http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

PAPARAMBAKA ROSAMMA & ORS.

Vs.

RESPONDENT:

STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 13/09/1999

BENCH:

S.P.Kurdukar, K.T. Thomas, N.Santosh Hedge

JUDGMENT:

S.P.KURDUKAR, J.

The three appellants, namely, Paparambaka Rosamma

(A-1), Baduru Sashi @ Sashikala (A-2) and Baduru

Venkatesarlu (A-3) have filed this criminal appeal after

obtaining the leave of this Court, challenging the legality

and correctness of the judgment and order of conviction for

offences punishable under Sections 498-A, 302 and 302/114

IPC passed by the Andhra Pradesh High Court, Hyderabad.

Originally A-1 to A-3 and acquitted accused A-4 were put up

for trial for the aforesaid offences. The appellants, the

acquitted accused and Venkata Ramana (since deceased) are

closely related to each other. A-1 is the maternal grand

mother of Venkata Ramana, A-2 is the daughter of A-1 and is

married to A-3. A-4 is the son of A-1. A-4 was married to

Venkata Ramana and he happened to be the real maternal uncle

of Venkata Ramana. A-3 is also the son of sister of A-1.

2. The marriage between A-4 and Smt. Venkata Ramana

was solemnised some time in 1990 and since then she was

residing at her matrimonial home. A-4 was working as a

coolie in a steel company and had constructed a thatched hut

at Tenali. The hut of parents of Smt. Venkata Ramana was

situated at a short distance from the hut of A-4 at Tenali.

A-2 and A-3 after their marriage had come to stay with A-1.

It was not liked by Smt. Venkata Ramana and, therefore, she

was instigating A-4 to live separately or A-2 and A-3 should

be asked to leave the hut. It is the prosecution case that

A-2 and A-3 were residing in a separate portion in the same

hut. It is then alleged by the prosecution that there used

to be frequent quarrels between Smt. Venkata Ramana on one

side and A-1 to A-4 on the other as Smt. Venkata Ramana was

insisting that she should stay along with her husband

separately. A-1 to A-4 were not prepared to concede to her

demand and as a result thereof, they meted out ill treatment

to Smt. Venkata Ramana. It has come on record that Smt.

Venkata Ramana on the earlier occasion tried to commit

suicide, but, however, failed in her attempt.

3. The incident in question which gave rise to the

present prosecution occurred on March 4, 1994 at about 12.30

noon. It is alleged by the prosecution that when Smt.

Venkata Ramana was in her hut, A-2 and A-3 came there and

picked up a quarrel with Smt. Venkata Ramana. A-2 and A-3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

then at the instigation of A-1, poured kerosene on Smt.

Venkata Ramana and thereafter they threw a lighted

matchstick on her. Within a short time, the clothes of Smt.

Venkata Ramana caught fire. A-3 then poured the water and

tried to extinguish the fire. The injured was then taken to

the government hospital at Tenali where Dr. K. Vishnupriya

Devi ( PW 10) examined her and found to be in a serious

condition. She sent a requisition to K.Lakshmana Rao (PW

13), the Addl. Munsiff Magistrate, Tenali, for recording

the dying declaration. K.Lakshamana Rao (PW 13) reached the

hospital at about 2.30 p.m. and recorded the dying

declaration (Ex.P-14). The injured was then shifted to

Guntur Medical College, Guntur, for further treatment. The

injured succumbed to her injuries on March 9, 1994 in the

hospital. Vaitheru Sambaiah (PW 2)-the father of Smt.

Venkata Ramana, lodged the first information report at

Tenali police station as regards the incident and on the

basis thereof, a crime came to be registered for the

offences punishable under Sections 498-A, 307 read with

Section 34 IPC. After receipt of the information about the

death of injured, offence punishable under Section 307 IPC

read with Section 34 IPC came to be altered to one under

Section 302/114 and 498-A IPC. After completing the

investigation, charge sheet came to be filed against all the

four accused for the offences punishable under Sections

498-A, 302, 302/114 IPC. The trial court framed the charges

against all the four accused, but they denied all these

charges. According to them, they are innocent and have been

falsely implicated in the present crime.

4. All the close relatives of Smt. Venkata Ramana,

who could have deposed to the ill-treatment meted out to her

did not support the prosecution and turned hostile. This

list included the parents, brother and other relatives of

Smt. Venkata Ramana. Consequently, the trial court as well

as the High Court could not rely upon the evidence of these

witnesses and had to consider and rely upon the dying

declaration (Ex.P- 14) and the evidence in that behalf. The

dying declaration of Smt. Venkata Ramana is at Ex. P-14

and was sought to be proved by the prosecution through the

evidence of Shri K.Lakshamana Rao (PW 13), the then Addl.

Munsiff Magistrate, Tenali, and Dr. K.Vishnupriya Devi (PW

10). It is, therefore, admitted position that the judgments

and order of convictions passed by the courts below is

solely based upon the dying declaration Ex.P-14. We are,

therefore, required to consider carefully the dying

declaration Ex.P-14 and the evidence of two witnesses,

namely, K.Lakshamana Rao (PW 13) and Dr. K.Vishnupriya Devi

( PW 10 ).

5. We are conscious of the fact that the trial court

and the High Court accepted the evidence of Dr.

K.Lakshamana Rao (PW 13) and Dr. K.Vishnupriya Devi (PW 10)

and held that the dying declaration Ex.P-14 is a true and

voluntary and was made by the injured while in a fit state

of mind and free from any tutoring or prompting.

6. The original dying declaration of Smt. Venkata

Ramana was recorded in vernacular (Telugu) and during the

course of hearing, an admitted translation thereof was

produced before us. Since the conviction and sentence is

solely based upon the dying declaration, we deem it proper

to reproduce the same:- DYING DECLARATION

Declaration of Paparabaka Venkata Ramana, W/o Srinu,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

Ravinder Nagar, resident of Tenali village, Taluk-District

recorded by me in the presence of Duty Doctor Sri Dr.

Vishnu Priya of Government Hospital, Tenali.

Received a requisition to record a dying declaration

from the Medical Officer, Government Hospital, Tenali at

1.57 p.m. and at once I proceeded to the Hospital and

reached the same at 2.20 p.m. on 04.03.1994.

I send away all persons from the patients room except

the Medical attendants with a view to secure privacy. I put

the following single questions to the declarant to elicit

answers from him with a view to know her state of mind.

Q: What is your name? A: Ramana-Venkata Ramana.

Q: What is your Fathers/Husbands name? A: Srinu. Q:

Which village do you belong to? A: Tenali. Q: Do you

know where you are? A: I am in the hospital. Q: Do you

know that I am the Magistrate? If not then un derstand that

I am the Magistrate? A: I was told so. I came to know.

Q: Can you make the statement? A: Yes, I will tell.

On the basis of answers elicited from the declarant to

the above questions I am satisfied that she is in a fit

disposing state of mind to make a declaration.

Q: What happened to you? A: Venkateswarlu Boduru

and Boduru Sashi are wife and husband. Parambaka Rosamma my

grand mother poured kerosene on me. I also poured kerosene

on myself. They have burnt me with a lighted matchstick.

They poured water.

Q: When, where and what happened-give details. A:

Around 12.30 p.m. in the afternoon, Venkateswarlu and

Shashi came into my house with an electric tester used in

electric repairs, threatening to stab. Venkateswarlu came

and poked me on the chest. Shashi beat me. Both beat me.

Rosamma abused me and told me to leave the house. Everyday

she used to get into same sort of quarrel. She also made

others to beat me. Venkateswarlu is my grandmothers

sisters son. Shashi is his wife. They live in our house.

Both Shashi and Venkateswarlu poured kerosene on me.

They threw lighted matchstick on me. My grandmother

instigated them to burn me. Everything was done at her

instance. Kerosene was poured on me and when lit, I went in

flames. Venkateswarlu poured water. My husband was not

there. He had gone to work in the steel company. They say

that I wanted to live separately. Due to this, my husband

beat me yesterday afternoon. All of them did not want us to

live separately. I have not taken any food for days. My

grandmother did not come to my rescue. I was married in

1990 when cyclone had come. I have two children. Both are

daughters. My husband is my maternal uncle. My grandmother

disliked me. Since the day of our marriage Venkateswarlu

and his wife are living with us.

Q: Do you have anything further to add? A: Nothing.

My children were not present in the house, they had gone

out. There is nothing more. They used to instigate my

husband to beat me. Venkateswarlu is engaged in putting up

tents.

Q: Would you like to put thumb impression or

signatures? A: I will put thumb impression.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

Certified that the patient is in consciousness state

and has sound of mind to give her declaration. She@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

understood about the contents of her dying declaration given@@

JJJJJJJJJJ

before me.

Certified that the contents of dying declaration of

the deponent have been read over and explained to her in

Telugu and she admitted that the contents of dying

declaration are to be true and correct.

Certified that except myself and duty Doctor no others

were present at the patient-deponent at the time of

recording this statement from her.

Closed the proceedings at 2.55 p.m. on 04.03.1994.

Sd/- K.Lakshmana Rao, 04.03.1994.

Patient is conscious, while recording the statement.

Sd/-

Priya, K.Vishnu 04.03.1994 at 3.00 p.m.@@

IIIIIIII

7. After going through the evidence of K.Lakshamana

Rao (PW 13) and Dr. K.Vishnupriya Devi (PW 10) and on very

careful perusal of the said document, there are some

inherent defects and improbabilities which could not

persuade us to accept the said dying declaration as a

truthful and voluntary for the reasons set out hereinafter.

8. The main question is as to whether she was

conscious and was in a fit mental condition to make a

voluntary disclosure of the incident. Dr. K.Vishnupriya

Devi (PW 10) who was attached to Tenali Government Hospital

examined Smt. Venkata Ramana on 4th March, 1994 at 1.30

p.m. She then sent a requisition (Ex.P9) to the Magistrate

Shri K.Lakshamana Rao (PW 13) to record the dying

declaration of the injured. All that Dr. K.Vishnupriya

Devi has stated is that injured was conscious but she has

not deposed that the injured was in a fit state of mind to

make a statement. It has come on record that Smt. Venkata

Ramana had sustained 90% burn injuries. K.Lakshamana Rao

(PW 13) who recorded the dying declaration has made a note

in Ex.P-14-the dying declaration after putting some

preliminary questions to the injured and it reads as under:

- On the basis of answers elicited from the declarant to

the above questions I am satisfied that she is in a fit

disposing state of mind to make a declaration.

Thereafter, the learned Magistrate proceeded to record

the dying declaration. At the end, Dr. K.Vishnupriya Devi

(PW 10) has appended a certificate saying patient is

conscious while recording the statement. The question that

needs to be considered is as to whether the Magistrate could

have come to a definite conclusion that the injured was in a

fit state of mind to make a declaration in the absence of a

certificate by the doctor certifying the state of mind that

existed before recording the dying declaration? In our

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

opinion, in the absence of medical certification that the

injured was in a fit state of mind at the time of making the

declaration, it would be very much risky to accept the

subjective satisfaction of a Magistrate who opined that the

injured was in a fit state of mind at the time of making a

declaration. It is a case of circumstantial evidence and

only circumstance relied upon by the prosecution is dying

declaration.

9. It is true that the medical officer Dr.

K.Vishnupriya Devi (PW 10) at the end of the dying

declaration had certified patient is conscious while

recording the statement. It has come on record that the

injured Smt. Venkata Ramana had sustained extensive burn

injuries on her person. Dr. P.Koteswara Rao (PW 9) who

performed the post mortem stated that injured had sustained

90% burn injuries. In this case as stated earlier, the

prosecution case solely rested on the dying declaration. It

was, therefore, necessary for the prosecution to prove the

dying declaration being genuine, true and free from all

doubts and it was recorded when the injured was in a fit

state of mind. In our opinion, the certificate appended to

the dying declaration at the end by Dr. Smt. K.Vishnupriya

Devi (PW 10) did not comply with the requirement inasmuch as

she has failed to certify that the injured was in a fit

state of mind at the time of recording the dying

declaration. The certificate of the said expert at the end

only says that patient is conscious while recording the

statement. In view of these material omissions, it would

not be safe to accept the dying declaration (Ex.P-14) as

true and genuine and was made when the injured was in a fit

state of mind. From the judgments of the courts below, it

appears that this aspect was not kept in mind and

resultantly erred in accepting the said dying declaration

(Ex.P-14) as a true, genuine and was made when the injured

was in a fit state of mind. In medical science two stages

namely conscious and a fit state of mind are distinct and

are not synonymous. One may be conscious but not

necessarily in a fit state of mind. This distinction was

overlooked by the courts below.

10. Apart from these serious lacunas, mentioned

herein above, we find some more infirmities in the dying

declaration (Ex.P-14). In the dying declaration, Smt.

Venkata Ramana had stated that A-1 to A-3 poured the

kerosene on her and thereafter she also poured kerosene on

herself. Then she stated they have burnt me with a lighted

match stick. It is difficult to understand as to why she

poured the kerosene on herself. It has also come on the

record that on the earlier occasion, Smt. Venkata Ramana

(since deceased) had tried to commit suicide. In her dying

declaration (Ex.P-14) she had stated I had not taken food

for days. These circumstances again are pointer to the fact

that Smt. Venkata Ramana (since deceased) was disappointed

and frustrated in her married life. It is in these

circumstances, we find it difficult to accept the dying

declaration wherein all the three appellants alleged to have

committed the crime. It is difficult to understand as to

why three persons poured the kerosene and again all the

three persons burnt her with a lighted matchstick. The

above statements in the dying declaration raises a

reasonable doubt as to whether she was in a fit disposing

state of mind at the time when the dying declaration was

recorded.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

11. The incident in question occurred in a thatched

hut. There is nothing to indicate in the dying declaration

that Smt. Venkata Ramana (since deceased) was held by any

of these appellants and/or she was prevented from running

out of the hut or prevented from raising the shouts.

Several huts were situated adjacent to each other. There

was sufficient opportunity and time to the injured to escape

from the hut and also to raise shrieks. This we are saying

so after taking into account the sequence and the time

factor, which has been narrated, in the dying declaration.

The conduct of A-3 is also relevant as he tried to

extinguish the fire by putting water.

12. It is unfortunate for the prosecution that the

parents of the deceased as well as other close relatives

have turned hostile. A-1 is although a mother in law, also

happened to be the real grand mother of the victim. A-2 is

the daughter of A-1 and also happened to be sister of mother

of the deceased. As stated earlier, there were number of

huts

around the hut in question but nobody has come forward

to support the prosecution. There is also no evidence on

record to indicate that Smt. Venkata Ramana (since

deceased) was meted out any ill treatment or there was any

dowry demand. The only grievance made in the dying

declaration was that she wanted to live separately but her

husband was not prepared and on that score, the husband

(acquitted) had beaten her in the after-noon on the previous

day. It was then stated therein that her grand mother

disliked her. These statements in the dying declaration, in

our opinion, are not sufficient to substantiate the

prosecution case that Smt. Venkata Ramana (since deceased)

was meted out with ill treatment, an offence punishable

under Section 498-A of the Indian Penal Code.

13. We are thus unable to share the view and

reasoning given by the courts below. Consequently, we are

unable to uphold the conviction and sentence inflicted upon

A-1, A-2 and A-3 by the courts below. The conviction and

sentence of each of A-1, A-2 and A-3 is accordingly quashed

and set aside.

14. In the result, the appeal is allowed. The order

of conviction and sentence dated 17th June, 1996 passed by

the Second Addl. Sessions Judge, Guntur and on appeal

confirmed by the High Court of Andhra Pradesh vide its

judgment and order 26th March, 1997 are quashed and set

aside and the appellants (A-1 to A-3) are acquitted of all

the charges. The appellants be set at liberty forth with,

if not required in any other case. It appears that the

first appellant was ordered to be released on bail by this

Court vide order dated 18th January, 1999. If she is

released on bail, her bailbond to stand cancelled.