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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.

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

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

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

   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.