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CASE NO.:

Appeal (crl.) 985 of 1997

PETITIONER:

B. Shashikala

RESPONDENT:

State of Andhra Pradesh

DATE OF JUDGMENT: 22/01/2004

BENCH:

Doraiswamy Raju & S.B. Sinha.

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

This appeal by the appellant herein arises out of a

judgment of conviction and sentence passed by a Division

Bench of the Andhra Pradesh High Court in Criminal Appeal

No. 606/96 whereby and whereunder the judgment passed by

Additional Session Judge, Ranga Reddy District dated

21.6.1996 in S.C. No. 47/93 convicting the appellant herein

for commission of an offence under Section 302 of the Indian

Penal Code and sentencing her to undergo life imprisonment

was modified to one under Section 304 Part \026 II of the

Indian Penal Code and sentencing her to undergo rigorous

imprisonment for 4 years.

The basic facts of the matter shortly stated are as

under :

The deceased was married to Radha Krishna, PW 2,

brother of the appellant herein on or about 15.5.1990. The

appellant and her mother Heeramani (since deceased) and one

B. Harikrishna had been abusing and harassing the deceased

for compelling her to bring T.V. and other articles. Radha

Krishna, the husband of the deceased having regard thereof

decided to reside separately in the same house alongwith his

wife. On 23.1.1991 at about 1.00 p.m., the appellant and

her mother entered into the room of the deceased. She was

then reading a book. The appellant poured kerosene on her

and her mother closed the deceased's mouth whereafter fire

was set on her by the accused No. 1. Thereafter she rushed

outside with flames on her person shouting for help. Two

neighbours, Ch. Susheela and Smt. N. Yadamma attracted by

her shouts came and poured water. Her dress was changed and

she was taken to the Railway Hospital by them followed by

one Sri G. Venugopal, another neighbour.

While she was in the Railway Hospital, the Head

Constable of Malkajgiri police station recorded her

statement at about 7.30 p.m. on 23.1.1991 on the basis

whereof a case under Sections 498-A and 307 IPC was

registered. She later on died. The brother of the appellant,

(the husband of the deceased) supported the prosecution case

fully at the investigation stage. A charge under Section

302 of the Indian Penal Code was framed against the

appellant and the accused No. 3, as in the meanwhile the

accused No. 1 died.

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Before the learned Session Judge, 21 prosecution

witnesses were examined including the brother of the

appellant as also the neighbours.

The learned Session Judge having regard to the

materials on records held the appellant guilty of charges

under Section 302 of the Indian Penal Code. The Accused No.

3, however, was acquitted. On appeal, the High Court

although substantially affirmed the findings of the learned

Session Judge but altered the conviction and sentence from

one under Section 302 to Section 304 Part-II of the Indian

Penal Code stating:

"...Till her death what type of

medicines were given to save her from

the burn injuries are not produced

before the Court. It is also not

explained by the prosecution that during

the deceased's stay in the hospital, she

was treated by the able doctor. In the

absence of such explanation, it is also

possible to believe that the deceased

might have died due to untime and

improper medicines given by the doctors

in the hospital. In view of the

circumstances explained, the submission

made by Sri Ramanadham that it was not

the intention of A-2 to kill the

deceased is correct. Therefore, the

appeal deserves to be allowed in part

and accordingly it is allowed in part.

However, the conviction under Section

302 IPC and the sentence of life

imprisonment are set aside and it is now

ordered that A-2 is convicted for the

offence under Section 304 Part-II IPC

and sentenced to undergo rigorous

imprisonment for 4 years, in view of her

young age and other special

circumstances pointed out by Sri

Ramanadham regarding sentence. This

shall not be the precedent for other

cases."

This appeal has been filed questioning the

aforementioned judgment of conviction and sentence.

Mr. T. Anil Kumar, learned counsel appearing on behalf

of the appellant would submit that the learned Session Judge

and the High Court committed an error in passing the

judgment of conviction and sentence against the appellant

inasmuch as the prosecution has failed to prove the motive

for commission of the crime. The learned counsel would

contend that the so-called dying declaration being not

admissible in evidence could not have been relied upon

inasmuch as the Magistrate who recorded the same did not

know Hindi nor the person who translated the same was

acquainted with the said language.

The learned counsel would urge that from the deposition

of the mother of the deceased it cannot be said that any

case of demand of dowry has been made out.

It is not in dispute that PW 8 B. Surendra Reddy, the I

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Additional Sub-Judge working in Kakinada at the relevant

time was posted as Munsif Magistrate, Hyderabad, West and

South. The said witness in his deposition categorically

stated that on receiving a requisition containing a request

to record the dying declaration of the deceased, he went to

the hospital and recorded the same. It is also not in

dispute that the doctor treating the deceased declared that

she was 'conscious, coherent and in a fit condition to give

evidence'. As she did not know Telugu or English, the

doctor translated the question put by him into Hindi and

translated the answers given by declarant into English. The

statement so recorded was read over and explained to her by

the doctor and she admitted the same to be true and correct.

An endorsement to that effect was also made by the doctor.

PW 8 in his deposition clearly stated that he can understand

Hindi as having worked as Munsif Magistrate, Hyderabad West

and South as also III Metropolitan Magistrate and II

Additional Rent Controller for three years, 'he had

occasions to examine various witnesses who used to speak in

Hindi and advocates used to translate the deposition in

English and according to the said witness he used to follow

the witnesses as to whether advocates were translating the

same correctly or not'. The witness categorically stated

that 'he was satisfied that the doctor had translated and

what all the deceased had been telling about was correct'

and recorded the same.

It may be true, as has been pointed out by the learned

counsel, that the doctor Dr. K. Prahlad PW 4 examining

himself as a witness could not convey the meaning of 'sasur'

and 'sas' but he clarified that he knew Hindi to some extent

only. But he clarified that as the deceased was although

speaking in Hindi but here and there she also used English

words and as such he could understand the terms of the same.

What was necessary in a situation of this nature is

working knowledge in Hindi. PW 4 and PW 8 may not be able

to speak or write chaste Hindi but evidently they understood

the statement of the deceased in Hindi.

In the dying declaration, PW 4 made the following

endorsement:

"It is certified that the patient is

conscious, coherent and in a fit state

of mind throughout the statement and I

solemnly affirm and state that I

translated the questions put by the

Hon'ble Magistrate in English, into

Hindi and translated the address given

by the patient in Hindi into English and

I made the true translation of the

same."

Another statement was also made by PW 8 stating :

"It is certified that the declarant is

conscious, coherent and in a fit state

of mind throughout the proceedings, that

the Doctor translated my questions into

Hindi and the answers given by the

declarant in Hindi into English as the

declarant do not know Telugu and unable

to give answers in English and that the

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Doctor read over and explained her

statement in Hindi and she admitted the

same to be true and correct and signed

the same and that I recorded the

statement in the presence of Dr. K.

Prahalad on this 23rd day of January,

1991."

The evidence of PW 8 is absolutely clear and

unambiguous as regard the manner in which he recorded the

statement of the deceased with the help of PW 4. It is also

evident that he has also knowledge of Hindi although he may

not be able to read and write or speak in the said language.

His evidence also shows that he has taken all precautions

and care while recording the statement. Furthermore, he had

the opportunity of recording the statement of the deceased

upon noticing her gesture. The Court in a situation of this

nature is also entitled to take into consideration the

circumstances which were prevailing at the time of recording

the statement of the deceased.

The learned Session Judge keeping in view the evidence

of PW 8 who was a judicial officer was satisfied that the

dying declaration of the deceased had been recorded fairly

and correctly. Keeping in view the materials on record, we

do not find any infirmity therein.

It is also relevant to note that the statement of the

deceased was recorded prior to the coming of PW 10 and PW 11

to Hyderabad from Pune. In that view of the matter, any

possibility of her making any tutored statement is ruled out

as there was no person other than her husband at the

hospital.

Under sub-Section (1) of Section 32 of the Evidence

Act, any statement, written or verbal, of relevant facts

made by a person who is dead, or who cannot be found, or who

has become incapable of giving evidence, or whose attendance

cannot be procured without an amount of delay or expense

which, under the circumstances of the case, appears to the

Court unreasonable, would constitute relevant facts. If as a

result thereof, the Court is satisfied that the statement

made by a person who is now dead is relevant, the same

becomes admissible in terms of Sub-Section (1) of Section 32

of the Evidence Act.

It is not necessary that the dying declaration would be

admissible in evidence only when a statement is made in

expectation of a death. The law does not say so.

Section 32 of the Evidence Act is an exception to

hearsay rule.

In P.V. Radhakrishna vs. State of Karnataka [(2003) 6

SCC 443], this Court laid down ten principles governing

dying declaration and held :

"13. In the light of the above

principles, the acceptability of the

alleged dying declaration in the instant

case has to be considered. The dying

declaration is only a piece of untested

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evidence and must, like any other

evidence, satisfy the court that what is

stated therein is the unalloyed truth

and that it is absolutely safe to act

upon it. If after careful scrutiny, the

court is satisfied that it is true and

free from any effort to induce the

deceased to make a false statement and

if it is coherent and consistent, there

shall be no legal impediment to make it

the basis of conviction, even if there

is no corroboration. (See Gangotri Singh

v. State of U.P. (1993 Supp.(1) SCC

327), Goverdhan Raoji Ghyare v. State of

Maharashtra (1993 Supp.(4) SCC 316),

Meesala Ramakrishan vs. State of A.P.

(1994) 4 SCC 182) and State of Rajasthan

v. Kishore (1996) 8 SCC 217).

14. There is no material to show that

the dying declaration was the result or

product of imagination, tutoring or

prompting. On the contrary, the same

appears to have been made by the

deceased voluntarily. It is trustworthy

and has credibility."

Together with the dying declaration, if we consider the

letters written by the deceased to her mother and sister

which have been marked as Exs. P10 to P13, it will be

evident that she had constantly been complaining about the

ill-treatment meted out to her by the accused No. 1 and 2.

She in Ex. P10 go to the extent of saying that unless

something is done and her mother comes immediately, that

letter should be treated as a last one. In all the letters

she has expressed her helpless condition.

The submission of the learned counsel to the effect

that in none of the letter, it was revealed that she was

asked to bring any dowry by her in-laws, although may be

correct but it was not expected that everything would be

written in those letters. The letters written by the

deceased clearly indicate that she had again and again been

asking all of them to come and see her pitiable condition.

In one of the letters, Ex. P13 it has been stated that even

the accused persons had been questioning the character of

her mother which she could not tolerate. Even in that

letter she had beseeched that the same be treated as a

telegram. PW 10 Chandravathi in her evidence also stated

that after her marriage the deceased was allowed to come to

her house only twice. PW 2 the husband of the deceased

although in his statement initially supported the case of

the prosecution but in his examination before the Court,

resiled from his earlier statement and was declared hostile.

The cause of the death of deceased, however, was not

disputed by him. He further deposed that a different mess

was created at least three months prior to the death of his

wife in the same house. The reason for the same is obvious.

Had the relationship between the deceased and the accused

persons been cordial, they would not have run a separate

mess. It is further evident from the record that the

marriage took place against the wishes of the other members

of the family and the same had not been attended by the

accused persons. It defies any logic as to why the deceased

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would go to the extent of falsely implicating the accused

persons. We may notice that before the learned Session

Judge a submission was made to the effect that the dying

declaration was recorded at the instance of PW 2 with a view

to get himself exculpated. Such a suggestion surprisingly

had not been given to the investigating officer.

So far as the contention of the appellant to the effect

that in Ex. P4 an endorsement has been made to the effect

that she suffered the injury as a result of an accident, is

concerned the likelihood of such a statement having been

recorded at the instance of appellant herself cannot be

ruled out. The incident took place when the accused Nos. 1

and 2 were in the House. Their presence in the house had

clearly been mentioned in the dying declaration. PW3 and PW

12 who were neighbours of the deceased had also made the

said statement. It is not in dispute that the appellant

herein together with the neighbour accompanied the deceased

to the hospital. Had it been a case of suicide and not

homicide, she would not have rushed out of the door with

flames on her person. There is nothing on records to show

that the appellant or her mother, although they were

residing in the same house and were present at the relevant

time, made any attempt to save her. It is borne out from

the records that only the lady neighbours poured water on

her, put out the fire and changed her saree. It is also

relevant to notice the opinion of PW 9, the Medical Officer

as recorded on 26.1.1991. He found on external examination

a dermoepidermal burns with charring seen all over the body

except small portion of ambelicus and portion of back and

some portion of below half of the left leg and also some

portion around over the left upper arm. The burns were

ante-mortem in nature and were about 85% in total.

PW 5 Nallagunta Simhadri in his evidence also

categorically stated "The room was smelling kerosene"

which is indicative of the fact that the fire took place

because of kerosene.

The Investigating Officer, PW 13 in his evidence stated

that he found a pump stove and a plastic kerosene tin with

1/4th litre of kerosene. He did not seize the kerosene

jar. He did not notice any marks of burning on the floor of

the room or cot inside the house. Food had also been

prepared. In these circumstances, a case of stove burst

must be ruled out. To the aforementioned extent, the

evidence of PW 13 has also been corroborated by PW 5.

We, therefore, do not find any infirmity in the

findings of the learned Session Judge as also the High

Court. The High Court in its judgment observed :

"...On a careful consideration of the

entire evidence, we find that the trial

court was justified in convicting the

accused as the case of the prosecution

is supported by both dying declaration

and corroborated by the other evidence.

Since the correctness of the dying

declaration, Ex. P-8 is not discredited,

the other evidence discloses that the

conviction is based on the dying

declaration. In this case not only

motive has been proved, but the role

played by the accused has been

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established by a reasonable doubt. The

findings given by the trial court are

just and proper. The deceased was

subjected to burn injuries. She was

taken to the Government hospital and

kept there..."

The High Court, however, despite arriving at the

aforementioned finding converted the conviction of the

appellant from one under Section 302 IPC to Section 304

Part-II IPC on the grounds stated hereinbefore. Such an

approach, in our opinion, is wholly unwarranted being

contrary to Explanation 2 appended to Section 299 of the

Indian Penal Code. But, since the State has not filed any

appeal in this regard, we desist from interfering with the

same. In the instant case, there is nothing on record to

show that the deceased had not been given any medical care

and attention. The findings of the High Court that the

deceased might have died due to untime and improper

medicines given by the doctor is based on surmises and

conjectures and not on any materials on record.

For the reasons aforementioned, we are of the opinion

that no case has been made out for interference with the

impugned judgment and the appellant already escaped with

higher punishment in view of the alteration of the nature of

offence, unjustifiably. The appeal is accordingly

dismissed.