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2002 DIGILAW 1080 (AP)

DHONDA RAMALINGAIAH v. State Of A. P.

2002-09-05

B.S.A.SWAMY, G.YETHIRAJULU

body2002
G. YETHIRAJULU, J. ( 1 ) THE appellant is the accused in Sessions Case no. 308 of 1999 on the file of the Principal sessions Judge, Nalgonda. He was charge- sheeted for the offence punishable under section 302 IPC and sentenced to undergo rigorous imprisonment for life for killing his wife by fire. ( 2 ) THE story of the prosecution is briefly as follows : the deceased Dhonda Muthyalamma was the wife of the accused Ramalingaiah. They were living at Pillalamarri village in nalgonda District. They were blessed with a son and four daughters. The accused used to do business in scrap and the deceased was attending to agricultural labour work. The accused used to frequently beat the deceased in drunken state. On 14. 2. 1998, at about 11. 00 p. m. he came to the house in a drunken state and picked up a quarrel with the deceased and beat her. On seeing the accused beating the deceased, their children came out of the house. The accused poured kerosene on the deceased and set fire on her by lighting a matchstick. The deceased came out of the house with flames and cried. On seeing it, the accused ran away from the scene of offence. Thereafter, the deceased was taken to the Government Hospital at Suryapet during the same night i. e. , in the early hours of 15-2-1998. At about 2. 45 hours the judicial First Class Magistrate, Suryapet recorded the dying declaration of the deceased in the presence of the Doctor. Four days later, the deceased succumbed to be burns. Therefore, a crime was registered and after conclusion of the investigation, the Inspector of Police, Suryapet rural laid the charge-sheet. The Sessions Court framed a charge against the accused under Section 302 IPC for intentionally or knowingly causing the death of the deceased by setting fire to her. The accused denied the offence and claimed for trial. ( 3 ) THE prosecution in order to prove the guilt of the accused examined PWs. 1 to 15 and marked Exs. P1 to P17 and MO1. After conclusion of the prosecution evidence, the accused was examined under section 313 Cr. PC. Except denying the commission of the offence, he did not come forward with any defence. The prosecution witnesses viz. , PWs. 1 to 7 turned hostile and did not support the prosecution case. 1 to 15 and marked Exs. P1 to P17 and MO1. After conclusion of the prosecution evidence, the accused was examined under section 313 Cr. PC. Except denying the commission of the offence, he did not come forward with any defence. The prosecution witnesses viz. , PWs. 1 to 7 turned hostile and did not support the prosecution case. ( 4 ) THE learned Sessions Judge on the basis of the dying declaration covered by ex. P14 given by the deceased at 2. 45 a. m. on 15-2-1998 which was recorded by pw 11, the Judicial First Class Magistrate, suryapet found the accused guilty for the offence under Section 302 IPC and accordingly convicted and sentenced him to undergo rigorous imprisonment for life through his judgment dated 4-1-2000. The accused being aggrieved by the conviction and sentence imposed by the learned sessions Judge preferred this appeal challenging its validity and legality. ( 5 ) THE point for consideration is whether the prosecution proved the guilt of the accused beyond reasonable doubt for the offence under Section 30. 2 IPC? ( 6 ) THE learned Counsel for the appellant attacked the judgment on two grounds. Firstly, that since the Doctor who made the endorsement on Ex. P14 dying declaration did not mention that the deceased was in a fit state of mind to give the said statement, it is not safe to accept the statement of the deceased to base a conviction in the case. Secondly, that since all the witnesses examined by the prosecution who alleged to have seen the occurrence and who are the people residing in the same locality did not speak anything in favour of the prosecution by turning hostile, it is not safe to base the conviction only on the dying declaration. Therefore, he requested that the benefit of doubt may be given to the accused and the conviction and sentence may be set aside. The learned Counsel for the appellant relied on three judgments in this regard. ( 7 ) IN P. Rosamma v. State of A. P. , (1999) 7 SCC 695 , a three Judge Bench of the Supreme Court held that when conviction is solely based on the dying declaration, the court has to consider carefully the dying declaration and the evidence of the witnesses supporting it viz. ( 7 ) IN P. Rosamma v. State of A. P. , (1999) 7 SCC 695 , a three Judge Bench of the Supreme Court held that when conviction is solely based on the dying declaration, the court has to consider carefully the dying declaration and the evidence of the witnesses supporting it viz. , the Magistrate who recorded the statement and the Doctor, who examined the deceased in the hospital. The learned Counsel for the appellant also drew the attention of this Court to para 9 of the said judgment, which is to the effect that in medical science two stages viz. , conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. ( 8 ) IN the case covered by the above decision, the Doctor made an endorsement that the patient (deceased) was conscious at the time of recording the dying declaration but there was no mention that the patient was either coherent or in a fit state of mind. Therefore, the Supreme Court gave the above finding drawing a distinction between the consciousness and fit state of mind. ( 9 ) IN Ukaram v. State of Rajas than, (2001) 5 SCC 254 , the Supreme Court while considering the dying declaration of the deceased held that the Court should be satisfied about its trustworthiness and voluntary nature and fitness of mind of the deceased keeping in view the facts of the case covered by the above said decision. In the said case, the deceased was a mental patient and the Investigating Agency failed to take precautions to ensure as to whether the incident was suicidal or homicidal and in those circumstances, the Supreme Court held that the conviction cannot be solely based on the dying declaration of the deceased. ( 10 ) IN Arvind Singh v. State of Bihar, (2001) SCC (Crl) 1148, the Supreme Court held that the dying declaration ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination. In the case covered by the above decision, the dying declaration has not been made to any doctor or any independent witness, but to the mother who is said to have arrived at the place only in the morning. In the case covered by the above decision, the dying declaration has not been made to any doctor or any independent witness, but to the mother who is said to have arrived at the place only in the morning. The mother admittedly is an interested witness though that itself would not discredit the evidence tendered in Court but the fact remains that the Doctor s evidence considering the nature of burns, creates a considerable doubt as to whether such a statement could be made half an hour before the death. In the peculiar facts covered by the above decision, the supreme Court laid down the above principle by further holding that corroboration is not essential to rely on a dying declaration but it is expedient depending upon the facts and circumstances of the case. ( 11 ) THE decisions referred to above did not impose any bar in accepting the version of the deceased in a dying declaration for basing conviction of the accused. In a very recent judgment of the Constitutional bench of the Supreme Court in Lakshman v. State of Maharastra, 2002 (3) DT (SC) 308, held that a dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice, provided the indication is positive and definite. The person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. The hyper-technical view that the certification of the Doctor was to the effect that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. The Supreme Court also affirmed the law laid down by it in Koli Chunilal Savij and other v. State of Gujarat, 1999 (9) SCC 562 . The latest judgment of the Supreme Court referred to supra made the legal position very clear that the conviction can be based solely on the basis of dying declaration when the contents of such statement are very clear. The latest judgment of the Supreme Court referred to supra made the legal position very clear that the conviction can be based solely on the basis of dying declaration when the contents of such statement are very clear. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man s mind the same feeling as that of a conscientious and virtuous man under oath - nemo moriturus praesumitur mentire i. e. , a man will not meet his Maker with a lie in his mouth. Such statements are admitted, upon consideration that their declarations are made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. It has always to be kept in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination it is essential for the Court to insist that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. ( 12 ) IN the light of the above legal position, we would like to conclude that the conviction can be based solely on the basis of the dying declaration of the deceased in this case also, though all the prosecution witnesses turned hostile. ( 13 ) THE accused was alleged to have set fire to the deceased at about 11. 00 p. m. at Pilialamarri village during the fateful night. ( 13 ) THE accused was alleged to have set fire to the deceased at about 11. 00 p. m. at Pilialamarri village during the fateful night. The deceased was immediately taken to the government Hospital, Suryapet and the investigating Officer was also prompt in securing the Judicial Magistrate of First class, Suryapet to record the dying declaration of the deceased and it was done at 2. 45 a. m. on 15-2-1998. The deceased in ex. P14 dying declaration stated as follows : "on 14-2-1993 my husband Ramalingaiah came in the evening when I was in the house. I was serving meals. My husband bcolded me saying that I am roaming here and there and also neglecting him. My husband said he would hack me with axe. As my husband was beating me, my children ran out. Meanwhile, my husband brought kerosene oil and poured on me and tit with a matchstick when I cried he kept me in room and bolted to restrain others to get in. My entire body was burnt. This incident occurred in the night of 14-2-1998 at about 10. 00 hours. With an intention to kill me, my husband poured kerosene on me and lit with a matchstick. " ( 14 ) THIS statement was recorded by PW11 after putting some preliminary questions to her and after satisfying himself that deceased was in a position to give a statement. The Doctor who was present at the time of recording of the dying declaration also made an endorsement that the patient was conscious and coherent at the time of giving dying declaration. The contents of Ex. P14 are very clear. There is no ambiguity or any confusion in the statement given by the deceased and there is no scope to say that the deceased was not in a fit state of mind or that she was not coherent to give such a statement. The contents of Ex. P14 are very clear. There is no ambiguity or any confusion in the statement given by the deceased and there is no scope to say that the deceased was not in a fit state of mind or that she was not coherent to give such a statement. ( 15 ) THE Judicial First Class Magistrate, Suryapet as PW11 deposed that after disclosing his identity as a Judicial First class Magistrate, Suryapet, he put the preliminary questions to ascertain the state of mind of the deceased and being satisfied with the answers given by the deceased that she was in a fit state of mind to give the statement, recorded her statement and that after recording of the statement, he read over the contents to the deceased and she admitted them to be true and correct. He further deposed that PW10 was also present while he was recording the statement and certified that the deceased was conscious and was in a fit condition to give the statement. ( 16 ) PW10, the Doctor who made an endorsement on Ex. P14 also deposed that he was present while the Magistrate was recording the dying declaration of the deceased and he noticed that the deceased was conscious and was in a fit state of mind to give the statement and he made an endorsement on the reverse of Ex. P14 to that effect. ( 17 ) IN the light of the evidence given by PWs. 10 and 11, it is apparently clear that the deceased was conscious, coherent and was in a fit state of mind and there is no scope to entertain any doubt as to whether the deceased was in a fit state of mind and whether she was able to give Ex. P14 statement. In the light of the above circumstances, we hold that the deceased made Ex. P14 statement voluntarily and in a fit state of mind. She clearly stated that the accused alone was responsible for pouring kerosene and setting fire to her by lighting a matchstick. ( 18 ) IN the light of the above legal position and in view of the evidence of pws. 10 and 11, we have ho hesitation to hold that Ex. P14 dying declaration was true and it was made by the deceased in a fit state of mind. ( 18 ) IN the light of the above legal position and in view of the evidence of pws. 10 and 11, we have ho hesitation to hold that Ex. P14 dying declaration was true and it was made by the deceased in a fit state of mind. We therefore do not find any grounds to interfere with the conviction and sentence imposed by the leaned Sessions Judge and the appeal is devoid of merits. ( 19 ) IN the result, the appeal is dismissed by confirming the conviction and the sentence of rigorous imprisonment of life imposed by the Principal Sessions Judge, nalgonda against the accused under section 302 IPC.