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Andhra High Court · body

2002 DIGILAW 1470 (AP)

G. LINGASWAMY v. State Of A. P.

2002-12-16

K.C.BHANU

body2002
K. C. BHANU, J. ( 1 ) THE appeal is directed against the judgment in Sessions Case No. 1/ 1996 on the file of the Sessions Judge, mahabubnagar, dated 30. 1. 1999, convicting the sole accused under Section 304 Part II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/-, and in default, to suffer rigorous imprisonment for two months. Assailing the conviction and sentence, the accused filed the present appeal, questioning the legality and correctness of the judgment. ( 2 ) THE brief facts that are necessary for disposal of the present appeal are that, the accused was the husband of Rajeshwari, that on 24. 3. 1994 the Head Constable (HC. 280) of II Town Police Station, Mahabubnagar received a medical intimation from the headquarters Hospital, Mahabubnagar with regard to the admission of Rajeshwari with burn injuries, that the Head Constable visited the hospital and recorded the statement of rajeshwari wherein she stated that on 24. 3. 1994 at about 8. 00 a. m. , when her husband asked for money she replied that she had no money, the accused asked for pusthe but she refused to give it, then the accused pulled the pusthe Rope , thereafter the accused poured kerosene on her and set fire to her, that basing on the said statement, a case in Crime No. 7/ 1994 under Section 307 I. P. C. was registered, that during the course of investigation, the judicial I Class Magistrate, Mahabubnagar, recorded the statement of Rajeshwari, that on 13. 4. 1994 Rajeshwari succumbed to the burn injuries, and that the police altered the section of law from 307 to 302 I. P. C. and investigated into. ( 3 ) ON behalf of the Prosecution, P. Ws. 1 to 16 were examined and Exs. P1 to p14 were marked. The lower Court, after hearing both sides and considering the evidence on record, came to the conclusion that an offence under Section 304 Part II i. P. C. was made out, and accordingly convicted and sentenced the accused as aforesaid. ( 4 ) NOW the point for determination is whether the judgment of the lower Court is correct, legal and proper? ( 4 ) NOW the point for determination is whether the judgment of the lower Court is correct, legal and proper? ( 5 ) LEARNED Counsel appearing for the accused-appellant contended that there is no evidence except the alleged dying declarations of the deceased said to have been given to the police and the Magistrate, that the dying declarations do not inspire confidence as they are mutually contradictory, that there is no evidence to show that the deceased was in a fit state of mind to give a statement, and that the prosecution miserably failed to prove the guilt of the accused beyond all reasonable doubt for the offence under Section 304 part-II I. P. C. On the other hand, the learned public Prosecutor contended that the statements recorded by the Police and the magistrate would clearly go to show that the accused had thrown the lighting matchstick on the deceased after pouring kerosene and therefore the deceased sustained the burn injuries, that the statements given by the deceased to police and Magistrate are admissible in evidence under Section 32 of the Indian Evidence act, and that once the statements are found to be true and correct, conviction can be maintained without any corroboration. He prays to dismiss the appeal. ( 6 ) P. WS. L to 10 did not support the case of the Prosecution. Except Exs. P10 and P13, there is no other evidence on record to show that the accused is the assailant of the deceased or that he threw the lighting matchstick on the deceased. The original statement given by the deceased and as recorded by the Head constable (HC. 280) in Ex. P10 was not filed into the Court. Therefore, no reliance can be placed on Ex. P10-F. I. R. because it is not proved to be the statement recorded by the Head Constable (HC. 280) from the deceased. ( 7 ) EX. P13 is the statement recorded by P. W. 13. On receipt of Ex. P12-requisition, p. W. 13 went to the hospital and recorded ex. P13. The relevant portion in Ex. P13 reads as follows:"he asked to give Pusthe. I refused to give pusthe. He tried to snatch Pusthe by catching hold of my neck. When I refused to give pusthe he beat me indiscriminately. He stated that he will set fire by pouring kerosene. P13. The relevant portion in Ex. P13 reads as follows:"he asked to give Pusthe. I refused to give pusthe. He tried to snatch Pusthe by catching hold of my neck. When I refused to give pusthe he beat me indiscriminately. He stated that he will set fire by pouring kerosene. He tried to pour kerosene by bringing the kerosene, and poured on me. He gave matchbox to me to set fire. 1 lit (6) matchsticks and put off to see what my husband will say. My husband Lingaswamy lit fire to 7th stick and thrown on me. My body is burnt. When I was crying, my husband brought a pot of water and poured on me. My brother-in-law and my mother brought me to the hospital. " ( 8 ) LEARNED Counsel for the accused- appellant vehemently contended that Ex. P13 is not corroborated by any other evidence and, therefore, no implicit reliance can be placed upon Ex. P13. ( 9 ) DYING declaration is the statement of a person dead. The statements, written or oral, of the relevant facts as to the cause of the death and as to the nature and circumstances of the transactions which resulted in the death in cases in which the cause of death comes into question, are admissible under Section 32 (1) of the evidence Act. It is well-settled law that once a dying declaration is found to be true and trustworthy, then it does not require any corroboration. A conviction can be maintained solely on the basis of an uncorroborated testimony of the dying declaration, provided it inspires confidence of the Court. ( 10 ) AS seen from Ex. P13, it is clear that the accused asked his wife to give money, but she did not give money, that the accused asked his wife to give pusthe for which she refused, that thereafter the accused poured kerosene on her and gave a matchbox to the deceased to set fire to herself, that the deceased lit six matchsticks and put off to see what her husband would say, that the accused lit fire to the 7th stick and threw it on the deceased, and that while the deceased was crying her husband brought a pot of water and poured on her. There is no reason for the deceased to implicate her husband falsely saying that he poured kerosene and set fire to her. There is no reason for the deceased to implicate her husband falsely saying that he poured kerosene and set fire to her. No other persons were present at the time of recording ex. P13-statement by the Magistrate. It is also not the case of the accused that the deceased was tutored to give a false statement. ( 11 ) THE contention raised by the learned Counsel for the appellant is that the dying declaration-Ex. P13 is discrepant with ex. P10-F. I. R. ( 12 ) AS already stated, the person who recorded Ex. P. 10 was not examined. Therefore, Ex. P10 cannot be compared with ex. P13. ( 13 ) THE other contention raised by the learned Counsel is that there was no endorsement on Ex. P13 that the deceased was in a fit state of mind to give the statement and therefore Ex. P13 cannot be relied upon. For that proposition, he relied upon a decision in Paparambaka Rosamma v. State of A. P. , 1999 SOL Case No. 528. ( 14 ) NO doubt, the words, the patient was in a fit statement of mind are not found on Ex. P13, but the Doctor made an endorsement on Ex. P13 that the patient was conscious and answering the questions. This endorsement, coupled with the evidence of p. W. 13, would clearly go to show that the deceased was in a fit state of mind to answer the questions. In this case, as seen from the evidence of P. W. 15, the deceased sustained 60 to 70 per cent of burns. In the case of paparambaka (supra), the deceased sustained 90 per cent burn injuries. Therefore, the decision cited by the learned Counsel for the appellant has no application to the facts of the case. In this case, as seen from the evidence of P. W. 15, the deceased sustained 60 to 70 per cent of burns. In the case of paparambaka (supra), the deceased sustained 90 per cent burn injuries. Therefore, the decision cited by the learned Counsel for the appellant has no application to the facts of the case. ( 15 ) MOREOVER, in a recent decision in Rambai v. State of Chattisgarh, 2002 AIR scw 4085, the Supreme Court in paragraph 6 held as follows:"so far as the position of law in regard to the admissibility of the dying declaration which is not certified by the Doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman v. State of Maharashtra, JT 2002 (6) 313, wherein overruling the judgment of this Court in Laxmi (Smt.) v. Om Prakash and others, 2001 (6) SCC 118 , it is held that a dying declaration which does not contain a certificate of the Doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the Doctor as to the condition of the declarant to make the dying declaration. " ( 16 ) IN view of the above Ruling of the Apex Court, though no endorsement was made by the Doctor on the dying declaration that the patient was in a fit state of mind to give the dying declaration, the dying declaration cannot be rejected inasmuch as the Magistrate gave evidence that the patient was in a fit state of mind while giving the dying declaration. Therefore, the contention of the learned Counsel for the appellant that since there was no endorsement on Ex. P13 that the deceased was in a fit state of mind to give the dying declaration it cannot be relied upon, has no force. This court has no hesitation in holding that Ex. P13 is true and voluntary and there is no reason to disbelieve the contents therein. P13 that the deceased was in a fit state of mind to give the dying declaration it cannot be relied upon, has no force. This court has no hesitation in holding that Ex. P13 is true and voluntary and there is no reason to disbelieve the contents therein. ( 17 ) THE fact that the death of the deceased was due to burn injuries is not in dispute. P. W. 15, who conducted autopsy on the dead body of the deceased, found that the deceased died due to neurogenic shock as a result of extensive burns. The evidence of P. W. 15 and the recitals in Ex. P14 remain unchallenged. ( 18 ) IN view of the above discussion, there are no reasons to deviate from the findings of the lower Court in convicting the accused under Section 304 Part-II I. P. C. ( 19 ) IMMEDIATELY after the incident, the accused poured water on the deceased to extinguish the flames. Perhaps that was the reason why he was not convicted under section 302 I. P. C. The accused was a young man of 25 years of age at the time of the incident. On the spur of the moment, when the deceased refused to give money or pusthe , he poured kerosene on her body and set her on fire. Immediately thereafter he realised his mistake, brought a pot of water, and pbured water on the deceased to put off the fire. Therefore, some lenient view can be taken with regard to the sentence. In the circumstances of the case, the sentence of 10 years rigorous imprisonment as imposed by the lower Court can be reduced to five years. ( 20 ) IN the result, the conviction recorded by the lower Court under Section 304 Part II ipc is confirmed, but the sentence of imprisonment is reduced to five years. With the above modification with regard to the sentence, the appeal is partly allowed.