Sundarapalli Satyanarayana @ Sattibabu v. State of Andhra Pradesh
2011-01-28
K.G.SHANKAR, V.ESWARAIAH
body2011
DigiLaw.ai
Judgment K.G. SHANKAR, J :--Circumstantial evidence and duality of dying declarations and their evidentiary value are under consideration in this appeal. It is a case of uxoricide. As usual in the case of a family rift and consequent criminal action on the part of the spouse, the alleged killing of the deceased-wife by the accused-husband took place inside the house. There were, therefore, no eye-witnesses for the incident proper. 2. The deceased-wife, who was admitted in the hospital, made a statement to a Police Head Constable (PW13) and later to a Judicial Magistrate of First Class (PW4). The prosecution in all examined 16 witnesses out of the 27 witnesses cited by it. Ex.P1 is the statement recorded by PW 13 from the deceased. EX.P4 is the dying declaration recorded by PW4. On the basis of Exs.P1 to P4 and the evidence of the witnesses, the learned V Additional Sessions Judge, East Godavari at Rajahmundry found the accused guilty for the solitary charge under Section 302 of the Indian Penal Code (for short 'IPC'). He was sentenced to imprisonment for life and also fine of Rs.1,000/-, in default of payment of which, to undergo simple imprisonment for a period of three months. Aggrieved by the same, the present appeal is preferred. 3. Although the accused was defended before the trial Court, the accused pleaded his inability to engage a Counsel before this Court. Smt. N. Ammaji was appointed as legal aid Counsel to represent the accused. 4. The case of the prosecution brief is: (i) The deceased was the wife of the accused. Their marriage was solemnized about six years prior to the death of the deceased. The deceased gave birth to a female child during their wedlock. (ii) The accused was addicted to vices and more particularly the accused was an alcoholic. Although he was a labourer by profession, he was lazy and was not attending to labour work. He used to contract debts to raise money to satisfy his vices. The accused and the deceased often used to quarrel on that count. (iii) The accused stayed with the deceased only for about four months after the marriage. He later went away to the house of his parents leaving the deceased at the house of her parents. A compromise was thereafter. reached at the behest of the relatives of the accused and the deceased.
(iii) The accused stayed with the deceased only for about four months after the marriage. He later went away to the house of his parents leaving the deceased at the house of her parents. A compromise was thereafter. reached at the behest of the relatives of the accused and the deceased. Late Vanapalli Badram was the chief mediator at that time. The accused consequently joined the deceased at D. Kesavaram, which was the place of residence of the deceased. The accused, however, did not mend his ways and continued with his wavering behaviour. (iv) On 6.10.2004, when the accused returned to the matrimonial house at about 7.30 p.m. in a drunken state, the deceased questioned the conduct of the accused and found fault with him for not going to labour work. The accused bore grudge and decided to kill the deceased-wife. He consequently poured kerosene found in the house upon the deceased and set her ablaze. He later went outside the matrimonial home, bolted the door from outside and took to heels. On hearing the painful cries of the deceased, neighbours rushed to the house of the accused and the deceased, opened the doors of the house, rescued the deceased from flames and shifted her to Government Headquarters Hospital, Rajahmundry by about 11.10 p.m. (v) The Duty Head Constable at the Government Headquarters Hospital, Rajahmundry recorded the statement of the deceased (Ex.P1 ). The Sub-Inspector of Police (PW14) registered the same as First Information Report (FIR) under Section 307 IPC (under Ex.P13). When the accused subsequently died, altered FIR (Ex.P15) was issued under Section 302 IPC. 5. On the basis of the allegations of the prosecution, a solitary charge under Section 302• IPC was framed against the accused. The prosecution examined 16 witnesses. Exs.P1 to P20 and MOs.1 to 4 were marked. The defence neither examined any evidence nor did it mark any exhibits on its side. 6. The evidence of the prosecution is: PW1 is the father of the deceased. PW2 is the mother of the deceased. The deceased was the second daughter of PWs.1 and 2, out of three daughters and a son they begot. The accused and the deceased lived more or less hapP1ly for a period of one year after their marriage. The name of the third daughter is Nikitha. (i) The accused was addicted to alcohol. He used to spend all his earnings on alcohol.
The accused and the deceased lived more or less hapP1ly for a period of one year after their marriage. The name of the third daughter is Nikitha. (i) The accused was addicted to alcohol. He used to spend all his earnings on alcohol. When the deceased protested for the conduct of the accused in spending away the money on alcohol, quarrels ensured between the accused and the deceased. Deserting the deceased, the accused went away to the house of his parents at Vamy, Nizamabad District. (ii) However, a compromise was reached between the deceased and the accused on the intervention of Vanapalli Badram (LW15) and the accused and the deceased again joined and started living in the house of PW3 as tenants. (iii) As the accused did not stop the vice of consuming alcohol, the deceased used to quarrel with the accused about the conduct of the accused. On the ill-fated day on 6.10.2004, while the accused and the deceased quarrel with each other, the accused poured kerosene over the deceased at about 7 p.m. and set fire to the deceased. The accused later went outside the house, bolted the door from outside and went away. (iv) When the deceased raised alarm, PW 10, who is the mother of PW1, PW5, who is the neighbour of the deceased as well as PWs.6 and 7, who are also the neighbours of the deceased and the accused, who heard the alarm of the deceased, rescued the deceased by putting off the flames and admitted her in the hospital. (v) PW 13, who was the Duty Head Constable at the Police Outpost at the Government Headquarters Hospital, Rajahmundry received hospital intimation under Ex.P 12 and later recorded statement of the deceased under Ex.P1. PW4, then II Additional Junior Civil Judge, Rajahmundry, recorded the dying declaration of the deceased from 12.05 a.m. till 12.45 a.m. on 6/7.10.2004 under EX.P4 on receipt of hospital intimation under Ex.P3. The statement of the deceased recorded by PW13 under EX.P1 was registered as FIR under Ex.P13. The deceased unfortunately breathed her last on 7.10.2004 itself. On receipt of the death intimation of the deceased through Ex.P14 that the deceased died at about 11 a.m. on 7.10.2004, PW 14, Sub-Inspector of Police, Ganavaram Police Station, issued EX.P15 altered FIR.
The statement of the deceased recorded by PW13 under EX.P1 was registered as FIR under Ex.P13. The deceased unfortunately breathed her last on 7.10.2004 itself. On receipt of the death intimation of the deceased through Ex.P14 that the deceased died at about 11 a.m. on 7.10.2004, PW 14, Sub-Inspector of Police, Ganavaram Police Station, issued EX.P15 altered FIR. (vi) It would appear that the accused was at large and was not arrested by the police immediately or even by the date of laying of the charge-sheet. The accused subsequently was remanded to judicial custody. It is not clear from the record whether the accused surrendered himself or was arrested. In any event, from the date of the impugned judgment, the accused has been in jail. 7. On the set of the above facts, the learned trial Judge found the accused guilty. The accused assails the same inter alia contending that the prosecution failed to establish the guilt of the accused much less beyond reasonable doubt. 8. PWs.1 and 2 are the parents of the deceased. PW5 is the brother of PWI and is the maternal uncle of the deceased. PW10 is the maternal grandmother of the deceased. PW3 is the landlady in whose house the deceased and the accused were residing by the date of the death of the deceased. PWs.6 and 7 are immediate neighbours of the deceased. However, the houses of PWs.1 and 2, 5 to 7 and 10 to 12 are near the house of the accused and the deceased. Thus, PWs.1 to 3, 5 to 7 and 10 to 12 are the neighbours of the deceased and the accused out of whom PW3 is the very landlady of the deceased. It may be noticed that barring for PW3, none of them have been residing in the house of the accused and the deceased. PWs.1, 2, 5 to 7, 10 and 11 speak about the quarrels between the accused and the deceased. PW3, who is the landlady of the house under the occupation of the accused and the deceased, however, claimed that the accused and the deceased never quarreled with each other. 9. The learned Counsel for the accused inter alia contended that the very misunderstandings with the intensity of quarrels between the accused and the deceased have not been made out in view of the evidence of PW3.
9. The learned Counsel for the accused inter alia contended that the very misunderstandings with the intensity of quarrels between the accused and the deceased have not been made out in view of the evidence of PW3. It may be noticed that PW3 is also not a resident of the house under the occupation of the accused and the deceased. She more or less was as much a neighbour of the accused and the deceased as PWs.1, 2, 5 to 7, 10 and 11 are. In view of overwhelming evidence from these witnesses, there is no difficulty to accept the stand of the prosecution that there were quarrels between the accused and the deceased. There is no ostensible reason for these witnesses to speak against the accused. There is no motive for them to foist a case against the accused. Barring• for PWs.1, 2, 5 and 10, rest of the witnesses are not even relatives of the accused and the deceased. Therefore, their evidence cannot be suspected as the evidence of partisan witnesses. We agree with the contention of the learned Public Prosecutor that the evidence of witnesses regarding the quarrels between the accused and the deceased cannot be suspected. 10. For that matter, the evidence of these witnesses cannot be doubted on any count. However, the fundamental question is whether the evidence of these witnesses establishes the guilt of the accused for the offence under Section 302 IPC. It may be recalled that none of the witnesses was an eye-witness for the incident proper. No one saw the accused pouring kerosene upon the deceased and setting her ablaze. From the fact that the deceased raised alarm when she was in flames and on the basis of the statement of the deceased under Exs. P1 and P.4, the witnesses assumed that the accused set fire to the deceased. There is no place for assumptions and preponderance of evidence in criminal jurisprudence. The prosecution in the inquisitional system shall prove the guilt of the accused beyond reasonable doubt, failing which it shall be presumed that the accused is not guilty. Therefore, the pertinent question is whether the prosecution established the guilt of the accused much less beyond reasonable doubt. 11. As already pointed out, none of the witnesses found the accused pouring kerosene over the deceased. The whole case of the prosecution rests upon the statement of the deceased.
Therefore, the pertinent question is whether the prosecution established the guilt of the accused much less beyond reasonable doubt. 11. As already pointed out, none of the witnesses found the accused pouring kerosene over the deceased. The whole case of the prosecution rests upon the statement of the deceased. The case of the prosecution inter alia is that PW13 recorded the statement of the deceased under EX.P1 and that PW4 recorded the dying declaration of the deceased under Ex.P4. As the deceased claimed in both the statements that the accused quarreled with the deceased, poured kerosene over her and set her to fire with a view to kill her. The prosecution contended that the accused is guilty of the offence under Section 302 IPC. On the other hand, the learned defence Counsel contended that the two statements of the deceased under Exs.P1 and PA are so inconsistent with each other that the accused cannot be convicted for the death of the deceased. 12. PWI, mother of the deceased deposed that while police examined and recorded the statement of the deceased which is under Ex.P1-she deposed that she did not remember if any other authority recorded the statement of the deceased. PW2, father of the deceased, on the other hand, deposed that not only police and a Judicial First Class Magistrate, but a Mandal Revenue Officer also recorded the statement of the deceased. The witnesses also stated that the deceased informed one and all that the accused set fire to the deceased. Neither the representation of the deceased to the witnesses nor the statement of the deceased to the Mandal Revenue Officer was reduced into writing. The alleged statement of the deceased before the Mandal Revenue Officer was not produced before the Court. However, when the prosecution did not furnish the entire pre-trial statements to the accused, a presumption deserves to be drawn that the withheld pre-trial statements were in favour of the accused. However, PW 16, Mandal Revenue Officer, who conducted the inquest, deposed that he examined the witnesses at the time of inquest. He did not state that he examined the witnesses independently. The question of the Mandal Revenue Officer recording the statement of the deceased and withholding the same thereafter therefore did not arise. Consequently, this is not a case where pre-trial statements of the witnesses were withheld by the prosecution automatically entitling the accused for acquittal. 13.
He did not state that he examined the witnesses independently. The question of the Mandal Revenue Officer recording the statement of the deceased and withholding the same thereafter therefore did not arise. Consequently, this is not a case where pre-trial statements of the witnesses were withheld by the prosecution automatically entitling the accused for acquittal. 13. Indeed, the learned defence Counsel primarily attacked the case on the point of inconsistent statements under Exs.P1 and P4 and not on the claim of PW2 that the Mandal Revenue Officer also recorded the statement of the deceased. 14. The learned defence Counsel contended that when there is more than one dying declaration, unless the dying declarations are consistent with each other on material particulars, the dying declarations become suspicions. In support of her contention, the learned defence Counsel placed reliance on the following cases: (i) In Kamla v. State of Punjab, AIR 1993 SC 374 , there were as many as four dying declarations in a bride burning case. The dying declarations contained glaring inconsistencies in naming the very culprit. One of the dying declarations even suggested that the incident was an accident. The Supreme Court held that it would not be safe to convict the accused under Section 302 IPC on the basis of one of the four dying declarations. (ii) In State of Andhra Pradesh v. P. Khaja Hussain, 2010 (1) ALD (Crl.) 397 (SC), the husband allegedly murdered the wife by pouring kerosene over her and setting fire to her. There were two dying declarations, first of which was recorded by a judicial Magistrate while the second was recorded by a police officer. There was variation in between the two dying declarations regarding the manner in which the deceased was set on fire. The variation was not a trivial variation. Even the scenario, described in the dying declarations was different. The Supreme Court considered that it was not safe to convict the accused on the basis of such inconsistent dying declarations. (iii) In Gopal v. State of A.P., 2010 (1) ALD (Crl.) 126 (SC), there were more than one dying declaration. The Supreme Court held that it is not the plurality of the dying declarations, but the reliability of the dying declarations that determines the truth of the prosecution story.
(iii) In Gopal v. State of A.P., 2010 (1) ALD (Crl.) 126 (SC), there were more than one dying declaration. The Supreme Court held that it is not the plurality of the dying declarations, but the reliability of the dying declarations that determines the truth of the prosecution story. If the dying declaration was found to be voluntary, reliable and was made in a fit mental condition, the Supreme Court considered that such a dying declaration could be relied upon without any corroboration and that the plural dying declarations should be consistent throughout. The Supreme Court further elaborated that if there are inconsistencies in the dying declarations, the Courts should examine whether the inconsistencies are material or non-material. 15. The learned Public Prosecutor contended that the inconsistency in between Exs.P1 and P4 is not material and that the dying declarations, therefore, deserve to be accepted. The question, therefore, is whether Exs.P1 and P4 are consistent enough to accept that they establish the guilt of the accused beyond reasonable doubt. 16. Ex.P1 was recorded at 11.45 p.m. on 6.10.2004. Indeed, it was more or less recorded as a statement and not as a dying declaration. It was recorded by PW13. The deceased Bhadram, wife of the accused stated in EX.P1 that her husband poured kerosene over her and set her ablaze. This is the gist of Ex.P 1. 17. Going into the particulars of Ex.P1, the deceased stated to PW 13 that at about 7.30 p.m. on 6.10.2004, the accused went home in a drunken state having evaded work for the day. It was the case of the deceased that the deceased had questioned the accused as to how the family could be run if the accused went on contracting debts and had failed to make any earnings and that quarrels ensured between the accused and the deceased as the deceased questioned the attitude of the accused. 18. The deceased thereafter claimed that the accused became angry as she questioned the accused about his conduct, that the accused brought kerosene available in the house, sprinkled the same on the body of the deceased and set fire to the deceased with a matchstick and that the accused thereafter took to heels. 19. EX.P4 is the dying declaration recorded by PW4.
19. EX.P4 is the dying declaration recorded by PW4. The material part of the story of the deceased before PW4 can be found in answers to the questions 13 and 14 under EX.P4. The learned Magistrate recorded the dying declaration of the deceased from about 12.05 a.m. till about 12.45 a.m. on 6/7.10.2004. In other words, Ex.P4 was recorded subsequent to Ex.P1, as EX.P1 was recorded at about 11.45 p.m. on 6.10.2006. 20. The deceased stated to PW4 that the accused beat her when the accused went home at about 7 p.m. on 6.10.2004 in a drunken state and did not go to work for the day and when the deceased questioned about the consumption of alcohol by the accused and his not going to work for the day. 21. She further deposed before PW4 that when the deceased asked the accused why did he consume alcohol, the accused in turn questioned the deceased why was she questioning the accused on the same aspect frequently and that so challenging the deceased, the accused went into the house, brought a kerosene lamp, poured kerosene from the lamp on the body of the deceased and set fire to the deceased with the kerosene lamp. 22. Under Question No.13 in Ex.P4, the deceased informed PW4 that the accused beat her when the deceased questioned the accused about his conduct and attitude. In Ex.P1, there was no reference to such beating of the deceased by the accused. In Ex.P1, the deceased merely stated that quarrels developed between the accused and the deceased. 23. In Ex.P1, the deceased stated that the accused brought kerosene found in the house and sprinkled the same on the body of the deceased. In Ex.P4, the deceased stated that the accused brought a kerosene lamp from the house and poured kerosene from the lamp over the body of the deceased. Finally, in Ex.P1, the deceased claimed that the accused set fire to the deceased by lighting a match stick and throwing the same at the deceased. In Ex.P4, the method adopted by the accused in setting the deceased ablazed was lighting the body of the deceased with the kerosene lamp. 24.
Finally, in Ex.P1, the deceased claimed that the accused set fire to the deceased by lighting a match stick and throwing the same at the deceased. In Ex.P4, the method adopted by the accused in setting the deceased ablazed was lighting the body of the deceased with the kerosene lamp. 24. Thus, (a) in Ex.P1, there was a quarrel between the accused and the deceased while in Ex.P4, the accused beat the deceased, (b) in Ex.P1, the accused sprinkled kerosene found in the house over the deceased while in Ex.P4, the accused poured kerosene from the lamp, and (c) in Ex.P1, the accused set fire to the deceased with match sticks while in EX.P4 the accused lighted the body of the deceased with the kerosene lamp. 25. Smt. N. Ammaji, learned Counsel for the accused contended that the inconsistencies mentioned above are glaring contradictions in Exs.P1 and P4 statements. It is not even as though there was considerable gap between Exs.Pl and P4 for the memory of the deceased to slip. Ex.P1 was recorded at 11.45 a.m. and recording of EX.P4 commenced 20 minutes thereafter at 12.05 a.m. Despute the short time between Exs.P1 and P4, the deceased changed the mode and manner of the incident. The learned Public Prosecutor contended that in both the statements, the deceased stated that the accused poured kerosene over her and set her ablaze and that the inconsistencies referred to by the learned Counsel for the accused are so minor that they deserve to be ignored. 26. If the above inconsistencies are viewed in isolation, each of the three inconsistencies is a minor inconsistency. Viewed comprehensively, the differences of not one but three aspects become a major issue of contradiction. Add to it is the fact that there was no direct evidence at all barring for the statements of the deceased. In such an event, the inconsistencies in the statements of the deceased become glaring contradictions. A decision of the Supreme Court has already been referred to in Khaja Hussain's case (supra), where it was held that in case of multiplicity of dying declarations, the dying declarations should be consistent on material facts.
In such an event, the inconsistencies in the statements of the deceased become glaring contradictions. A decision of the Supreme Court has already been referred to in Khaja Hussain's case (supra), where it was held that in case of multiplicity of dying declarations, the dying declarations should be consistent on material facts. In the present case, where there was no direct evidence and where the two statements under Exs.P1 and P4 were recorded with a small gap of about 20 minutes, the differences in the mode and manner of the incident as narrated in Exs.P1 and P4 become flagrant leading to circumstances where it would not be safe to convict the accused on the strength of Exs.Pl and P4 which did not agree with each other. 27. PW2, father of the deceased admitted that he was with the deceased in the hospital till her death and that the deceased talked to him. PWI also leaves a distinct impression that she had access to the deceased from the time she was found in a burnt condition at her house till she died. PWs.6, 7 and 10 also left no doubt that they had opportunity to interact with the deceased before her first statement under EX.P1 was recorded by PW13. It is not as though the deceased was tutored to speak against the accused. At the same time, it is for the prosecution to show why the deceased made different statements within a short span of time. Where the prosecution failed to explain and synchronize the differences in Exs.P1 and P4 regarding the mode and manner of the incident, it is not safe to place reliance solely upon Exs.P1 and P4 to convict the accused. 28. There is yet another curious aspect in this case. Ex.P4 dying declaration is claimed to be not acceptable on the ground that it was recorded in violation of Rule 33 of the Criminal Rules of Practice, 1990 and the judicial oP1nion. In Ex.P4, question No.11 and answer thereto is the core of the controversy. They read: "II. Can you give statement? I can state" PW4 thereafter recorded that from .he preliminary questions put to the declaring (the deceased herein) he was satisfied that the deponent was in a fit state to make a declaration. He obtained the statement of the duty doctor thereafter that the deponent was conscious and coherent to make the statement. 29.
Can you give statement? I can state" PW4 thereafter recorded that from .he preliminary questions put to the declaring (the deceased herein) he was satisfied that the deponent was in a fit state to make a declaration. He obtained the statement of the duty doctor thereafter that the deponent was conscious and coherent to make the statement. 29. The learned Counsel for the accused contended that PW4 did not follow Rule 33 of the Criminal Rules of Practice. Rule 33(2) ordains that the Munsif Magistrate who intends to record the dying declaration should ask the declarant whether the declarant was mentally capable of making a declaration. It is the contention of the learned Counsel for the accused that PW4 did not ask the deceased whether she was mentally capable of making the declaration. She pointed out that PW4 merely asked the deceased whether the deceased could make a statement and did not ask whether the deceased was mentally capable of making the statement. This contention appears to be slightly hyper technical. The learned Counsel for the accused would appear to suggest that the Judicial Magistrate of First Class should put the exact words to the deceased about her mental capability. 30. The learned Public Prosecutor placed reliance upon Laxman v. State of Maharashtra, 2002 (2) ALD (Crl.) 505 (SC), to contend that the Court must satisfy itself that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Where eyewitnesses stated that the deceased was in a fit and conscious state to make the declaration, the Court considered that the medical oP1nion contrary to the observation of the eye-witnesses would not prevail nor could it be said that as there was no certification of the Doctor regarding the fitness of the mind of the declarant, the dying declaration was not acceptable. 31. On the other hand, Smt. N. Ammaji placed reliance upon a later decision of the Supreme Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P., 2008 (1) ALD (Crl.) 316 (SC). In that case, there were two dying declarations. One of them was recorded by a police officer. The other dying declaration was recorded by a Munsif Magistrate. The accused questioned. the fitness of the deceased to make the statement.
In that case, there were two dying declarations. One of them was recorded by a police officer. The other dying declaration was recorded by a Munsif Magistrate. The accused questioned. the fitness of the deceased to make the statement. The deceased was admitted in the hospital with as many as 63 injuries including injuries on parietal and occipital regions. The deceased could have gone into koma in view of the injuries on the' parietal and occipital regions. There were doubts regarding the mental fit condition of the deceased to make the voluntary and true statement. Further, curiously, there was no positive evidence as to when the deceased actually died. Added to it, the Doctor, who was present at the time of recording of both dying declarations, was not examined by the prosecution. Where the two dying declarations were inconsistent with each other and were conflicting, the Supreme Court held that it was not safe to record a conviction on the basis of the dying declaration. The learned Counsel for the accused pointed out that Dr. Prudhivi Raj, who recording that the deceased was in a fit state of mind to make the statement, was not examined by the prosecution and that there were inconsistencies between Exs.P1 and P4 regarding the mode and manner of the actual incident, so much, it is not safe to rely upon Exs.P1 and P4 to record a conviction against the accused. 32. In Munnawar and others v. State of U.P., 2010 (2) ALD (Crl.) 133 (SC), a dying declaration was recorded by an Executive Magistrate. The Doctor made an endorsement on the dying declaration. At the time of recording of the dying declaration, the condition of the deceased was not precarious or critical. The Supreme Court considered that reliance can be placed upon such a dying declaration to record a conviction against the accused. Distinguishing this case from Nallapti Sivaiah',' case (supra), the learned Counsel defence Counsel contended that in that case, the condition of the deceased was not critical whereas in the present case, the deceased was completely burnt and breathed her last less than 12 hours after the recording of the Exs.P1 and P4. It is her claim that where the deceased was in a shock on account of the severe bums that she has sustained, the prosecution must establish that the deceased was in a fit mental condition to make the statement.
It is her claim that where the deceased was in a shock on account of the severe bums that she has sustained, the prosecution must establish that the deceased was in a fit mental condition to make the statement. In Ex.P5 post-mortem report, Column No.11 in the general observations shows that the deceased sustained very serious bums. The oP1nion of the Doctor as to the cause of death under Ex.P5 is shock on account of extensive bum injuries. Therefore, the dying declaration of the deceased should be recorded after taking due precautions envisaged by the Rule 33 of the Criminal Rules of Practice and the judicial oP1nion expressed through various cases. However, the only positive point that the learned Public Prosecutor would show is answer to question No.11 in Ex.P4 which was already quoted. We are afraid that the answer of the deceased that she could make a statement is not sufficient to hold that the deceased stated that she was in a fit state to make a statement. Barring for question No.11 in Ex.P4, there is no other material either in Ex.P1 or Ex.P4 to show that the deceased was in a fit state of mind to make a dying declaration. Added to this situation is the consistency between Exs.P1 and P4, which the prosecution failed to explain. Conjointly, the circumstances are not enough convincing to ignore the inconsistency and also to ignore the failure to record the mental willingness of the deceased to make a declaration to conclude that Exs.P1 and P4 clinchingly proved the guilt of the accused beyond reasonable doubt. It may be stated that in the absence of other inconsistencies, the declaration of the deceased pointing out the accused as the culprit would indeed be sufficient to convict the accused for the offence under Section 302 IPC. But, the inconsistencies and the failure to follow the procedure contemplated under Section 33(2) of the Criminal Rules of Practice would accrue in favour of the accused, in the absence of other direct or circumstantial I evidence establishing the guilt of the accused. 33. It may be recalled that there is no eye-witness account in this case. The witnesses found the deceased in a burnt condition. They admitted that the deceased is in the hospital. Therefore, there' is no direct evidence to show that the accused set fire to the deceased.
33. It may be recalled that there is no eye-witness account in this case. The witnesses found the deceased in a burnt condition. They admitted that the deceased is in the hospital. Therefore, there' is no direct evidence to show that the accused set fire to the deceased. The strong circumstantial evidence before the prosecution is Exs.P1 and P4. For the reasons already set out, they are not sufficient to bring home the guilt of the accused, much less beyond reasonable doubt. 34. Another aspect going against the prosecution is the failure of the prosecution to produce the kerosene lamp. The deceased stated in EX.P4 that the accused set her ablaze by pouring kerosene over her from the kerosene lamp and later setting fire to her with the kerosene lamp. Nevertheless, when PW 15 visited the house of the accused and the deceased bearing D.No.10/115 in the presence of PW12 and other mediators, PW 15 found burnt match sticks, but did not find any kerosene lantern. PW14 allegedly seized the burnt matchsticks constituting MO2. Thus, the recovery of MO2 matchstick does not agree with Ex.P4, dying declaration of the deceased. Further, the F .S.L. report under Ex.P 19 discloses that the matchsticks did not smell kerosene. If the accused set the deceased ablaze with the help of matchstick, the matchstick would obviously smell kerosene. Indeed, the match stick does not smell kerosene per se is not a material fact against the prosecution. However, it would work out as a negative factor to the case of the prosecution, if the stand of the deceased as mentioned in EX.P4 is accepted. On the other hand, if the statement of the deceased under Ex.P4 is not accepted, in view of MO2, the very case becomes redundant as there is no direct evidence to conclude that the accused murdered the deceased by pouring kerosene over her and setting her ablaze. 35. PW1 goes to the extent of admitting that MO1- kerosene tin also did not smell kerosene. This is yet another factor that the case of the prosecution regarding the pouring of kerosene from Mal-tin upon the deceased and setting fire to the deceased with MO2-matchstick was not true. Inter alia, the learned Counsel for the accused contended that PW8 who conducted autopsy did not depose that the deceased was smelling kerosene.
This is yet another factor that the case of the prosecution regarding the pouring of kerosene from Mal-tin upon the deceased and setting fire to the deceased with MO2-matchstick was not true. Inter alia, the learned Counsel for the accused contended that PW8 who conducted autopsy did not depose that the deceased was smelling kerosene. When a person is suffering from extensive bum injuries whether cause on account of kerosene, petrol or otherwise, it is not possible for the body of the burnt person to emit kerosene or petrol smell as the flesh of the deceased gets cooked in extensive bum cases. What is discharged is the smell of cooked flesh and skin and not kerosene, petrol or other object. No adverse inference, therefore, deserves to be thrown merely because the body of the deceased was not discharging kerosene small. 36. The learned Public Prosecutor contended that PW5 has no animosity towards the accused and that his evidence that the deceased informed PW5 and others that the accused pouring kerosene over her and set her ablaze deserves to be accepted. The evidence of PW5 certainly adds as a corroborative P1ece of evidence. It, however, cannot substitute as proof for the main case. Where the prosecution failed to establish the main case as it failed to explain various inconsistencies including the inconsistencies in the mode and manner of incident in Exs.P1 and P4 and the non-seizure of the kerosene lamp as well as the absence of any eye-witness account throws doubts over the truth of the prosecution case. 37. It is true that the deceased suffered from bum injuries and died on account of the bum injuries. It does not automatically mean that the accused was guilty of causing the burn injuries merely because the deceased claimed that the injuries were caused by the accused. The evidence would only establish that the deceased suffered from bum injuries and that she •ultimately died of the bum injuries. The evidence on record is not sufficient to conclude that the bum injuries were caused by the accused to convict the accused for the offence under Section 302 IPC. The accused consequently deserves to be found not guilty for the offence with which he is charged. 38. We are not able to agree with the observations of the learned trial Judge.
The accused consequently deserves to be found not guilty for the offence with which he is charged. 38. We are not able to agree with the observations of the learned trial Judge. The learned trial Judge would appear to have been carried away by Exs.P1 and P4 and by the evidence of the witnesses who rescued the deceased while she was in inflames. For the reasons already set out, neither the oral evidence nor the documentary evidence is sufficient to bring home the guilt of the accused, at any rate, beyond reasonable doubt. We, accordingly, set aside the conviction and sentence recorded by the learned trial Judge. The accused is found not guilty of the offence under Section 302 IPC and is acquitted under Section 386 read with Section 235(1) of the Code of Criminal Procedure. The accused is said to be in jail. The accused shall be released forthwith if he is not required in any other case. The fine amount, if already paid by the accused, shall be refunded to him. The order regarding the disposal of the material objects as recorded by the trial Court is maintained. 39. Before parting with the case, we would like to place our appreciation towards Smt. N. Ammaji for conducting the case with dexterity. She would appear to have prepared quite well and advanced submissions with consummate authority. 40. The criminal appeal is, accordingly, allowed.