Judgment:
Neelam Sanjiva Reddy, J.
1. This appeal is filed by the State against the acquittal of the two accused under Section 302, IPC by the Additional Sessions Judge, Warangal made in S.C. No. 202/92.
2. The charge against the accused is that on 15-9-1992 at about 1.00 p.m. in the house of the deceased B. N. Vaidehi at Central Excise Colony, the accused alleged to have set fire to the deceased as a result of which she succumbed to the burn injuries on 16-9-1992 at M.G.M. Hospital, Warangal.
3. The prosecution case in brief is that A-1 is the wife of A-2. A-1 was working in LIC office in Warangal and the second accused was working in the municipal office at the same place. The deceased was also working in the LIC office in Warangal. P.W. 2 (Amanena Laxmaiah) is the father of the deceased. P.W. 3 (Basani Dileep Kumar) is the second son of the deceased. P.W. 1 (Peddi Venkata Narayana) who was councillor, was residing in the ground floor portion of the deceased as a tenant. The husband of the deceased died about one year prior to the occurrence. It is said that A-2 was regularly visiting the house of the deceased and had illicit intimacy with her. On 15-9-1992, the B.J.P. had called for Bandh. P.W. 1 was in the house and at about 1.00 p.m. A-2 came on a scooter, went upstairs of the house of the deceased. After some time, A-1 came on luna and went upstairs. It is said that after A-2 went into the house of the deceased, she sent P.W. 3 to fetch bread by giving him Rs. 10/-. After about one hour, P.W. 1 heard cries and shrieks from the portion of the deceased. He came out and saw smoke coming out from the bathroom of the house of the deceased. He went upstairs and pushed the door and saw the deceased fallen with burn injuries. A-1 and A-2, who were there, were trying to extinguish the fire. P.W. 1 questioned the deceased as to what happened and the deceased told him that A-1 and A-2 poured kerosene on her and lighted a match stick. P.W. 1 called for an auto and took the deceased to M.G.M. Hospital, Warangal. P.W. 1 sent information to the parents of the deceased, who reside in labour colony, Warangal. The deceased when enquired by the doctor as to how she sustained quire burns, told him that while preparing tea, she caught fire due to the burst of the stove. At that time, PW. 1 and mother of the deceased were present. The father of the deceased (PW. 2) also enquired with the deceased as to how she received burn injuries and she told that when she had gone into the kitchen to prepare tea for A-1 and A-2, who came to her house, A-1 poured kerosene and set fire. PW. 3, son of the deceased says that when he questioned his mother, she told that while she had gone to the kitchen to prepare tea, A-1 and A-2 poured kerosene and setfire to ber. She went to the bathroom to extinguish the fire. PW. 12 (Md. Saleemuddin) Cl of Police Subedari, received a telephonic message from PW. 1 from the M.G.M. Hospital and recorded Ex. P-1 complaint of PW. 1 at 3.30 p.m. He made an endorsement on Ex. P-1 and gave it to PW. 10 (R. Sanjeevaiah) A.S.I., Subedari, to register a case under Section 307. IPC and to issue FIR. He gave Ex. P-17 requisition to PW 9 (M. Laxminarayana), I Additional Munsif Magistrate, Warangal, to come and record the dying declaration. PW. 9 proceeded to the hospital at about 4.00 p.m. and recorded Ex. P-15 dying declaration of the deceased. In that statement, the deceased stated that A-1 came to ber house and when she was preparing tea, she came from behind, poured kerosene and burnt her.
4. PW. 10, who received Ex. P-1, registered a case in Cr. No. 117/92 under Section 307, IPC and issued P-17 FIR. The deceased died at 6.40 a.m. on 16-2-1992. PW. 11 (D. Ashok), Cl of Police, Hanmakonda, held inquest over the dead body from 11.00 a.m. to 2.00 p.m. on 16-2-1992 in the presence of mediators including PW. 6 (Bandela Narasiah). Ex. P-12 is the inquest report. Thereafter, the dead body was sent for autopsy. PW. 8 (Dr. M. Shanker), Asst. Professor, K.C.M., Warangal, conducted autopsy over the dead body and issued P-14 post-mortem certificate. According to him, the cause of death was due to shock and burn injuries. PW. 11 arrested the accused at 8.20 p.m. on 19-9-1992. PW. 4 (Dr. Govardhan), Asst. Civil Surgeon, M.G.M. Hospital, Warangal, examined the accused and issued Ex. P-2 and P-3 wound certificate which show that both the accused had burn injuries. According to him, the injuries are likely to be sustained while extinguishing the fire.
5. After completion of investigation, PW. 11 laid charge-sheet in the court of IV Additional Judicial First Class Magistrate, Warangal, who took the case on file in PRC No. 3/93. The learned Magistrate committed the case to the Sessions Court as the offences alleged to have been committed by the accused are exclusively triable by a sessions Court. The learned Sessions Judge took it on file in S.C. No. 202/93 and made over to Additional Sessions Judge for disposal according to law.
6. The learned Additional Sessions Judge, after hearing both sides, framed a charge under Section 302, 1PC against the accused, to which they pleaded not guilty.
7. Prosecution examined PWs. 1 to 12 and marked Exs. P1 to P21 and MOS 1 to 8 to establish it's case. The accused, when examined under Section 313, Cr.P.C., denied the prosecution evidence as false and stated that the case was foisted against them. They did not adduce any evidence except marking Ex. D-1 medical record of the deceased. Learned Additional Sessions Judge, after considering the evidence on record, acquitted the accused on the ground that the dying declaration is not consistent. Before the doctor, the deceased stated that she accidentally caught fire and this fact Was borne by the evidence of PW. 1 and the entry in Ex. D 1. In Ex. P-15, she implicated A-1 alone. PW. 1 and Pw. 3 stated that the deceased named A-1 and A-2. PW. 2 stated that the deceased implicated A-1 alone. Having regard to the fact that there is no consistency in the dying declarations, learned Additional Sessions Judge, Warangal, acquitted the accused.
8. Smt. C. Susheela Devi, learned Public Prosecutor contended that the learned Additional Sessions Judge erred in not accepting the dying declarations and that inconsistencies found in the dying declarations do not affect the veracity and creditworthiness of the said statements.
9. Sri C. Padmanabha Reddy, Sr. counsel appearing for the accused-respondents, submitted that the dying declarations are materially inconsistent with each other. The alleged statements of the deceased against the the accused are an after thought and probably at the instigation of somebody. The learned Additional Sessions Judge has been quite right in acquitting the Accused of the charge framed against them and the appeal is liable to be dismissed.
10. This case entirely depends on the dying declarations of the deceased. The doctor, who made entry in Ex. D-1 has no animus against anybody. According to the entry in Ex. D-1, it is quite clear that the deceased caught fire accidentally and sustained burns leading to her death. Ex. P-15 shows that she implicated A-1 only in the crime. From this, it can be inferred that PWs. 1 to 3 who testified about the dying declarations, did not speak truth and it was quite likely that at their instance, the deceased implicated A-1 in Ex. P-15. There is no corroborating evidence pointing to the culpability of the accused. In the absence of corroborating evidence and in view of the doubtful nature of the dying declarations, we are of the view that the learned Additional Sessions Judge was right in rejecting the dying declarations.
11. Where the dying declarations are not consistent, the Supreme Court held that even if the declarations are consistent in respect of particular accused, the accused is entitled to be acquitted. In Thurukanni Pompiah v. State of Mysore, AIR 1975 SC 939 : (1965 (2) Cri LJ 31) it is observed that :-
'A dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subject to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court, may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroborations.'
12. In State of Gujarat v. Khumansingh Karsan Singh, : AIR1994SC1641 , it is observed that :
'............ There is no doubt that there is inconsistency between the first dying declaration and the subsequent two dying declarations which betrays the possibility of her being amenable to tutoring. It is quite clear the relationship was strained due to the bad blood between her and her mother-in-law. The possibility of false involvement could not be ruled out and the High Court, therefore, thought that in the absence of corroborative evidence, it is unsafe to rely mainly on the inconsistent dying declarations ............'
13. In Chakiri Saidulu v. State of A.P., 1994 APLJ (Cri) 516 : (1994 Cri LJ 3782) it is observed that :
'........... The consistency must be with regard to the assailants and the manner in which the incident had happened. It is impossible to hold that in a case where there are more than one dying declaration, the Court has to compare all the dying declarations in order to assess the extent of incrimination.'
14. In view of the above factual and legal position, we do not think that this case demands our interference. Hence, the appeal fails and is dismissed. The bail bonds to stand cancelled.
15. Appeal dismissed.