JUDGMENT
G. Yethirajulu, J.
1. This appeal is preferred by three accused in Sessions Case No. 387 of 1996 on the file of the I Additional Sessions Judge, Nalgonda. All the three accused were convicted for killing the deceased Smt. Boina Sasirekha by fire under Section 302 read with Section 34, I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each, in default to suffer R.I. for one year. They were also convicted under Section 498-A, I.P.C, for harassing the deceased for not begetting children, and sentenced to undergo R.I. for one year and to pay a fine of Rs. 500/- each, in default to suffer S.I. for three years.
2. The case of the prosecution is briefly as follows :
A1 is the husband, A2 and A3 are the parents-in-law of the deceased woman Sasirekha. The marriage of deceased took place with A 1 about ten years prior to her death. They lived happily for about seven years. Thereafter, the accused started harassing her physically and mentally on the ground that she did not beget children. They necked her out about 11/2 years prior to her death. When the parents of the deceased got her examined by a doctor for the cause of her not begetting children, the doctor advised them to bring A 1 also for treatment. The parents of the deceased requested A 1 to go for medical check up but he refused. Latter the deceased being convinced by her parents went to the house of the accused, but they sent her away about six months prior to the incident demanding to bring Rs. 10,000/- for not begetting children. The parents of the deceased gave Rs. 2,000/- in cash and other household articles. The accused being not satisfied with cash and household articles resorted to commit the offence against the deceased at their house. On 2.4.1996 at about 11 p.m. the accused picked up quarrel with the deceased and alleged that she had hidden silver anklets. They proclaimed that they would kill her and perform another marriage to A 1. Accordingly, during the fateful night A2 poured kerosene on the deceased, A1 lit fire to her saree, which resulted in severe burns. The accused sent information to the parents of the deceased stating that the deceased suffered burns in an accidental fire. The parents of the deceased and others came to the house of the accused and shifted the deceased to the Government Hospital, where she succumbed to injuries on the next morning while undergoing treatment. The accused were charge -sheeted.
3. The prosecution in order to prove the guilt of the accused examined P.Ws. 1 to 15 and marked Exs. P1 to P21 and M.Os. 1 to 3.
4. After closure of the prosecution, the accused were examined under Section 313, Cr.P.C. and they denied the commission of the offences.
5. The learned Additional Sessions Judge after considering the evidence placed by the prosecution found Al to A3 guilty under Section 498-A, I.P.C., A1 and A2 for the offence under Section 302, I.P.C. and A3 under Section 302 r/w 34, I.P.C. and accordingly convicted all the accused and imposed the sentences as mentioned above through his judgment dated 21.3.2000.
6. All the three accused being aggrieved by the convictions and sentences imposed by the learned Additional Sessions Judge, Nalgonda, preferred this appeal challenging their validity and legality.
7. The point for consideration is whether the convictions and sentences imposed by the Additional Sessions Judge, Nalgonda against all the accused are not sustainable and whether they are liable to be set aside.
POINT :
8. The deceased was alleged to be killed by her husband and parents-in-law. The parents of the deceased, who were examined as P.Ws. 1 and 2 turned hostile and did not support the case of the prosecution. P.Ws. 3 to 7, who examined to speak about the relationship between the accused and the deceased, the harassment made by the accused to the deceased, the cause of death etc., also turned hostile and did not support the prosecution case.
9. The prosecution relied on Ex. P20-dying declaration of the deceased recorded by P. W. 14-Judicial Magistrate of First Class, Suryapet at the Government Hospital, Suryapet. On a perusal of Ex. P20, which was recorded by the learned Magistrate at 7.30 a.m. on 3.4.1996 i.e., on the next day of the date of offence, it is seen that P.W. 14 after disclosing his identity put some questions to the deceased and elicited answers from her. P.W. 14, after satisfying that the deceased was coherent and was in a fit state of mind, further elicited about her receiving burns all over the body and the deceased stated to him as follows :
“There was a quarrel between me, my husband, mother-in-law and father-in-law. They quarreled with me on the ground that I did not beget children. Therefore, my mother-in-law poured kerosene on me and my husband lit a matchstick and set fire to my saree. At that time my father-in-law was also present, but he did not prevent the incident. On the pretext of my not begetting children, my husband, mother-in-law and father-in-law resorted to it with a view to kill me.”
It is further seen from Ex. P20 that P.W. 14 read over the contents of the statement to the deceased and she admitted them to be correct. The doctor who was present at the time of recording Ex. P20-statement of the deceased made an endorsement on it that the patient was conscious and was in a fit condition to give statement.
10. Mr. C. Padmanabha Reddy, the learned Counsel appearing on behalf of the appellants, submitted that since the deceased did not give the surname of her husband Mallaiah apart from not giving the names of her parents-in-law in Ex. P20-dying declaration, there is every doubt about the identity of the persons who were responsible for the death of the deceased. Therefore, the benefit of doubt has to be given to the accused and they have to be acquitted. The learned Counsel also submitted that A3 has to be acquitted for the offences on the ground that the deceased has not attributed any role to A3 for the commission of the offence or prior harassment.
11. In order to test whether the evidence placed by the prosecution is sufficient to prove that the accused were responsible for the commission of offence, we wish to refer to the evidence available on record.
12. The case of the prosecution is that the deceased Boina Sasirekha was the wife of Boina Mallaiah. The accused did not dispute their relationship inter-se. But they contend that Mallaiah who lit the fire to the saree of the deceased is not her husband Boina Mallaiah, but some other Mallaiah whose identity the prosecution failed to establish. Hence the conviction and sentence given by the learned Sessions Judge has to be set aside.
13. Though P.W. 1, the mother of the deceased, turned hostile, some information given by her in the chief-examination is useful to the prosecution to prove the relationship of the accused with the deceased. In the chief-examination P.W. 1 stated that Al is her son-in-law, who married her daughter Sasirekha about 11 years prior to her death, that A2 and A3 are the parents of Al and that one Bakkaiah, the brother of A3 informed them that the deceased received burn injuries. In the cross-examination by the Additional Public Prosecutor the witness volunteered that Al is not her son-in-law and she does not know A2 and A3. This witness did not spell out on what basis she identified the accused as the husband and parents-in-law of the deceased as stated by her in the chief-examination about the relationship with the deceased. She also did not say as to what made her to change her version about the relationship of the accused with the deceased and what factors prompted her to volunteer about her relationship with the accused.
14. P.W. 2, the father of the deceased also deposed that he performed the marriage of the deceased with Boina Mallaiah, that the parents of Al were Lachamma and Lingaiah. Though this witness also turned hostile, the information given by him in the chief-examination is very much important to prove the relationship of the deceased with the accused. In order to know to what extent the prosecution can rely on the evidence of hostile witness, I wish to refer to the following decisions.
15. In Bhagwan Singh v. State of Haryana, , the Supreme Court held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him, as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal Bar to base the conviction upon the testimony of such witness.
16. In Rabindra Kumar Dey v. State of Orissa, , the Supreme Court observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon part of the testimony of such witness if that part of the deposition is found to be creditworthy.
17. At the time of framing of charges by the learned Sessions Judge on 19.12.1997 the accused did not deny their relationship with the deceased, except denying the commission of the offence. At para 10 of the inquest report covered by Ex. P8 and proved by P.W. 8 the deceased was described as Boyena Sasirekha w/o Mallaiah, a resident of Tungaturthi. During the inquest the names of the accused have been fully described mentioning their relationship with the deceased, but nothing was elicited from any of the witnesses during the course of trial that the accused are not related to the deceased. P.W. 14, the Judicial Magistrate of First Class, who recorded the dying declaration of the deceased Sasirekha, also proved Ex. P20 regarding the correctness of its contents and the mental condition of the deceased. The above material placed by the prosecution amply establishes that Al was the husband, A2 and A3 were the parents-in-law of the deceased Sasirekha and there is no doubt about the relationship with the deceased as alleged by the learned Counsel for the appellants.
18. These are the days of the witnesses, including the kith and kin of the deceased, turning hostile on account of various considerations and it is becoming very difficult for the prosecution to prove the guilt of the persons responsible for committing heinous crimes. Therefore, the concept of strict proof beyond reasonable doubt has been given a different look.
19. Secondly, it is well established that a conviction can be based solely on the dying declaration of the deceased. Conviction of accused can be based on the dying declaration of the deceased, provided, there is sufficient evidence to show that the deceased gave the said statement in a fit state of mind. The endorsement made by the doctor on Ex. P20 dying declaration and the evidence given by P.W. 14 regarding the mental condition of the deceased at the time of recording Ex. P20 amply establish that the deceased was in a fit state of mind to make a statement. Therefore, there cannot be any doubt about the truthfulness of Ex. P20 dying declaration given by the deceased.
20. The law on dying declarations is well settled by now. Under Clause (1) of Section 32 of the Indian Evidence Act, 1872 statement made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of his or her death comes into question is a relevant fact and is admissible in evidence. When the statement of dying person is found reliable, it becomes a valuable piece of evidence and on the satisfaction of the Court that the dying declaration is true, conviction can be given even without looking for any corroboration.
21. In Khushal Rao v. State of Bombay, , the Supreme Court held :
“…In our opinion there is no absolute rule of law or even a rule of prudence, which has ripened into a rule of law that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of a conviction.”
22. In State of Assam v. Mafijuddin Ahmed, AIR 1983 SC 274, the Supreme Court held as under:
“Thus, the law is well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have corroboration, provided that the Court is satisfied that the dying declaration is a truthful one and not vitiated in any other manner.
23. In Gurubachan Singh v. State of Haryana, 1996 Crl. LJ 3051 (P&H), a Division Bench of the Punjab and Haryana High Court while dealing with a case of dowry death with similar facts held that the non-examination of doctor on the crucial question of fitness of the declarant is not fatal to the case of prosecution. In the case covered by the above decision, the deceased in the statement recorded by the Magistrate stated that her husband and mother-in-law put her on fire by sprinkling kerosene. The Punjab and Haryana High Court in the said case confirmed the conviction and sentence imposed on the accused by holding that the Sessions Judge was right in basing the conviction on the basis of the version given by the deceased in the dying declaration.
24. Since the Judicial Magistrate has recorded the dying declaration from the deceased Sasirekha, when she was in a fit state of mind at the earliest time, there cannot be any doubt about the truthfulness of the contents.
25. The learned Counsel for the appellants raised another point that since the residence of the deceased was described as Velugupalli Annaram and as the accused belonged to Tungaturthi village, there cannot be any conclusion that the deceased was related to the accused. P.Ws. 1 and 2 belong to Velugupalli Annaram village. Therefore, the name of their village might have been mentioned. We do not find any force in the argument of the learned Counsel for the appellants for the simple reason that they did not raise any of these issues at any time during the trial. Further in Ex. P19-FIR, as against the direction and distance, it is mentioned as East three furlongs from Police Station and as against the column address, it is mentioned as Velugupalli (V), Thungathurthi. This information is FIR gives an impression that Velugupalli is hamlet of Thungathurthi. Therefore, it can be safely concluded that the relationship of accused with the deceased is well established.
26. Regarding the offence proper, it is the specific version of the deceased that the accused used to harass and beat her on the ground that she did not beget children. With regard to the participation of A3 in the commission of the offence, she mentioned in Ex. P20 that Al poured kerosene and A2 set fire to her, but she did not attribute any overt acts to A3. There is no evidence to prove that A3 shared common intention either in causing harassment or in causing burns to the deceased leading to her death. There is no other incriminating material to show whether there was any active involvement of A3 in the commission of these offences or common intention to do so. The learned Sessions Judge without verifying whether there is any evidence attributing common intention to A3 found him guilty for the offence under Section 302 read with Section 34, I.P.C and also for the offence under Section 498-A, I.P.C. The non-participation of A3 in the commission of offence and his passive attitude during the commission of the offence was an indication that he was not hand in glove with Al and A2 to put an end to the life of the deceased. Unless there is sufficient evidence from the prosecution that there was common intention for A3 to kill the deceased, we are inclined to give the benefit of doubt to A3 and accordingly the 3rd appellant, who is A3 in the case, is found not guilty for the offences under Section 498-A and Section 302 read with Section 34, I.P.C. and he is acquitted.
27. So far as Al and A2 are concerned, Ex. P20 dying declaration of the deceased clearly indicates that there was active participation of Al and A2 in not only the commission of offence, but also harassment, prior to her death. In the light of the above circumstances, we are of the view that the learned Sessions Judge was right in finding Al and A2 guilty for both the offences and there are no grounds to interfere with the convictions and the sentences given by the learned Sessions Judge against Al and A2.
28. In the result, the appeal is allowed in part. The convictions and the sentences imposed on A1 and A2 for the offences under Sections 302 and 498-A, I.P.C. are confirmed. The conviction and the sentence imposed by the Additional Sessions Judge, Nalgonda against A3 are set aside. A3 shall be set at liberty immediately.