was kept in her box. When she refused, the accused threatened to kill her by pouring kerosene. She refused to give the amount. Then the accused poured kerosene on her and set fire to her and ran away. Her neighbours extinguished the flames and intimated to the police. Police shifted the deceased to Government Hospital where she succumbed to the injuries. Thereby he committed the offence punishable under Section 302, IPC. The Judicial I Class Magistrate took cognizance of the case in Crime No. 26 of 2002 as P.R.C. No. 17 of 2002 and committed the same to the Court of Session. After receipt of Committal record, the same was registered as Sessions Case No. 12 of 2003 and made over to the II Additional Sessions Judge, Kadapa at Proddatur, and after hearing both sides the learned Sessions Judge framed a charge under Section 302, IPC against the accused, which was read over to him in Telugu, for that the accused pleaded not guilty.
3. In support of the case of the prosecution, the prosecution examined PWs-1 to 14 and Exs. P. 1 to P. 14 were marked. None was examined on behalf of the accused.
4. Accepting the two dying declarations recorded, i.e., one by the police and the other by the Magistrate, the learned Sessions Judge found the accused guilty for the offence punishable under Section 302, IPC, convicted him under Section 235(2), Cr.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs. 1000/- in default to undergo simple imprisonment for three months. Aggrieved by the same, the accused preferred the present criminal appeal.
5. The learned senior counsel Sri C. Padmanabha Reddy contended that there is no direct evidence to show that the accused poured kerosene and set fire to the deceased and the entire case rests upon the two dying declarations recorded by PWs-13 and 9 and the reasoning given by the deceased in the abovesaid two dying declarations was that the accused insisted to give Rs. 30,000/-, which was withdrawn by her from the Rayalaseema Grameena Bank, and when she refused to give the same, the incident took place. PW-14 admitted that she does not have any account in any neighbouring banks. When there is no account the question of withdrawing of Rs. 30,000/- from the bank one day prior to the incident does not arise. Therefore, when the two dying declarations brought into existence in the suspicious circumstances, in the absence of any corroborative evidence to those dying declarations, the accused cannot be convicted. Another view is also possible from the evidence adduced by the prosecution that PWs-1 and 2 admitted that the deceased due money to various persons, and the deceased herself committed suicide unable to discharge her debts. The earliest version given by PW-1 to the police would clearly reveal that it is a case where the deceased committed suicide by pouring kerosene on her body. He further contended that the doctor, who issued a certificate that the victim was in a fit state of mind at the time of recording dying declaration, is not examined. So, it is fatal to the case of prosecution. Hence the conviction and sentence may be set aside. In support of his contention the learned Counsel relied upon a judgment of the Supreme Court in Sheikh Meheboob alias Hetak v. State of Maharashtra 2005 (5) SCJ 661 : 2005 Cri LJ 2136.
6. Per contra, the learned Public Prosecutor contended that the two dying declarations are consistent with regard to pouring of kerosene and setting fire to the deceased and there is no other reason for the deceased to implicate the accused falsely leaving the real assailants. The deceased was in a fit state of mind and fully coherent at the time when PWs-9 and 13 recorded two statements from the deceased, and hence there are absolutely no grounds to interfere with the conviction and sentence.
7. PW-14, C.I. of Police at the relevant point of time, conducted inquest on the dead body of the deceased in the presence of panch witnesses. PW-7 is inquest mediator, Ex. P. 14 is inquest report. As per the inquest report, the deceased said to have died due to burn injuries, which were caused by pouring kerosene on the deceased and intentionally set fire.
8. PW-6 is the Doctor, who conducted autopsy on the dead body of the deceased on 30-3-2002, found the following injuries. Varying degrees of burns found over the whole of back of trunk and front of trunk. 3/4th of both upper extremities, whole of neck. Smearing axial both lower limbs excluding perineum and soles of feet. Extent of burns were 85% to 95%. They are anti-mortem in nature. On dissection and opening of abdomen cavity, stomach — pale, and empty; intestines — pale. Spleen — congested. Liver — pale. Bladder and rectum-empty. Uterous — non-gravity. Ribs — normal. Lungs — pale and adherent to chest wall, and congested. Heart — empty. Hyoid bone normal. Skull bones normal. Meningals coverings — pale. Brain — normal.
9. The Doctor, who conducted autopsy gave his opinion stating that the deceased appear to have died of Hypo-volumec and neurogenic shock due to extensive burns. Ex.P. 3 is the post mortem report issued by him.
10. From the above evidence, it is clear that the deceased sustained 85% to 95% burn injuries. Therefore, the homicidal nature of death of the deceased as spoken to by the Medical Officer can be said to have been established.
11. Now it has to be seen that whether it is a case of committing suicide by the deceased or whether the accused poured kerosene on the dead body of the deceased and set fire to her and whether the prosecution established its case beyond all reasonable doubts for the offence under Section 302, IPC.
12. PW-1 is none other than the sister of the deceased. She did not support the case of the prosecution. On the other hand she categorically stated that on the date of incident her sister came from her house with flames. After extinguishing the flames she asked her sister as to how she sustained flames. Then her sister informed her that she attempted suicide unable to discharge debts. She lodged a complaint to the police. As a matter of fact, the deceased also stated in her statement that her sister proceeded to the police station to give a report. Since she did not support the case of the prosecution, she was declared as hostile witness by the prosecution.
13. PW-2 is none other than the mother of the deceased. From her evidence it can be said that it is a case where the deceased herself set fire by pouring kerosene. She also did not support the case of the prosecution.
14. The evidence of PW-4 is not relevant in view of the fact that she came to know that the deceased committed suicide by pouring kerosene. That is only hearsay evidence. On the other hand his evidence would clearly go to show that the deceased was due an amount of Rs. 10,000/- to him.
15. PW-5 is the Police Constable in Yerraguntla Police Station. According to him, PW-1 came to the Police Station and informed that her elder sister set fire to herself. Then he got admitted Kattamma into hospital.
16. PW-7 is one of the inquest mediators. His evidence indicates that he was not present at the time of inquest. The remaining evidence available on record is two dying declarations. One is recorded by PW-13 and the other is recorded by PW-9. On 28-3-2002. PW-13 went to the hospital and recorded the statement of the deceased under Ex. P. 11 between 11.10 p.m. to 1.40 p.m. The relevant portion of the said statement reads as follows:
I am native of Pagidirai of Gooty Mandal, but about 20 years back I came to Yerraguntla with my parents and residing at Railway Kottalu. 10 years back I have got married with Thippalapeti Mallesu and I have no issues. 6 years back we are separated, After that from the date of separation. I am living with one Ajay from the past 6 years, and we are residing at Yerraguntla Railway Kottalu. I used to go to coolee work in Zurai Factory. My husband Ajay is working in Railway Department. Today Ajay was in the house from the morning. The Railway Department asked us to vacate the house for which I intended to purchase new house, as there is no other go. On the morning at 11 a.m., I encashed Rs. 30,000/- from Rayalaseema Grameena Bank and kept in my Trunk Box. Thereafter my husband got outside. On the night in the late hours at about 8.30 p.m. he came to the house and demanded money for which I refused to give money. He told me that he has to pay the amount to clear off the loan, which was lent on Interest. Again I refused for the said re quest. Thereupon he bolted the door and poured kerosene, which is in the window (Gudu) and threatened me to give money, otherwise he will set fire. Then I refused again. He set fire on me throwing match stick, abusing me in vulgar language and ran away, I cried aloud and went to my sister’s house from the backside with burning flames. The people on the road afraid on seeing me and ran away. At that moment someone has poured water on me and put off the flames. My sister on seeing me ran to the Police Station to inform the facts. Thereafter I was sent to Proddatur Hospital. I am revealing the facts before you in the hospital and it was read over to me and admitted to be correct.
17. A perusal of the above statement would clearly show that the deceased encashed an amount of Rs. 30,000/- from Rayalaseema Grameena Bank and kept in her box. Then the accused demanded her to give the money to clear off his debts. When she refused to give the money, the accused bolted the door, poured kerosene and set fire to her. The origin and genesis of the occurrence is when the accused demanded the deceased to give Rs. 30,000/-, she refused, and therefore, the accused poured kerosene on her body. More or less, the said fact has been stated when she was examined by the Magistrate PW-9 on 28-3-2002. The relevant statement given by the deceased before the Magistrate reads as follows:
I have preserved Rs. 30,000/- which was drawn from Bank. Today I have encashed the said amount with an intention to purchase site for erecting kottam. I have kept the cash in trunk box from the past 6 years I am living with Ajay. Today Ajay in a drunken stage asked me have you withdrawn amount from the bank for which I told yes. He asked for the amount. I refused to give money for which he beat me and snatched the keys and he is going out with cash. I have resisted him but he has not stopped. Further I have resisted to go outside, he poured keroserie on me and threatened to kill her, for which I questioned who you can do so? He poured kerosene on me and set fire. I have fell into his feet and requested him not to set fire. Then itself fired the matchstick and I was burnt with flames. I ran towards my sister’s house, the people ran on seeing me some one has poured water with mud pot on me I don’t know who are there that’s all sir. He ran away with cash, my sister and parents with the help of police admitted here.
18. As seen from the above, the Magistrate having satisfied that the deceased is in a fit state of mind to give declaration, recorded her statement. Even according to this statement, the deceased withdrew an amount of Rs. 30,000/- from the Bank with an intention to purchase site. Then the accused asked her to give the said amount. When she refused to give the same, the accused snatched the keys, and was going out with cash. When she resisted, he poured kerosene on her body and set fire. In this statement also she told that after she sustained burn injuries, she ran towards her sister’s house.
19. It is well settled that once the dying declaration is proved to be true, the conviction can be maintained even without corroboration. When a statement given by a person written or verbal to the cause of her death or any of the circumstances resulting in her death, in which case of that person’s death comes into question is admissible under Section 32(1) of the Evidence Act, 1872. The dying declaration cannot be tested by way of cross-examination since the maker is not alive, but at the same time the person who is on the verge of death would not normally implicate the person who has not caused the injuries.
20. There is evidence on record to show that the deceased herself indebted to some others. The immediate reason or cause for the accused to pour kerosene on the body of the deceased is that she refused to give Rs. 30,000/- which was drawn form the Rayalaseema Grameena Bank. That aspect appears to be incorrect in view of the fact that PW-3, who is the Branch Manager working in the Rayalaseema Grameena Bank has categorically stated that the deceased did not have any account at all, and she had not withdrawn amount from the Bank at the relevant point of time. If that were so, the deceased determined to implicate the accused for the reasons best known to her. Therefore, these two dying declarations were brought into existence under suspicious circumstances, since the earliest version as spoken to by PW-1 is that the deceased committed suicide by pouring kerosene on her body and set fire herself unable to bear debts. There is evidence on record to show that the deceased has to pay an amount of Rs. 10,000/- to PW-4. Perhaps that is a reason why PW-1 also informed to PW-5-police constable that her elder sister set fire to herself.
21. The two dying declarations said to have been made by the deceased, appear to have been given by her to implicate the accused for the reasons best known to her. So, in such view of the matter, the two dying declarations should receive corroboration from the material particulars. Except these two dying declarations Exs. P. 7 and P. 11, there are no other circumstances to indicate that it is the accused, who poured kerosene on the body of the deceased, and set fire to her. On the other hand there is evidence on record to show that the deceased herself poured kerosene and set fire herself in order to commit suicide because of debts due to others.
22. In Sheikh Meheboob alias Hetak v. State of Maharashtra’s case 2005 Cri LJ 2136, para 16 the Supreme Court held as under:
We have carefully examined the reasons adduced by the Sessions Court and the High Court for accepting the dying declaration as credible, and for accepting the evidence of Hanumandas (PW-2), and the dying declaration (Ex. 49), as bringing home the charge of murder against the appellants beyond the shadow of resonable doubt. Shadows, there are dark enough to eclipse the truth. Both the courts have ignored a number of reasonable doubts, which legitimately arose on the evidence led by the prosecution, and its conduct in suppressing the vital document and witnesses. We are not satisfied that the evidence led on record by the prosecution proves the guilt of the accused-appellants beyond reasonable doubt.
23. When two views are possible on the evidence adduced by the prosecution, the view, which is favourable to the accused, should be adopted. In this case, the Investigating Officer admitted in his cross-examination that there are only two Banks in Yerraguntal village. One is the Rayalaseema Grameena Bank and the other is State Bank of India. He enquired with the Branch Managers of the concerned Banks. They stated that the deceased neither has any account in their Banks nor withdrew any amount. He also enquired with the Bank Manager of surrounding village, who stated that the deceased has no account in their Bank. The accused is a married person, and living with his wife and children at Railway quarters at Yerraguntal.
24. Since the genesis and origin of the incident is shrouded in mystery, we are unable to place complete reliance on the two dying declarations in Exs. P.7 and P. 11. So, under these circumstances, they are required to be corroborated by other evidence. In the absence of any other corroborative evidence, the accused cannot be convicted. This aspect has not been observed by the learned Sessions Judge, and simply placed reliance on two dying declarations, without there being any reasons whether they are truthful and reliable or not.
25. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant-accused by the II Additional Sessions Judge, Kadapa at Proddatur, in Sessions Case No. 12 of 2003 dated 6-2-2004 is set aside and the appellant-accused, namely, Thippiripati Ijaiah alias Ajay s/o Divadeenam, shall be set at liberty forthwith, if he is not required in any other case.