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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.