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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.514 OF 2010
CHIRRA SHIVRAJ .....APPELLANT.
VERSUS
STATE OF ANDHRA PRADESH .....RESPONDENT
JUDGMENT
ANIL R. DAVE, J.
1) Being aggrieved by the Judgment and order dated
3rd July, 2009, passed in Criminal Appeal No.579 of 2004 by
the Andhra Pradesh High Court, confirming the order of
conviction passed by the trial court, this appeal has been
filed by the appellant who has been convicted under the
provisions of Section 304 Part II of the Indian Penal Code
and has been sentenced to undergo simple imprisonment for
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five years. The case of the prosecution in a nut shell is as
under.
2) Chirra Shantha (the deceased) had strained
family relations with her husband’s brother, the appellant.
There was a family dispute with regard to a property
wherein the husband of the deceased and the appellant were
residing and the appellant wanted his brother
Nagabhushanam to leave the property. It is alleged that the
appellant used to regularly abuse the deceased and on 21st
April, 1999, around 1.30 p.m., he had abused the deceased
to such an extent that the deceased was fed up with the
abusive language and so as to get rid of the appellant for
the time being, she had poured kerosene on herself,
believing that the appellant would go away because of her
pouring kerosene on herself but while using abusive
language, the appellant lit his cigarette and threw the
lighted match stick on the deceased. As a result thereof,
the deceased was in flames and the appellant left the place
by further abusing her and telling that she should die.
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3) At the time when the deceased was in flames, her
husband, Nagabhushanam arrived and upon seeing his wife
in flames, he immediately took her to the Government Civil
Hospital, Nizamabad. Upon police being informed, R.
Gangaram, Assistant Sub Inspector (P.W.11) rushed to the
hospital and recorded the statement of the deceased. FIR
No.46 of 1999 was filed on the basis of the statement made
by the deceased against the appellant for commission of an
offence under Section 307 of IPC. Looking to the nature of
burn injuries suffered by the deceased, her dying
declaration was recorded by Mr. Narsimha Chary, First Class
Judicial Magistrate (Special Mobile Court), Nizamabad
(P.W.10) around 8 p.m. The deceased specifically stated in
the said statement that she was being abused by the
appellant and on that day also, as usual, when she was
being abused, she poured kerosene on herself and
thereafter the appellant had thrown a lighted match stick on
her, because of which she was in flames and she was
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severely burnt and her husband Nagabhushanam had
brought her to the hospital.
4) Because of the burn injuries, the deceased
suffered from septicemia and as a result thereof she died on
1st August, 1999. The said fact was brought to the notice of
the authorities by the husband of the deceased. The said
information was recorded as FIR No.152 of 1999 on 2nd
August, 1999. As a result of the death of the deceased, the
appellant was also charged under Section 302 of the IPC. At
the time of the trial, most of the witnesses, who are family
members of the deceased as well as the appellant, turned
hostile. However, on the basis of the dying declaration
(Ext.P.12) recorded on 21st April, 1999, which supported the
contents of the FIR filed by the complainant, the trial court
convicted the appellant for the offence punishable under
Section 304 Part II of the IPC and sentenced the appellant
to undergo simple imprisonment for five years.
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5) Being aggrieved by the order of conviction, the
appellant filed Criminal Appeal No.579 of 2004, before the
High Court of Andhra Pradesh. After hearing the concerned
counsel and upon perusal of the record, the High Court
confirmed the order of conviction passed by the trial court
by the impugned order and the said order of the High Court
has been challenged in this appeal.
6) Mr. A.D.N. Rao, learned counsel appearing for the
appellant mainly submitted that the trial court had
substantially erred in convicting the appellant only on the
basis of the dying declaration. He submitted that except
the dying declaration, there was no other evidence, and to
convict a person solely on the basis of a dying declaration
would be neither just nor legal.
7) He also submitted that the case of the prosecution
was based on the second FIR bearing No.152/99, which was
filed on 2nd August, 1999, upon the death of the deceased
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on 1st August,1999. He submitted that there could not have
been a second FIR. According to him, investigation was
made under the first FIR and ultimately the order of
conviction was passed in pursuance of the second FIR, which
is bad in law. He submitted that if filing of the second FIR
is permitted, the sanctity of the first FIR would be lost and,
therefore, the second FIR ought not to have been filed and
as the order of conviction was passed in pursuance of the
second FIR, the order of conviction is bad and it deserves to
be quashed and set aside.
8) The learned counsel appearing for the appellant
relied upon the Judgment delivered in T.T. Antony etc. v.
State of Kerala and others, 2001(6) SCC 181, to
substantiate his case to the effect that there can not be a
second FIR.
9) On the other hand, the learned counsel appearing
for the prosecution submitted that the order of conviction is
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just and proper and she drew our attention to the fact that
the dying declaration was supporting the complaint, which
had been filed on the same day, and there was nothing to
doubt the dying declaration. According to her, the courts
below had rightly relied upon the said dying declaration for
convicting the appellant. She also submitted that all the
witnesses were family members and, therefore, they did not
support the prosecution case when they were examined.
She also submitted that merely because family members
who were interested in supporting the appellant and had
turned hostile, would not make the case of the prosecution
weak, especially when no infirmity could be found by the
courts below in the dying declaration, which clearly indicated
that the appellant had committed the offence.
10) We have heard the learned counsel and perused
the relevant record.
11) In our opinion, the order passed by the High Court
confirming the order of conviction passed by the trial court
cannot be said to be bad in law. In our opinion, the trial
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court had duly considered the fact that the dying
declaration was trustworthy and reliable and it was
supported by the complaint and as a result thereof, the
order of conviction was also confirmed by the High Court in
the appeal.
12) If dying declaration is trustworthy and if it can be
shown that the person making the statement was not
influenced by any exterior factor and made the statement
which was duly recorded, it can be made basis for
conviction. In the instant case, immediately after the
incident, the deceased was taken to the Government
Hospital, Nizamabad and upon getting information with
regard to the offence, the ASI had rushed to the
Government Hospital, Nizamabad and the deceased had
made her statement before him and thereafter she had
made her dying declaration before a judicial officer around
8 p.m. The said statement was scrupulously recorded by
the Judicial Officer who had found the deceased to be
conscious and fit to make statement. Very recently, this
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Court had examined whether a dying declaration can be the
sole basis for conviction. After examining several judgments
on the subject, this Court had observed in Puran Chand v.
State of Haryana, 2010 (6) SCC 566, as under:
“15. The courts below have to be extremely
careful when they deal with a dying declaration as
the maker thereof is not available for the cross-
examination which poses a great difficulty to the
accused person. A mechanical approach in relying
upon a dying declaration just because it is there is
extremely dangerous. The court has to examine a
dying declaration scrupulously with a microscopic
eye to find out whether the dying declaration is
voluntary, truthful, made in a conscious state of
mind and without being influenced by the relatives
present or by the investigating agency who may
be interested in the success of investigation or
which may be negligent while recording the dying
declaration………
18. The law is now well settled that a dying
declaration which has been found to be voluntary
and truthful and which is free from any doubt can
be the sole basis for convicting the accused. ………
…………….”
13) Looking to the law laid down by this Court as
stated hereinabove and on perusal of the record we find that
in the instant case there was no doubt with regard to the
truthfulness of the dying declaration and, therefore, in our
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opinion, it cannot be said that on the sole basis of dying
declaration the order of conviction could not have been
passed.
14) So far as the submission with regard to the filing
of second FIR is concerned, in our opinion, the said
submission cannot be accepted. First Information Report is
a report which gives first information with regard to any
offence. There cannot be second FIR in respect of the same
offence/event because whenever any further information is
received by the investigating agency, it is always in
furtherance of the First Information Report. Learned counsel
appearing for the accused relied upon the judgment
delivered in the case of T.T. Antony (supra). This Court
had examined the said Judgment in the case of Babubhai v.
State of Gujarat & Others on 26th August, 2010, in
Criminal Appeal No.1599 of 2010 (arising out of SLP(Crl.)
No.2077 of 2010. In the said Judgment, after considering
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T.T. Antony’s (supra) Judgment, this Court observed in
para 13 as under:
13. “…….the investigating agency has to proceed
only on the information about commission of a
cognizable offence which is first entered in the
Police Station diary by the Officer In-charge under
Section 158 of the Code of Criminal Procedure,
1973, (hereinafter called the Cr.P.C.) and all other
subsequent information would be covered by
Section 162 of the Cr.P.C. for the reason that it is
the duty of the Investigating Officer not merely to
investigate the cognizable offence reported in the
FIR but also other connected offences found to
have been committed in the course of the same
transaction or the same occurrence and the
Investigating Officer has to file one or more
reports under Section 173 of the Cr.P.C. Even
after submission of the report under Section
173(2) of the Cr.P.C., if the Investigating Officer
comes across any further information pertaining to
the same incident, he can make further
investigation, ……….”
15) In the case in hand, the first FIR, i.e. FIR
No.46/99 was recorded on 21st April, 1999, the date on
which the offence had taken place. On that day, R.
Gangaram, Assistant Sub Inspector (P.W.11) had recorded
the statement made by the deceased, when she was
admitted to the Government Civil Hospital, Nizamabad and
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on the basis of the said statement the aforesaid FIR was
recorded. At the relevant time, the deceased had received
serious burn injuries and, therefore, offence under the
provisions of Section 307 of the IPC had been registered.
Subsequently, the deceased suffered from septicemia,
which was caused due to the burn injuries and as a result
thereof she expired on 1st August, 1999. The said fact was
reported by the husband of the deceased to the police
authorities and thereupon the said fact was recorded as FIR
No.152/99 on 2nd August, 1999. Thus, by virtue of the
second FIR, further development which had taken place had
been recorded. The said development was with regard to
the death of the deceased and, therefore, an offence under
the provisions of Section 302 of the IPC had been registered.
16) If one looks at the facts of the case and both
information given to the authorities, it is clear that in fact
FIR No.46/99 was recorded on the basis of the statement
made by the deceased when the deceased was alive and
upon her death, which had nexus with the injuries, further
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information was given on 2nd August, 1999, and that was
recorded as FIR No.152/99. In our opinion, it was not
necessary to record another FIR as the death was result of
septicemia which was due to the burn injuries.
17) Looking to the facts of the present case, in our
opinion, in fact the second FIR was nothing but a
consequence of the event which had taken place on 21st
April, 1999. In the circumstances, the contents of the so
called second FIR being FIR No.152/99, could have been
incorporated in the police diary as a result of further
information or event which had been taken place in
pursuance of the first offence, which had been recorded
under FIR No.46/99.
18) It is true that the second FIR being FIR no.152/99,
had been lodged on 2nd August, 1999, when the report with
regard to the death of the deceased was reported. As a
mater of fact, in our opinion, it was not necessary to note
the same as a new FIR but simply because the S.H.O made
a mistake by recording it as a fresh FIR, it would not make
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the case of the prosecution weak especially when no
prejudice had been caused to the appellant or any other
person because of the aforestated further information with
regard to the death being recorded as a new FIR. The
submission made by the learned counsel appearing for the
appellant was to the effect that by adopting such a method,
the prosecution can involve someone wrongly in the offence
and, therefore, such a course should not have been
adopted and as it was adopted by the prosecution, the
appellant must get benefit of such a mistake by getting an
order of acquittal. We do not agree with the aforestated
submission for the reason that there is no allegation to the
effect that the contents of second FIR are incorrect or
malicious or there was any oblique motive behind giving
further information. The information which was given to the
Authorities was only with regard to the death of the
deceased which resulted due to septicemia and septicemia
was only on account of the burn injuries suffered by the
deceased. Be that as it may, it is a fact that there was no
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fresh investigation in pursuance of the second FIR and,
therefore, even the judgment delivered in the case of T.T.
Antony (supra) would render no help to the accused.
19) Even the learned counsel for the appellant could
not show that the information with regard to the death of
the deceased, which was recorded as second FIR no.152/99
caused any prejudice to the accused. In the aforestated
circumstances, we do not agree with the submission made
by the learned counsel for the appellant that merely because
second FIR was filed, the entire investigation was defective
and that should result into acquittal of the accused.
20) We do not find any substance in the submissions
made on behalf of the appellant and, therefore, the appeal
is dismissed.
……………………………..
…..J.
( P. SATHASIVAM)
……………………………..
……J
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(ANIL R. DAVE)
New Delhi
November 26, 2010