REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.514 OF 2010

CHIRRA SHIVRAJ .....APPELLANT.

        VERSUS

STATE OF  ANDHRA PRADESH .....RESPONDENT

J U D G M E N T

ANIL R. DAVE, J.

1) Being aggrieved by the Judgment and order dated  

3rd July, 2009, passed in Criminal Appeal No.579 of 2004 by  

the  Andhra  Pradesh  High  Court,  confirming  the  order  of  

conviction passed by the trial  court,  this appeal  has been  

filed  by the  appellant  who  has  been convicted  under  the  

provisions of Section 304 Part II of the Indian Penal Code  

and has been sentenced to undergo simple imprisonment for  

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five years.  The case of the prosecution in a nut shell is as  

under.

2) Chirra  Shantha  (the  deceased)   had  strained  

family relations with her husband’s brother,  the appellant.  

There  was  a  family  dispute  with  regard  to  a  property  

wherein the husband of the deceased and the appellant were  

residing  and  the  appellant  wanted  his  brother  

Nagabhushanam to leave the property.  It is alleged that the  

appellant used to regularly abuse the deceased and on 21st  

April, 1999, around 1.30 p.m., he had abused the deceased  

to such an extent that the deceased was fed up with the  

abusive language and so as to get rid of the appellant for  

the  time  being,   she  had  poured  kerosene  on  herself,  

believing that the appellant would go away because of her  

pouring  kerosene  on  herself  but  while  using  abusive  

language,  the  appellant  lit  his  cigarette  and  threw  the  

lighted match stick on the deceased.  As a result thereof,  

the deceased was in flames and the appellant left the place  

by further abusing her and telling that she should die.

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3) At the time when the deceased was in flames,  her  

husband,  Nagabhushanam arrived and upon seeing his wife  

in flames,  he immediately took her to the Government Civil  

Hospital,  Nizamabad.   Upon  police  being  informed,  R.  

Gangaram, Assistant Sub Inspector (P.W.11) rushed to the  

hospital and recorded the statement of the deceased.  FIR  

No.46 of 1999 was filed on the basis of the statement made  

by the deceased  against the appellant for commission of an  

offence under Section 307 of IPC.  Looking to the nature of  

burn  injuries  suffered  by  the  deceased,   her  dying  

declaration was recorded by Mr. Narsimha Chary, First Class  

Judicial  Magistrate  (Special  Mobile  Court),  Nizamabad  

(P.W.10) around 8 p.m.  The deceased specifically stated in  

the said statement that  she  was  being  abused  by  the  

appellant  and  on  that  day  also,  as  usual,  when  she  was  

being  abused,   she  poured  kerosene  on  herself  and  

thereafter the appellant had thrown a lighted match stick on  

her,   because  of  which  she  was  in  flames  and  she  was  

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severely  burnt  and  her  husband  Nagabhushanam  had  

brought her to the hospital.   

4) Because  of  the  burn  injuries,  the  deceased  

suffered from septicemia and as a result thereof she died on  

1st August, 1999.   The said fact was brought to the notice of  

the authorities by the husband of the deceased.  The said  

information  was  recorded  as  FIR  No.152  of  1999  on  2nd  

August, 1999.  As a result of the death of the deceased,  the  

appellant was also charged under Section 302 of the IPC.  At  

the time of the trial,  most of the witnesses, who are family  

members of the deceased as well as the appellant, turned  

hostile.   However,  on  the  basis  of  the  dying  declaration  

(Ext.P.12) recorded on 21st April, 1999, which supported the  

contents of the FIR filed by the complainant, the trial court  

convicted  the  appellant  for  the  offence  punishable  under  

Section 304 Part II of the IPC and sentenced the appellant  

to undergo simple imprisonment for five years.

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5) Being  aggrieved  by  the  order  of  conviction,  the  

appellant filed Criminal Appeal No.579 of 2004, before the  

High Court of Andhra Pradesh.  After hearing the concerned  

counsel  and  upon  perusal  of  the  record,  the  High  Court  

confirmed the order of conviction passed by the trial court  

by the impugned order and the said order of the High Court  

has been challenged in this appeal.

6) Mr. A.D.N. Rao, learned counsel appearing for the  

appellant  mainly  submitted  that  the  trial  court  had  

substantially erred in convicting the appellant only on the  

basis of the dying declaration.   He   submitted   that  except

the dying declaration, there was no other evidence, and to  

convict a person solely on the basis of a dying declaration  

would be neither just nor legal.

7) He also submitted that the case of the prosecution  

was based on the second FIR bearing No.152/99, which was  

filed on 2nd August, 1999,  upon the death of the deceased  

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on 1st August,1999.   He submitted that there could not have  

been a second FIR.  According to him,  investigation was  

made  under  the  first  FIR  and  ultimately  the  order  of  

conviction was passed in pursuance of the second FIR, which  

is bad in law.   He submitted that if filing of the second FIR  

is permitted,  the sanctity of the  first FIR would be lost and,  

therefore,  the second FIR ought not to have been filed and  

as the order of conviction was passed in pursuance of the  

second FIR,  the order of conviction is bad and it deserves to  

be quashed and set aside.

8) The learned counsel  appearing  for  the  appellant  

relied upon the Judgment delivered in  T.T. Antony etc. v.  

State  of  Kerala  and  others, 2001(6)  SCC  181,  to  

substantiate his case to the effect that there can not be a  

second FIR.

9) On the other hand,  the learned counsel appearing  

for the prosecution submitted that the order of conviction is  

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just and proper and she drew our attention to the fact that  

the dying declaration was supporting the complaint, which  

had been filed on the same day, and there was nothing to  

doubt the dying declaration.  According to her, the courts  

below had rightly relied upon the said dying declaration for  

convicting the appellant.   She also submitted that  all  the  

witnesses were family members and,  therefore, they did not  

support  the  prosecution  case  when  they  were  examined.  

She  also  submitted  that  merely  because  family  members  

who were  interested  in  supporting  the  appellant  and  had  

turned hostile, would not make the case of the prosecution  

weak,  especially when no infirmity could be found by the  

courts below in the dying declaration, which clearly indicated  

that the appellant had committed the offence.

10) We have heard the learned counsel and perused  

the relevant record.

11) In our opinion, the order passed by the High Court  

confirming the order of conviction passed by the trial court  

cannot be said to be bad in law.  In our opinion, the trial  

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court  had  duly  considered  the  fact  that  the  dying  

declaration  was  trustworthy  and  reliable  and  it  was  

supported by the complaint  and as a result  thereof,   the  

order of conviction was also confirmed by the High Court  in  

the appeal.

12) If dying declaration is trustworthy and if it can be  

shown  that  the  person  making  the  statement  was  not  

influenced by any exterior factor and made the statement  

which  was  duly  recorded,   it  can  be  made  basis  for  

conviction.   In  the  instant  case,  immediately  after  the  

incident,  the  deceased  was  taken  to  the  Government  

Hospital,  Nizamabad  and  upon  getting  information  with  

regard  to  the  offence,  the  ASI  had  rushed  to  the  

Government Hospital,   Nizamabad and  the deceased had  

made  her  statement  before  him  and  thereafter  she  had  

made her dying declaration before a judicial officer  around  

8 p.m.  The said statement was scrupulously  recorded by  

the  Judicial  Officer  who  had  found  the  deceased  to  be  

conscious and fit  to make statement.   Very recently,  this  

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Court had examined whether a dying declaration can be the  

sole basis for conviction.  After examining several judgments  

on the subject, this Court had observed in Puran Chand v.  

State of Haryana, 2010 (6) SCC 566, as under:

“15. The  courts  below  have  to  be  extremely  careful when they deal with a dying declaration as  the maker thereof is not available for the cross- examination which poses a great difficulty to the  accused person.  A mechanical approach in relying  upon a dying declaration just because it is there is  extremely dangerous.  The court has to examine a  dying declaration scrupulously with a microscopic  eye to find out whether the dying declaration is  voluntary, truthful,  made in a conscious state of  mind and without being influenced by the relatives  present or by the investigating agency who may  be  interested  in  the  success  of  investigation  or  which may be negligent while recording the dying  declaration………

18. The  law  is  now  well  settled  that  a  dying  declaration which has been found to be voluntary  and truthful and which is free from any doubt can  be the sole basis for convicting the accused.  ……… …………….”

13) Looking  to  the  law  laid  down  by  this  Court  as  

stated hereinabove and on perusal of the record we find that  

in the instant case there was no doubt with regard to the  

truthfulness of the dying declaration and, therefore, in our  

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opinion, it  cannot be said that on the sole basis of  dying  

declaration  the  order  of  conviction  could  not  have  been  

passed.

14) So far as the submission with regard to the filing  

of  second  FIR  is  concerned,  in  our  opinion,  the  said  

submission cannot be accepted.  First Information Report is  

a  report  which  gives  first  information  with  regard  to  any  

offence.   There cannot be second FIR in respect of the same  

offence/event because whenever any further information is  

received  by  the  investigating  agency,  it  is  always  in  

furtherance of the First Information Report.  Learned counsel  

appearing  for  the  accused  relied  upon  the  judgment  

delivered in the case of  T.T. Antony (supra).   This Court  

had examined the said Judgment in the case of Babubhai v.  

State  of  Gujarat  &  Others on  26th August,  2010,  in  

Criminal Appeal No.1599 of 2010 (arising out of SLP(Crl.)  

No.2077 of 2010.  In the said Judgment, after considering  

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T.T.  Antony’s (supra)  Judgment,  this  Court  observed  in  

para 13  as under:

13. “…….the investigating agency has to proceed  only  on  the  information  about  commission  of  a  cognizable  offence  which  is  first  entered  in  the  Police Station diary by the Officer In-charge under  Section  158  of  the  Code of  Criminal  Procedure,  1973, (hereinafter called the Cr.P.C.) and all other  subsequent  information  would  be  covered  by  Section 162 of the Cr.P.C. for the reason that it is  the duty of the Investigating Officer not merely to  investigate the cognizable offence reported in the  FIR  but  also  other  connected  offences  found  to  have been committed in the course of the same  transaction  or  the  same  occurrence  and  the  Investigating  Officer  has  to  file  one  or  more  reports  under  Section  173  of  the  Cr.P.C.   Even  after  submission  of  the  report  under  Section  173(2) of the Cr.P.C., if the Investigating Officer  comes across any further information pertaining to  the  same  incident,  he  can  make  further  investigation, ……….”

15) In  the  case  in  hand,   the  first  FIR,   i.e.  FIR  

No.46/99  was  recorded  on  21st April,  1999,  the  date  on  

which  the  offence  had  taken  place.   On  that  day,  R.  

Gangaram, Assistant Sub Inspector (P.W.11) had recorded  

the  statement  made  by  the  deceased,   when  she  was  

admitted to the Government Civil Hospital, Nizamabad and  

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on the basis  of  the said statement the aforesaid FIR was  

recorded.  At the relevant time,  the deceased had received  

serious  burn  injuries  and,   therefore,  offence  under  the  

provisions of Section 307 of the IPC had been registered.  

Subsequently,  the  deceased   suffered  from  septicemia,  

which was caused due to the burn injuries and as a result  

thereof she expired on 1st August, 1999.   The said fact was  

reported  by  the  husband  of  the  deceased  to  the  police  

authorities and thereupon the said fact was recorded as FIR  

No.152/99  on  2nd August,  1999.   Thus,  by  virtue  of  the  

second FIR,  further development which had taken place had  

been recorded.  The said development was with regard to  

the death of the deceased and, therefore, an offence under  

the provisions of Section 302 of the IPC had been registered.  

16) If  one  looks  at  the  facts  of  the  case  and  both  

information given to the authorities, it is clear that in fact  

FIR No.46/99  was recorded on the basis of the statement  

made by the deceased when the deceased was alive and  

upon her death,  which had nexus with the injuries, further  

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information was given on 2nd August,  1999, and that was  

recorded  as  FIR  No.152/99.   In  our  opinion,  it  was  not  

necessary to record another FIR as the death was result of  

septicemia which was due to the burn injuries.   

17) Looking to the facts of the present case, in our  

opinion,  in  fact  the  second  FIR  was  nothing  but  a  

consequence  of  the  event  which  had  taken  place  on  21st  

April, 1999.  In the circumstances,  the contents of the so  

called second FIR being  FIR No.152/99, could have been  

incorporated  in  the  police  diary  as  a  result  of  further  

information  or  event  which  had  been  taken  place  in  

pursuance of  the first  offence,   which had been recorded  

under FIR No.46/99.

 18) It is true that the second FIR being FIR no.152/99,  

had been lodged on 2nd August,  1999, when the report with  

regard to the death of  the deceased was reported.  As a  

mater of fact, in our opinion, it was not necessary to note  

the same as a new FIR but simply because the S.H.O made  

a mistake by recording it as a fresh FIR, it  would not make  

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the  case  of  the  prosecution  weak  especially  when  no  

prejudice  had been caused to  the appellant  or  any other  

person because of the aforestated further information with  

regard  to  the  death  being  recorded  as  a  new FIR.   The  

submission made by the learned counsel appearing for the  

appellant was to the effect that by adopting such a method,  

the prosecution can involve someone wrongly in the offence  

and,   therefore,   such  a  course  should  not  have  been  

adopted  and  as  it  was  adopted  by  the  prosecution,  the  

appellant  must get benefit of such a mistake by getting an  

order of acquittal.   We do not agree with the aforestated  

submission for the reason that there is no allegation to  the  

effect  that  the  contents  of  second  FIR   are  incorrect  or  

malicious or there was any oblique  motive behind giving  

further information.  The information which was given to the  

Authorities  was  only  with  regard  to  the  death  of  the  

deceased which resulted due to septicemia and septicemia  

was only on account of the burn injuries  suffered by the  

deceased.  Be that as it may, it is a fact that there was no  

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fresh  investigation  in  pursuance  of  the  second  FIR  and,  

therefore, even the judgment delivered in the case of  T.T.  

Antony (supra) would render no help to the accused.

19) Even the learned counsel for the appellant could  

not show that the information with regard to the death of  

the deceased,  which was recorded as second FIR no.152/99  

caused any prejudice  to  the accused.   In  the aforestated  

circumstances, we do not agree with the submission made  

by the learned counsel for the appellant that merely because  

second FIR was filed, the entire investigation was defective  

and that should result into acquittal of the accused.  

20) We do not find any substance in the submissions  

made on behalf of the appellant and,  therefore,  the appeal  

is dismissed.

................................... .....J.        ( P. SATHASIVAM)

................................... ......J

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           (ANIL R. DAVE)

New Delhi November 26,  2010

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