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PETITIONER:

DANDU LAKSHMI REDDY

Vs.

RESPONDENT:

STATE OF A.P.

DATE OF JUDGMENT: 17/08/1999

BENCH:

K.T. Thomas, D.P. Mohapatra.

JUDGMENT:

THOMAS, J.

On the fact situation of a case such as this, a judicial

mind would tend to wobble between two equally plausible

hypotheses was it suicide, or was it homicide? If the dying

declaration projected by the prosecution gets credence the

alternative hypothesis of suicide can be eliminated

justifiably. For that purpose a scrutiny of the dying

declaration with meticulous circumspection is called for.

It must be sieved through the judicial cullendar and if it

passes through gauzes it can be made the basis of a

conviction, otherwise not.

The traditional assumption that a dying person would not

stoop to speak falsehood is now sought to be played down by

the counsel for the appellant on the premise that it is a

pedantic notion as the said assumption is fraught with the

danger of insulating even a vengeful statement made by a

dying person. Learned counsel submitted that at any rate

the dying declaration projected by the prosecution in this

case would not stand the test of credibility.

There can be a presumption that testimony of a competent

witness given on oath is true, as the opposite party can use

the weapon of cross-examination, inter alia, for rebutting

the presumption. But a dying declaration is not a

deposition in court. It is neither made on oath nor in the

presence of an accused. Its credence cannot be tested by

cross-examination. Those inherent weaknesses attached to a

dying declaration would not justify any initial presumption

to be drawn that the dying declaration contains only the

truth.

In Tapinder singh v. State of Punjab {1971 (1) SCR 599}

this Court, by following an earlier decision in Kushal Rao

vs. State of Bombay {1958 SCR 582) has reminded the courts

that a dying declaration should be subjected to very close

scrutiny. Following observations were also made by this

Court:

The dying declaration is a statement by a person as to

the cause of his death or as to any of the circumstances of

the transaction which resulted in his death and it becomes

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relevant under s.32(1) of the Indian Evidence Act in a case

in which the cause of that persons death comes into

question. It is true that a dying declaration is not a

deposition in court and it is neither made on oath nor in

the presence of the accused. It is, therefore, not tested

by cross-examination on behalf of the accused. But a dying

declaration is admitted in evidence by way of an exception

to the general rule against the admissibility of hearsay

evidence, on the principle of necessity. The weak points of

a dying declaration just mentioned merely serve to put the

court on its guard while testing its reliability, imposing

on it an obligation to closely scrutinise all the relevant

attendant circumstances.

Appellant in this case (Dandu Lakshmi Reddy) and his

mother Narayanamma (who is now reported to be aged above 70)

were convicted under Section 302 read with Section 34 of the

Indian Penal Code only on the strength of dying declarations

given by Lakshmi Devi (the deceased) on 7th October, 1997.

Both the accused were sentenced to imprisonment for life.

They together approached the High Court of Andhra Pradesh

challenging the conviction and sentence but in vain.

Appellants mother Narayanamma, in her old age, preferred to

surrender to her fate by languishing in jail without

approaching this Court, but her son the appellant - did not

lose heart and he filed this appeal by special leave.

Lakshmi Devi, the deceased, was given in marriage to the

appellant about 8 years before her death. But they had no

children. Prosecution case is the following:

The husband and mother-in-law of the deceased were

ill-disposed to her as she was unable to give birth to a

child. She was subjected to harassment and threats. They

used to scare her by saying that one day she would be put in

a well or a canal and thereafter the appellant would be free

to remarry. On the morning of the ill-fated day (7.10.1974)

appellant caught hold of her hair from behind, her

mother-in-law doused kerosene on her and asked the appellant

to set her ablaze. Appellant obeyed by lighting a match

stick and she caught fire. When she screamed out the

assailants took to their heels. But the neighbours,

including her relatives, rushed to the scene and in the

rescue operations flapped her in a blanket and extinguished

the fire. Parents of the deceased were informed about the

mishap. When they arrived at the house they too were told

by Lakshmi Devi of all what happened. She was then removed

to a Government hospital.

On the same day by about 12 noon, PW-12 - a Judicial

Magistrate of 1st Class, recorded Lakshmi Devis dying

declaration which he reduced to writing (Ext.P-11). The Sub

Inspector of police (PW-19) went to the hospital and

recorded her statement (Ext. P-14). In both the dying

declarations she attributed to the appellant and his mother

for the cause of her devastating burns.

During trial appellant adopted the stand that Lakshmki

Devi had some mental imbalance and also suicidal tendencies.

On an earlier occasion, it was elicited, she made an attempt

to electrocute herself but the imminent calamity was averted

by the timely intervention of others who switched off the

power supply. According to the defence, on the date of

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occurrence she would have either committed the act by

herself or she would have caught fire accidentally while

cooking food articles. The defence also alleged that two of

her cousins Narayana Reddy and Anki Reddy were at

loggerheads with the appellant and they had tutored Lakshmi

Devi to speak against the accused to the authorities.

Except the Judicial Magistrate and the Sub Inspector of

Police all the other witnesses examined by the prosecution

to depose to what Lakshmi Devi told them, have said in one

accord that she narrated to them that her clothes caught

fire while cooking milk. Even her father and mother, when

examined in court, said like that.

Trial court and the High Court dealt with the

contentions that deceased would not have been in a position

to give a dying declaration as she sustained extensive

burns. Defence counsel in the two courts below have raised

such contentions to make an onslaught on Ext.P-11 and

Ext.P-14 dying declarations. But those contentions were

repelled by the courts on valid grounds.

We would proceed on the assumption that Ext.P-11 and

Ext.P-14 contained what Lakshmi Devi had told the scribes of

those two documents. The pivotal question is whether the

said version of Lakshmi Devi is credible and reliable, or is

there room for entertaining any doubt about the truthfulness

of her version.

In view of the impossibility of conducting the test on

the said version with the touchstone of cross-examination we

have to adopt other tests in order to satisfy our judicial

conscience that those two dying declarations contain nothing

but truth.

First among such tests is to scrutinise whether there

are inherent improbabilities in that version. We are unable

to detect any such improbability inherent therein. The next

test is whether there is any inherent contradiction therein.

In that scrutiny we came across one material contradiction

as between the two dying declarations regarding the context

in which deceased caught fire. Ext.P-14 shows that she was

set fire to when she was lighting a stove for preparing the

coffee. The relevant portion of Ext.P14 is extracted herein

below:

Today morning i.e. 09.10.94 when I was lighting the

stove in the kitchen and preparing coffee at about 6.00 a.m.

my mother-in-law and husband came from behind. After

entering the kitchen, my husband caught hold of my hair and

I was unable to move. My mother-in-law Narayanamma

sprinkled kerosene on my body and clothes. She asked her

son to set fire, my husband lit the match- stick and threw

on my clothes. When my clothes caught fire I started

shouting with fear. My mother-in-law Narayanaamma and my

husband Laxmi Reddy ran away from there.

In Ext.P-11 (which is a dying declaration given to the

judicial Magistrate of 1st class) the context stated by the

declarant was altogether different. The relevant portion is

extracted below:

..........L.....T.......T.......T.......T.......T.......T..J

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My mother-in-law's name is Narayanamma, my

husband's name is Dandu Lakshmi Reddy. In the

morning at 6.00 a.m. when I was sweeping, my

mother-in- law Narayanamma and my husband Laxmi

Reddy both poured kerosene on me, lit the

match-stick and set me to fire.

The above material divergence between two dying

declarations pertaining to the occasion for launching the

murderous attack on the deceased did not create any

impression in the minds of the learned judges of the High

Court, as they have observed thus:

Though there is a difference in the version of

the deceased as to what she was doing at the

relevant point of time the fact remains that A-1

and A-2 poured kerosene and lit fire to her.

These aspects are mentioned in Ex.P.11 P.14.

Therefore, we are unable to agree with the

contention of the learned counsel for the accused

appellants.

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Thus the High Court has sidelined such a noticeable

discrepancy looming large as between the two different

statements made by the same person. When the sphere of

scrutiny of dying declaration is a restricted area, the

court cannot afford to sideline such a material divergence

relating to the very occasion of the crime. Either the

context spoken to in one was wrong or that in the other was

wrong. Both could be reconciled with each other only with

much strain as it relates to the opportunity for the culprit

to commit the offence. Adopting such a strain to the

detriment of the accused in a criminal case is not a

feasible course.

One important facet of the case is that all the

neighbours who gave evidence have said in one accord that

two persons (Narayana Reddy and Anki Reddy her cousins in

the first degree) were brainwashing her at the hospital.

The defence had persisted with the said line during cross-

examination of the witnesses right from beginning. Her own

parents have submitted that those two cousins had scores to

settle with the appellant on account a property dispute and

that those two were found in confabulation with Lakshmi Devi

at the hospital.

The more important circumstance which warrants soft-

pedalling of the dying declarations in Ext.P-11 and Ext.P-

14 is the testimony of Lakshmi Devi's parents (PW-7 Bali

Reddy and PW-8 Thiru Palamma). Both of them deposed in the

trial court that their daughter told them at the first

instance itself, when they saw her in charred flakes of her

skin, that she caught fire while cooking milk. Public

Prosecutor did not think it necessary to disown their

evidence, and hence no attempt was made to put leading

questions to those witnesses. Even that apart, what is the

effect of the testimony of PW-7 and PW-8? At any rate the

prosecution cannot disown it now. But the High Court made

an approach which is seemingly violation of legal sanction.

The following are the lines by which the High Court has

circumvented the evidence of the parents of Lakshmi Devi

which is binding on the prosecution:

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..........L.....T.......T.......T.......T.......T.......T..J

It is unfortunate that the public prosecutor has

not cross-examined PWs.7 and 8. But we have

perused the statements of PWs 7 and 8 recorded

under Section 161 Cr.P.C. The version therein is

quite different. We are not taking them into

consideration, but we have looked into them only

to find out the actual version of PWs.7 and 8. We

are of the opinion that PWs.7 and 8 have entirely

accommodated the accused appellants. Merely

because PWs.7 and 8 have stated that deceased told

them that she received burn injuries due to the

accident, the dying declaration Ex.P.11, recorded

by Magistrate, and the evidence of P.W.19 cannot

be thrown out.

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Section 162 of the Code of Criminal Procedure (for short

the Code) interdicts the use of any statement recorded under

Section 161 of the Code except for the limited purpose of

contradicting the witness examined in the trial to whom such

statement is attributed. Of course, this Court has said in

Raghunandan v. State of U.P. (AIR 1974 SC 463) that power

of the court to put questions to the witness as envisaged in

Section 165 of the Evidence Act would be untrammeled by the

interdict contained in Section 162 of the Code. The

following observations in the aforesaid decision, in

recognition of the aforesaid power of the court, would be

useful in this context:

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We are inclined to accept the argument of the

appellant that the language of Section 162

Criminal Procedure Code, though wide, is not

explicit or specific enough to extend the

prohibition to the use of the wide and special

powers of the Court to question a witness,

expressly and explicitly given by Section 165 of

the Indian Evidence Act in order to secure the

ends of justice. Therefore, we hold that

Section 162 Criminal Procedure Code does not

impair the special powers of the Court under Sec.

165 Indian Evidence Act.

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It must now be remembered that the said procedure can be

followed only when a witness is in the box. Barring the

above two modes, a statement recorded under Section 161 of

the Code can only remain fastened up at all stages of the

trial in respect of that offence. In other words, if the

court has not put any question to the witness with reference

to his statement recorded under Section 161 of the Code, it

is impermissible for the court to use that statement later

even for drawing any adverse impression regarding the

evidence of that witness. What is interdicted by the

Parliament in direct terms cannot be obviated in any

indirect manner.

We are unable to concur with the manner in which the

Division Bench of the High Court sidestepped the crucial

evidence of PW-7 Bali Reddy and PW-8 Thiru Palamma (father

and mother of deceased Lakshmi Devi) which diametrically

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went against the version of the deceased in Ext.P-11 and

Ext.P-14.

Yet another circumstance which is capable of dissuading

us from giving any credence to the version of the deceased

is that her father (PW-7) and mother (PW-8) have said that

Lakshmi Devi was not mentally sound. A criminal court

cannot ignore the said evidence of the parents of the

deceased. If the court has even a slight doubt about the

mental soundness of the author of the dying declaration it

would be unsafe to base a conviction on such a statement,

albeit its inadmissibility under Section 32 of the Evidence

Act.

As the dying declaration is tested thus on the

touchstones available in evidence and permitted by law, it

does not stand scrutiny. It will be unsafe to convict any

person on the strength of such a fragile and rickety dying

declaration.

We are, therefore, unable to sustain the conviction of

the appellant. He is entitled to benefit of doubt.

The mother of the appellant Narayanamma is languishing

in jail at present pursuant to the conviction and sentence

awarded to her in this case. Of course her conviction is

not before us as she did not file any special leave

petition. But this Court has set up a judicious precedent

for the purpose of averting miscarriage of justice in

similar situations. On the evaluation of a case, if this

Court reaches the conclusion that no conviction of any

accused is possible the benefit of that decision must be

extended to his co-accused also though he has not challenged

the order by means of an appeal petition to this Court,

(vide Raja Ram and ors. v. State of M.P. {1994 (2) SCC

568}.

Resultantly we set aside the conviction and sentence

passed on the appellant and his mother Narayanamma. We

acquit them both and they are directed to be set free unless

they are required in any other case.