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2004 DIGILAW 83 (AP)

Nese Sulthan Narayanaswamy v. State Of A. P.

2004-01-28

B.SUBHASHAN REDDY, J.CHELAMESWAR

body2004
B. SESHASAYANA REDDY, J. ( 1 ) THIS Criminal Appeal is directed against the judgment dated 28-12-2001 passed in s. C. No. 378 of 2001 on the file of the court of additional Sessions judge, Hindupur, by which the learned Additional Sessions judge found accused Nese Sulthan narayanaswamy guilty for the offence under section 302 IPC and convicted him accordingly and sentenced him to suffer imprisonment for life. ( 2 ) THE appellant herein is the sole accused in S. C. No. 378 of 2000. He was put on trial before the learned Additional Sessions Judge, hindupur, for the offence under Section 302 i. P. C ( 3 ) THE prosecution case in brief is : p. W. 1 Nese Kamala is daughter and p. W. 2 Nese Muni Raju is son-in-law respectively of the accused. The accused married Nese Susilamma (hereinafter referred to as the deceased) about twenty years prior to the incident. The deceased has a daughter who is no other than P. W. I whose marriage was performed with P. W. 2. On the date of incident P. Ws. l and 2 were in the house of the accused. It is alleged that the accused demanded P. W. 2 to give Rs. 300/- for which P. W. 2 expressed his inability and thereupon an altercation ensued between the deceased and the accused. After p. Ws. land 2 leaving the house, it is alleged that the accused poured kerosene on the deceased and set her on fire and thereby she engulfed in flames. When she raised cries, neighbours came and in the meanwhile p. Ws. l and 2 also reached the house and they shifted her to the Government Hospital, dharmavaram for treatment. P. W. 14 dr. R. Satya Prakasham, Civil Assistant surgeon, medically examined the deceased and sent Ex. P-12 intimation to the Magistrate and Ex. P-19 intimation to the Police P. W. 13 mr. A Pushparai, Head Constable of dharamavaram Police Station, received ex. P-16 hospital intimation. He rushed to the hospital and recorded the statement of the deceased, which is exhibited as Ex. P-17. The duty doctor certified the fit state of mind of the deceased while her statement was being recorded by P. W. 13. Ex. P-18 is the certificate issued by the duty doctor certif ying ex. P-17. Basingonex. P-16 hospital intimation. He rushed to the hospital and recorded the statement of the deceased, which is exhibited as Ex. P-17. The duty doctor certified the fit state of mind of the deceased while her statement was being recorded by P. W. 13. Ex. P-18 is the certificate issued by the duty doctor certif ying ex. P-17. Basingonex. P-17statement,p. W. 13 registered a case in Crime No. 25 of 2000 under section 3071. P. C. and issued Ex. P-19 f. I. R. He examined P. Ws. l , 2 and 4 and recorded their statements. He inspected the scene of offence and prepared scene of offence panchanama in the presence of p. W. ll. S. Parvathaiah and effected seizure of M. Os. l to 4 under the cover of Ex. P-20 observation report. He examined P. Ws. 3,5, 6 and 8 and recorded statements. P. W. 15 s. Naganna, Inspector of Police received death intimation of the deceased and altered section of law from Section 307 to Section 302 i. P. C and issued Ex. P-22 altered F. I. R. He conducted inquest on the dead body of the deceased in the presence of P. Ws. 9 and 10. Ex. P. 24 is the inquest report. After the inquest the dead body was sent for postmortem examination. P. W. 7 T. Murali Krishna conducted postmortem examination on the dead body on 04-3-2000 at 03. 00 p. m. and issued Ex. P-7 report opining that the deceased died of shock due to burn injuries. P. W. 15 arrested the accused on 30-03-2000 at 02:10 a. m. . and sent him for remand. After completion of investigation, he laid charge sheet before the judicial Magistrate of First class, Dharmavaram. ( 4 ) THE learned Magistrate took the charge sheet on file as P. R. C. 37 of 2001 and committed the case to Court of session, as the offence under section 3021. P. C is exclusively triable by the sessions court. ( 5 ) ON committal the learned sessions judge, Anantapur took the case on file as s. C. No. 378 of 2000 and made over the same to the learned Additional sessions judge, hindupur, for disposal according to law. P. C is exclusively triable by the sessions court. ( 5 ) ON committal the learned sessions judge, Anantapur took the case on file as s. C. No. 378 of 2000 and made over the same to the learned Additional sessions judge, hindupur, for disposal according to law. ( 6 ) ON hearing the prosecution and the accused the learned Additional sessions judge framed the charge under section 302 i. P. C. , read over and explained the same to the accused. The accused pleaded not guilty and came to be tried. ( 7 ) TO substantiate the charge levelled against the accused, the prosecution examined P. W. s. l to 14 and marked Exs. P-1 to 24 and M. Os. 1 to 4, The learned Additional sessions judge, on appreciation of the evidence brought on record , found the accused guilty for the offence under section 302 I. P. C and convicted him accordingly and sentenced him to suffer imprisonment for life. Assailing the judgment and conviction and sentences, the accused has filed this Criminal Appeal. ( 8 ) THE learned counsel for the appellant- accused contends that the evidence of P. W. 8 does not show that the deceased was in a fit state of mind when her statements were being recorded by P. W. 13 and P. W. 12. He further submits that except the dying declaration of the deceased, there is no other evidence to show that the appellant- accused was the person responsible for the injuries received by the deceased on the date of the incident and as the dying declarations were not made while she was conscious and coherent, the same can not be based to find the accused guilty for the offence under section 302 I. P. C. ( 9 ) THE learned Public Prosecutor submits that the evidence of P. W. 14 Dr. Satya Prakash is crystal clear that the deceased was in a fit state of mind when her statements were being recorded by P. Ws. 12 and 13. She further submits that the trial Court considered the evidence brought on record in a right perspective, and therefore, the conviction and sentence of the accused under section 302 IPC is not required to be interfered in this appeal. ( 10 ) THE entire case of the prosecution rests on the dying declarations of the deceased recorded by P. Ws. She further submits that the trial Court considered the evidence brought on record in a right perspective, and therefore, the conviction and sentence of the accused under section 302 IPC is not required to be interfered in this appeal. ( 10 ) THE entire case of the prosecution rests on the dying declarations of the deceased recorded by P. Ws. 12 and 13. ( 11 ) IT is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration see Kushal Rao v. State of Bombay, Harban Singh v. State of Punjab gopal Singh v. State of Uttar Pradesh and State ofkarnataka v. Shariff. There is not even a rule of prudence which has been hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is so, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear of convincing, then the Court may for its assurance look for corroboration to the dying declaration. ( 12 ) THE Supreme Court in Kanak Singh raising Rav. v. State of Gujarat held that the law is well settled and if a dying declaration is made voluntarily and truthfully by a person who is physically in a condition to make such a statement, there is no impediment in relying on such a declaration. ( 13 ) P. W. 13 is the Head Constable who received Ex. P-12 hospital intimation, rushed to the hospital and recorded the statement of the deceased. The statement of the deceased formed basis for registering a case in Crime no. 25 of 2000 under Section 302 IPC. The certificate of the duty doctor with regard to the first state of mind of the deceased has been marked as Ex. P-18. No reasons are made out by the accused in the cross-examination of P. W. 13 to doubt the fit state of mind of the deceased when her statement was recorded by him. P. W. 12 is the Magistrate who recorded the dying declaration of the deceased on the intervening night of 2/3- 3/2000. P-18. No reasons are made out by the accused in the cross-examination of P. W. 13 to doubt the fit state of mind of the deceased when her statement was recorded by him. P. W. 12 is the Magistrate who recorded the dying declaration of the deceased on the intervening night of 2/3- 3/2000. P. W. 14 is the duty Doctor, who certified the fit state of mind of the deceased when her statement has been recorded by p. W. 12. Ex. P-15 is the certificate of P. W. 14. It is stated by P. W. 14 that the deceased was conscious and coherent while her statement was being recorded by P. W. 12, Exs. P-14 and p-17 the dying declarations of the deceased clearly establish that the appellant-accused poured kerosene on the deceased and set her on fire and thereby caused burn injuries, for which she succumbed while undergoing treatment in hospital. The prosecution is able to prove the dying declarations of the deceased beyond all reasonable doubt. The trial Court appreciated the evidence brought on record in a right perspective and recorded the conviction of the appellant-accused. We do not see any ground to interfere with the conviction of the appellant-accused under section 302 IPC. ( 14 ) IN the result, the Criminal appeal fails and it is hereby dismissed, confirming the conviction of the appellant-accused for the offence under Section 302 IPC, passed in s. C. No. 378 of 2001 on the file of the Court of additional Sessions Judge, Hindupur, ananthapur District.