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Friday, January 9, 2015

CRIMINAL APPEAL NO. 1381 OF 2011 Mallella Shyamsunder … Appellant (s) Versus State of Andhra Pradesh … Respondent (s)2014-S.C. OCT.MONTH.



                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION



                      CRIMINAL APPEAL NO. 1381 OF 2011

Mallella Shyamsunder                               … Appellant (s)

                                   Versus

State of Andhra Pradesh                            … Respondent (s)


                               J U D G M E N T


KURIAN, J.:


Nemo moriturus praesumitur mentire literally means no one at  the  point  of
death is presumed to lie. Nobody normally  may  lie  and  die  for  fear  of
meeting his maker.
Acceptability and reliability of statement made by a person who is about  to
die, which statement, in common parlance, is  known  as  dying  declaration,
has been the subject matter of several  reported  decisions  of  this  Court
and, therefore, it is not necessary to add one more to  the  same.  However,
for the purpose of understanding the first principles, we shall refer  to  a
Constitution Bench decision in Laxman v. State  of  Maharashtra[1],  wherein
at paragraph-3, it is held as follows:

“3. The juristic theory regarding acceptability of a  dying  declaration  is
that such declaration is made in extremity, when the party is at  the  point
of death and when every hope of this world is gone,  when  every  motive  to
falsehood is  silenced,  and  the  man  is  induced  by  the  most  powerful
consideration to speak only  the  truth.  Notwithstanding  the  same,  great
caution must be exercised in considering the weight  to  be  given  to  this
species of evidence on account of the existence of many circumstances  which
may affect their truth. The situation in which a man is on the  deathbed  is
so solemn and serene, is the reason in law to accept  the  veracity  of  his
statement. It is for  this  reason  the  requirements  of  oath  and  cross-
examination are dispensed with. Since the accused has  no  power  of  cross-
examination, the courts insist that the dying declaration should be of  such
a nature as to inspire full confidence of the court in its truthfulness  and
correctness. The court, however, has always to be on guard to see  that  the
statement of the deceased  was  not  as  a  result  of  either  tutoring  or
prompting or a product of imagination. The court also  must  further  decide
that the deceased was in a fit state of mind  and  had  the  opportunity  to
observe and identify the assailant. …”

Appellant is the first accused in Sessions Case No. 197 of 2002 on the  file
of the Court of  Second  Additional  Sessions  Judge,  Mahabubnagar,  Andhra
Pradesh. He was sentenced to undergo rigorous imprisonment  for  life  under
Section 302 of the Indian Penal Code (45 of 1860) (hereinafter  referred  to
as ‘IPC’). He was also sentenced to undergo rigorous  imprisonment  for  one
year under Section 498A of IPC. The second accused who is the mother of  the
first accused, was convicted under Section 498A  of  IPC  and  sentenced  to
undergo one year rigorous imprisonment.  The  High  Court,  however,  taking
note mainly of the age of the second  accused,  maintaining  the  conviction
under Section 498A of IPC,  reduced  the  sentence  to  the  period  already
undergone.
The victim, Smt. Kalyani, since deceased, was married to  the  appellant  on
26.04.2000. The allegation is that on account of non-payment of  balance  of
the promised dowry, she was being ill  treated  and  harassed  by  both  the
accused. On 23.08.2001, the appellant sent her out of the  matrimonial  home
demanding the balance amount of dowry. However, PW-1-mother of the  deceased
took her to the house of the accused  and  gave  him  Rs.1,000/-,  gold  ear
studs, gold ring and returned; but  the  second  accused  took  the  postela
chain (mangalsutra) of the deceased and when PW-1 requested  to  return  the
same, he replied that the same would be returned when PW-1 pays the  balance
of the dowry. On  31.08.2001,  PW-1  received  a  telephone  call  from  the
appellant to the effect that the deceased had set fire to  herself  and  she
was admitted in Srinivasa Hospital, Nagar Kurnool. In the hospital,  PWs-  1
and 2 were told by the deceased that the appellant had beaten  her  and  set
her on fire after  pouring  kerosene.  At  about  10.35  a.m.,  PW-10,  Sub-
Inspector of Police visited the hospital and recorded the statement  of  the
deceased marked as Exhibit-P5 and, on the basis of it, he  registered  Crime
No. 104 of 2001 and  he  also  sent  Exhibit-P-6-requisition  for  JFCM  for
recording dying  declaration.  On  31.08.2001  itself,  PW-13,  JFCM,  Nagar
Kurnool visited the hospital and recorded the dying  declaration  marked  as
Exhibit-P10.  Thereafter,  the  deceased  was  shifted  to  Osmania  General
Hospital. However, she died  on  09.09.2001.  PW-10,  who  investigated  the
case, recorded the statement of PWs- 1 to 4 and others,  visited  the  scene
of  offence,  prepared  scene  observation  report-Exhibit-P7,  seized   the
kerosene tin(MO-1), the  match  box-(MO-2)  and  the  burnt  towel  and  the
       saree-(MOs-3 and 4,  respectively)  and  got  the  scene  of  offence
photographed. PW-11-Assistant Professor,  Department  of  Medicine,  Osmania
Medical College, conducted the autopsy and opined that the  cause  of  death
was due to 70% burns on the  body.  The  post-mortem  report  is  marked  as
Exhibit-P8.
The accused took a defence of total denial.
On behalf of the prosecution, PWs-1 to 13 were examined, Exhibits-P1 to  P10
were marked apart from MOs-1 to 4.
The High Court,  after  elaborately  considering  the  evidence  on  record,
maintained the conviction and sentence  of  the  appellant.  However,  while
maintaining the conviction of the second accused under Section 498A of  IPC,
the Court reduced the sentence to the period already undergone. There is  no
appeal by the second accused.
Having regard to the evidence  on  record,  the  High  Court  confirmed  the
finding of the Sessions Court that it is a case of homicide. For  connecting
the appellant solely to the homicide, mainly Exhibits-P5  and  P10  –  dying
declarations were relied on in addition to the oral evidence of PWs-1 to  4.

There is no eye-witness. However, according to  PW-4,  the  landlord,  where
the appellant and his deceased wife  stayed  as   tenants  in  the  adjacent
room, has given evidence to the effect that on 31.08.2001,  at  about  08.00
or 08.30 a.m., he heard a galata (quarrel) at  the  residence  of  appellant
and some time later, he saw the deceased coming out in flames. The  deceased
tried to douse the fire by pouring water on herself  and  the  accused  also
did the same. When he reprimanded the appellant, the  appellant  brought  an
autorickshaw and shifted her to the hospital. PW-1-mother of  the  deceased,
PW-2-son-in-law of  PW-1,  PW-3-neighbour  of  PW-2,  all  had  visited  the
deceased in the hospital and, according to them, the deceased had told  them
that the appellant had set her on fire on account of non-payment of  balance
dowry. However, PW-9-Dr. Narhari, working in Government Hospital, where  the
deceased was taken immediately after the burns and  who  administered  first
aid to the deceased, had a version that on his inquiry  from  the  deceased,
she had told him that the injuries were self-inflicted.
Exhibit-P5 is the first dying declaration recorded by the  Sub-Inspector  of
Police  based  on  which  the  First  Information  Report  was   registered.
According to her, on 30.08.2001  also,  there  was  a  quarrel  between  the
appellant and the deceased regarding non-payment of the  balance  dowry.  On
31.08.2001, at 08.30 a.m., when she tried to wake the appellant up, he  beat
her with  chappal  on  her  back  and,  immediately  thereafter,  he  poured
kerosene on her and set her on fire. Exhibit-P10 is  the  dying  declaration
recorded by JFCM, Nagar Kurnool at around 01.25  p.m.  on  31.08.2001.  With
regard to the incident, there is no major inconsistency.
 Learned Counsel for the appellant submits that the case is  entirely  based
on circumstantial evidence and there is no direct evidence  to  connect  the
appellant. It is not necessary to refer in extenso to this argument for  the
following reasons:
a.    Exhibits-P5 and P10  –  dying  declarations  are  confidence  bearing,
truthful, consistent and credible. There was no room or chance for  tutoring
or  prompting.  Nor  is  there  a  case  that  it  is  the  product  of  her
imagination. Though no corroboration is necessary, yet,  there  is  evidence
of PWs-1 to 3 to whom also, the  deceased  is  said  to  have  narrated  the
incident. There is no serious attempt in defence to  shake  the  credibility
and reliability of the dying declarations.
b.    We have seen the scene mehazar and photograph of the scene.  It  is  a
small rented accommodation and the picture of the kitchen shows  that  there
was LPG gas connection and, therefore, it was not normally required to  keep
kerosene in such quantity.
c.    The post-mortem report refers to the following injuries:
“9. Injuries:
      Ante mortem dermo epidermal burns present over  lower  half  of  face,
neck, chest, upper third of abdomen, both upper  extremities,  both  thighs,
part of back of both legs and part of back of  trunk  amounting  to  70%  of
total body surface area.
      Skin peeled off at many places over burnt area and  peeled  off  areas
are red in colour.
      Part of the burns are infected.”
                                                         (Emphasis supplied)

            It is  very  significant  to  note  that  the  antemortem  dermo
epidermal burns are over lower half of face, neck and then down the body  to
the legs. If one is to pour kerosene on oneself,  it  is  the  normal  human
conduct to pour it over the head, and in any case, not to  pour  it  on  the
face sparing the head.
d.    The indifferent conduct of the appellant, as spoken about by     PW-4,
in not taking prompt action to move the deceased to the hospital is  also  a
situation to be taken note of.
e.    There was nobody else  in  the  house  and,  hence,  it  was  for  the
appellant to offer explanation as to the  cause  of  death.  His  theory  of
suicide, on the face of overwhelming evidence to the  contrary,  is  not  at
all acceptable.
f.    Only PW-9 has given a different version  regarding  the  injury  being
self-inflicted. His version cannot be believed at all in the  background  of
the overwhelming evidence we have discussed above and  particularly  in  the
background of the injuries noted in the post-mortem report.
Learned Counsel for the appellant  has  also  made  a  submission  that  the
charge be reduced to one under Section 304 Part II.
As rightly held by the Sessions Court and the High Court,  setting  fire  on
another person after pouring kerosene is an act likely  to  cause  death  of
such person. It is a matter of simple  and  common  knowledge  that  in  the
process, the victim is likely to suffer  death  on  account  of  the  burns.
Therefore, the offence  of  murder  is  complete  and,  hence,  we  have  no
hesitation in our mind in reaffirming the conviction of the appellant  under
Section 302 of IPC.
Hence, we find no merit in the  appeal  and  it  is  accordingly  dismissed.



  ..………………………J.                                                  (VIKRAMAJIT
                                                                        SEN)











                                                              ....……………………J.
                   (KURIAN JOSEPH)
New Delhi;
October 29, 2014.
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[1]
       (2002) 6 SCC 710

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                                                                  REPORTABLE


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