V. Bhaskara Rao, J.
1. This appeal arises from the judgment in S.C. No. 104/1993 on the file of Ist Additional Sessions Judge, Nellore, dated 15-3-1995, convicting both the appellants under S. 302 read with S. 34 of Indian Penal Code and sentencing them to imprisonment for life.
2. The facts giving rise to this appeal in brief are that appellant No. 2 (Vakati Penchaliah), is the father of appellant No. 1 (Vakati Lavakishore), P.W. 2 (Vakati Gopi Krishna) and the deceased (Vakati Madhusudhana Rao). P.W. 1 (Vakati Lakshmi Kamakshi) is the wife of the deceased. Some disputes arose between the deceased and his brothers as well as the father regarding partition of properties. That led to the filing of a partition suit OS. No. 33/1988 on the file of Subordinate Judge, Nellore by the deceased. The deceased took a house on rent in Karanala Street, Nellore town, and started living there along with his wife (P.W. 1) and he was running Madhu Fancy Shop. P.W. 2 was residing in the down stair portion of house bearing No. 22/215, which is a joint property, and the deceased was keeping some of his articles in the upstair portion of that house. Both the appellants were residing in another joint family house bearing No. 22-223. As the deceased was not in a position to bear the rent of his house, he requested P.W. 2 to allow him to stay in the upstair portion of the house bearing No. 22/215, but P.W. 2 did not agree. That led to an altercation between the deceased and P.W. 2 and both of them lodged complaints in One Town Police Station, Nellore. This happened on the afternoon of 19-11-1992. On the same day at 8 p.m. appellant No. 1 went to the shop of the deceased and told him that appellant No. 2 called him. Thereupon the deceased and his wife (P.W. 1) went to the house of the appellants.
The appellants asked the deceased to withdraw the partition suit, but he did not agree. Then the appellants threatened that they would kill the deceased. Appellant No. 1 brought a tin of kerosene from the house and doused the deceased in kerosene and then appellant No. 2 lit a match stick and set the deceased on flames. The deceased and P.W. 1 ran to Pedda Bazar crying loudly. P.W. 3 (Vakati Ramakrishna), a cousin of the deceased, brought a balnket and covered the body of the deceased and put off the flames. Then P.W. 2 and P.W. 4 (Ch. Ramakrishna Reddy) shifted him to Government Hospital, Nellore. P.W. 7 (Dr. B. Rajeswari) sent intimation to the police and IV Additional Judicial Magistrate of First Class, Nellore (P.W. 6), who proceeded to the hospital at about 9-15 p.m. and recorded the dying declaration of the deceased from 9-15 p.m. to 9-40 p.m. The deceased got discharged from the Govt. Hospital against the medical advice at about 9-45 p.m. and got himself admitted in a private Nursing Home by name Jayabharat Hospital, Nellore. H.C. 1180 (P.W. 9) visited the Government Hospital, but he did not find the deceased and thereupon he obtained a copy of the dying declaration from P.W. 6 and recorded the statement of the deceased at Jayabharat Hospital, Nellore, and handed over the same to Sub-Inspector of Police, I Town Police Station, Nellore (P.W. 13), who registered a case in Crime No. 185/1992 under S. 307 read with S. 34 of IPC. He visited the scene of offence and prepared a rough sketch of the scene in the presence of PW. 5 (Kanamarlapudi Koteswara Rao) and another. In the meantime the deceased was shifted to Kilpak Medical College Hospital, Madras, for better treatment. He was admitted there on 20-11-1992, but he succumbed to the burns on 24-11-1992. On receipt of death intimation, P.W. 13 altered the section of law to S. 302 read with S. 34 of IPC and proceeded to Madras. He held inquest over the dead body in the presence of P.W. 11 (Shaik Ibrahim) and two others and one Doctor A. N. Shanmugham conducted autopsy over the dead body and opined that the deceased would appear to have died due to complications of burn injuries.
3. The charge sheet was filed against both the appellants under S. 302 read with S. 34 of IPC in the Court of II Additional Judicial Magistrate of First Class, Nellore, and the same was registered as PRC. No. 8/1993. As the case is exclusively triable by the Court of Session, the Magistrate committed the same to the Court of Session, Nellore, where it is registered as Sessions Case No. 104/1993. The learned I Additional Sessions Judge, Nellore, framed a charge under S. 302 of IPC against both the accused, who pleaded not guilty and claimed to be tried. The prosecution examined P.Ws. 1 to 13 in support of its case and got Exs. P1 to P18 and P18(a) marked. Thereafter the appellants have been examined under S. 313 of CPC and all the incriminating pieces of evidence emerging from the testimony of P.Ws. 1 to 13 and other documents have been put to them, but they denied the same. Appellant No. 1 further stated that he went to his place of work Ayyappa Sanitaryware Shop at 3 p.m. on that day and he remained there till 9.30 p.m. writing accounts and while he was returning to his house, he was informed by somebody that the deceased burnt himself and he was admitted in the hospital, and his parents, on enquiry, told him that they do not know anything. Appellant No. 2 stated that Nagara Sankeerthana Party of Satya Sai started from the house in the early hours on 19-11-1992 i.e., at 4.30 p.m. and that he went to Satya Sai Sadan to attend Bhajan at about 5.45 p.m. and he was there till 7.30 p.m. and while he was returning to his house, he was informed by somebody that the deceased burnt himself and he was taken to the hospital. Thus, they pleaded alibi and they examined D.Ws. 1 to 6 in support of that plea and got Exs. D1 and D2 marked.
4. The learned I Additional Sessions Judge considered the entire evidence adduced by the prosecution as well as the defence and held that the prosecution has established the guilt of the appellants beyond all reasonable doubt and found them guilty of the offence under S. 302 of IPC. He disbelieved D.Ws. 1 to 6 and held that the plea of alibi cannot be accepted and on the other hand the evidence of P.W. 1, wife of the deceased, who is an eye witness and the dying declarations recorded by P.W. 6, Magistrate, and P.W. 9, Head Constable, are acceptable. Aggrieved by the above findings and the judgment convicting the appellants under S. 302 of IPC and sentencing them to undergo life imprisonment, this appeal is preferred.
5. The point for determination is whether the conviction of the appellants under S. 302 of IPC and the sentence of life imprisonment are sustainable.
6. Mr. C. Padmanabha Reddy, learned senior counsel, for the appellants firstly contended that the name of P.W. 1 is not mentioned in any of three dying declarations as the person who accompanied the deceased and in normal course P.W. 1 could not have accompanied the deceased as he went from the shop and hence her evidence is fit to be discarded. He then contended that there are three dying declarations viz., Exs. P2, P6 and P9 and that there are discrepancies therein in material particulars inasmuch as the name of appellant No. 2 is not mentioned in Ex. P2 and the testimony of P.W. 13, Investigating Officer, would go to show that the investigation disclosed that it was appellant No. 2, who poured kerosene and it was appellant No. 1 who lit the match stick. He also pointed out that the Doctor who was present at the time of recording dying declaration by Magistrate is not examined so as to show that the deceased was in a fit and disposing state of mind and the learned Magistrate (PW. 6) did not himself put any question so as to satisfy himself about the state of mind of the deceased. He also pointed out that there is no certificate of the Doctor under Ex. P9 dying declaration recorded by the Head Constable. In the above circumstances, it is urged that the conviction cannot be sustained on such dying declarations and he relied on a judgment reported in State of Gujarat v. Khumansingh Karsan Singh : AIR1994SC1641 and in K. R. Reddy v. Public Prosecutor, : 1976CriLJ1548 . He finally contended that the autopsy surgeon is not examined and hence the cause of death of the deceased is not established and moreover it can be said to be a case of sudden quarrel even if the case of the prosecution is accepted and hence the offence, if any, falls only under S. 304, Part-I of IPC and not under S. 302 of IPC.
7. On the other hand Smt. Suseela Devi, learned public prosecutor, contended that Ex. P2 is only an intimation from the hospital and it cannot be treated as a dying declaration and barring that document, the other dying declarations Exs. P6 and P9 are consistent. She pointed out that there is sufficient material to show that the deceased was fully conscious and in a disposing state of mind when the above statements were recorded and in that event mere non-examination of the Doctor who was present at the time of recording of Ex. P6 is not fatal to the prosecution case. Adverting to the discrepancy regarding the overt-acts of the appellants pointed out by Mr. Padmanabha Reddy from the evidence of P.W. 13, she argued that P.W. 13 is only an Investigating Officer and it is for him to set out the basis on which he deposed so and a bald statement of this nature cannot be accepted as he is neither an eye-witness nor a person who recorded any one dying declaration. Thus, she vehemently contended that the conviction of the appellants is based on legal and acceptable evidence and the appeal is, therefore, fit to be dismissed.
8. We applied our anxious consideration to all the above contentions of both sides.
9. As regards the first contention, P.W. 1, Vakati Lakshmi Kamakshi deposed that when she was present along with her husband at their Fancy Shop, appellant No. 1 Lavakishore came to the shop at about 8 p.m. and informed her husband that appellant No. 2 wanted to speak to her husband and asked him to meet and thereupon they asked their staff to close the shop and she herself and her husband (deceased) went to the house of her father-in-law i.e., appellant No. 2. She then narrated the incident. Before taking up her evidence regarding the incidents, it is necessary to examine whether her presence at the scene is probable or not. It is no doubt true that her name is not mentioned by the deceased in the dying declarations and hence Mr. Padmanabha Reddy wants us to doubt whether she accompanied the deceased to the house of the appellants. According to him she might not have been present at the Fancy Shop of the deceased as the women-folk generally do not sit in the shop. Smt. Suseela Devi, on the other hand contended that the family being a Vyasya family, it is possible that the ladies also go to the business place and hence there is nothing wrong in P.W. 1 being present in the shop when appellant No. 1 is said to have informed the deceased that appellant No. 2 had called him. She further contended that as there were disputes among the family members, P.W. 1 appears to have accompanied her husband by way of abundant caution. She, therefore, argued that merely because her name is not mentioned in the dying declaration, her presence need not be doubted.
10. We find force in the contention of Smt. Suseela Devi. It is true that ladies in the Vyasya community do sit in the shops and hence there is nothing unusual for P.W. 1 to go to her shop and that too in view of the altercation that had taken place between the deceased and another brother P.W. 2 on that very afternoon. It is also true any wife who cares for the welfare of her husband would have accompanied him to the place of their foes. It is note-worthy that a dying declaration is meant for stating the circumstances for the cause of death and hence it is not necessary that the names of eye-witnesses should find place therein. We are, therefore, of the view that the presence of P.W. 1 at the scene of occurrence need not be doubted on that ground, but on the other hand we are convinced that the circumstances prevailing then would justify her version that she accompanied the deceased at that time. We shall consider the testimony of P.W. 1 regarding the main incident a little later.
11. The second contention and the main contention of Mr. Padmanabha Reddy revolves round the dying declarations. He took us through the evidence of P.W. 7, Dr. B. Rajeswari, Dy. Civil Surgeon in Government Hospital, Nellore, who deposed that she had sent Ex. P2, requisition, to the IV Additional Judicial Magistrate of First Class. Nellore, to record dying declaration and also intimation Ex. P. 6 to V Town Police Station and that in both the requisitions it was shown that the care of address is Penchaliah (reference to appellant No. 2) She further deposed that the patient gave the care of address as Penchaliah as he was conscious. On the basis of the above evidence, it is pointed out that in column No. 6 relating to the alleged cause it is stated that 'burnt by his brother by pouring kerosene' and in column No. 2 address it is stated as 'C/o. Penchaliah' and it is argued that the name of appellant No. 1 alone is shown in column No. 6 and the name of appellant No. 2 would not have been given as care of address if appellant No. 2 had participated in the above offence. In this context it is pointed out the Ex. P3 dying declaration recorded by the Magistrate and Ex. P9 statement of the deceased recorded by the Head Constable, which is later treated as dying declaration, contain the names of both the appellants and thus, there is an improvement. It is thus argued with all force, at his command that Exs. P3 and P9 are the result of tutoring by P.W. 1 and other friends of the deceased and hence no reliance can be placed on all the above dying declarations. Whereas Smt. Suseela Devi, contended that Exs. P2 and P6 are only intimations to the concerned Magistrate and police and they cannot be treated as dying declarations inasmuch as neither P.W. 7 nor the deceased ever intended them to be used as dying declarations and hence no precautions which are required for recording a dying declaration were taken.
12. It would be convenient to extract Exs. P2 and P6 for proper appreciation of the above contention.
'Ex. P2 :
Intimation of Accidents and Injuries to Police
To
The Magistrate.1. Name of patient : V. Madhusudhan Rao Sex : M Street I.P. No. 6657. Village DOA 19-11-92 at 8.50 p.m.2. Address :C/o. Penchalaiah, Pedda Bazar, Nellore. Ch. Ramakrishna. 3. Brought in by : Ch. Ramakrishna4. Place at which the injury or accident occurred.5. Nature of injury or accident (simple or grievous). 6. Alleged cause : Burnt by his brother by pouring kerosene. 7. Ward in which admitted : MSB.8. Whether dying declaration necessary. Government : DSR Hospital.Dated. 19-11-1992.Sd/- B. Rajeswari. Time of despatch of intimation to the Police and Magistrate. Patient is conscious.'
'Ex. P 6 :
To The Vth Town Police Station.Intimation of Accidents and Injuries to Police. 1. Name of Patient : Madhusudhan Rao. Age : 32 years.Sex. M.I. No. 6857.Street : C/o N. V. Penchalaiah. 2. Address : Village : Pedda Bazar.Town : Nellore. 3. Brought in by : Ch. Ramakrishna Reddy. 4. Place at which the injury or accident occurred.5. Nature of injury or accident (simple or grievous). 6. Alleged cause : Burnt by his brother by pouring kerosene.7. Ward in which admitted : MS 6.8. Whether dying declaration necessary.Government : DSR Hospital. Dated 19-11-1992. Sd/- B. Rajeswari.Sd/- Sir, Received 19-11-1992 at 22.30 hrs. Sd/- 19-11-1992.'
We carefully perused both these documents. A pro forma has been partly filled up so much so that several columns are left blank and only columns 1, 2, 3, 6 and 7 are filled up. It is not mentioned in both these documents that the information therein was furnished by the deceased. It is possible that any one who had accompanied the deceased could have furnished that information. It is mentioned in column No. 3 that one Ch. Ramakrishna Reddy (reference to PW. 4) had brought the deceased. In normal course the patient who is said to have sustained 80% burns would not have been bothered for the purpose of filling up the above forms when another person Ch. Ramakrishna Reddy was available. It is no doubt true that P.W. 7 stated in the cross examination that the deceased himself furnished that information, but there is no contemporaneous record for P.W. 7 for deposing so and she does not appear to have noted down any where (not even on Exs. P2 and P6) that the deceased gave that information. It is, therefore, doubtful whether that information was furnished by the deceased himself. Moreover, P.W. 7 had sent Ex. P2 to IV Additional Judicial Magistrate of First Class, Nellore, with a view to secure his presence for recording his dying declaration. Therefore, she might not have intended to elicit the cause of burns of seek the details of the incident so as to treat the same as a dying declaration in which event she should have also recorded that the patient was conscious and in a fit and disposing state of mind. Above all, we are unable to trace this particular form to any manual like A.P. Police Manual or Medical Code and hence, we do not know under what authority such a form was prescribed and the purpose for which it was prescribed. In any event we are not convinced with the contention of Mr. Padmanabha Reddy that Exs. P2 and P6 are dying declarations or that the information contained therein was given by the deceased.
13. Excluding Exs. P2 and P6 from the purview of dying declarations, the other dying declarations are Exs. P6 and P9. Ex. P6 is the dying declaration recorded by the Magistrate, who is examined as PW 6 and Ex. P9 was recorded by the Head Constable, who is examined as P.W. 9. We carefully read both these documents and we find that they contain a cogent and consistent version viz., that his elder brother Vakati Lavakishore (reference to appellant No. 1) came to his shop during 8 'O' clock and took him to his house and asked him to withdraw the civil case which is pending in Court and that he stated that he would wait till the Court would give the judgment and thereupon the kerosene was poured upon him by his brother (appellant No. 1) and his father (appellant No. 2) lit the match stick and threw upon him and immediately he ran away. The contention of Mr. Padmanabha Reddy on the basis of the judgment of the Supreme Court reported in Kamla v. State of Punjab, : 1993CriLJ68 , where there were four dying declarations made by the deceased revealing glaring inconsistency vis-a-vis naming the culprit and one dying declaration indicating the incident as an accident is, therefore, devoid of merit as we have held above that Exs. P2 and P6 cannot be treated as dying declarations. Likewise the judgments of this Court reported in Chakiri Saidulu v. State of A.P. 1994 APLJ (Cri) 516 : (1994 Cri LJ 3782) and unreported judgment in Criminal Appeal No. 274/1995 dated 14-11-1995 are also not helpful to the appellants. Be that as it may.
14. Mr. Padmanabha Reddy also criticised Exs. P3 and P9 on some other grounds. He pointed out that P.W. 7, Magistrate, did not put any questions to the deceased so as to satisfy himself about his state of mind and that itself is sufficient to discard Ex. P3. He relied upon a judgment of the Supreme Court cited supra (1976 Cri LJ 1548), wherein it is held :
'Having regard to the surrounding circumstances, it would be extremely unsafe to place any reliance on the dying declaration and to found the conviction of the appellants on its basis, particularly in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assailants and in view of the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was not able to speak normally'.
We carefully scrutinised the evidence of P.W. 6 and perused Ex. P3 in order to see whether PW. 6 has followed the prescribed procedure while recording the above dying declaration. It is seen that he had put four questions before commencing to record the narration and he has deposed that he had put those questions to know the condition of the injured although he did not put a direct question whether he is capable of giving a statement. He denied a suggestion that the above preliminary questions put by him are not sufficient to know the condition of the patient. That apart he has recorded even before putting question No. 1 that the patient is conscious while recording the statement before Duty Doctor and all the answers to questions Nos. 1 to 4 unerringly show that he was conscious. At the end of the statement there is a certificate by the Duty doctor that the patient is conscious at the time of recording statements. Such a situation arose in a case reported in I. Bolum Bhaskara Rao v. State of A.P. 1985 Cri LJ 32 (Andh Pra), where a Division Bench of this held as under :-
'While recording the dying declaration the Magistrate must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding : It is incumbent upon the Magistrate who records the declaration to put a question regarding the mental state of the declarant. It is salutary to mention that there is no opportunity to the accused to test the veracity of the statement by cross-examining and they are denuded of that right. Under these circumstances, a solemn duty is cast on the Magistrate recording the declaration to take all the precautions to find out the state of mind of the person making the declaration. But the omission thereof does not by itself constitute any infirmity regarding the reliability of the declaration made unless there are attendant circumstances to show that the declaration is not reliable and it is not voluntary or truthful. It is the duty of the Court to carefully scrutinize the declaration and find out whether it is truthful and reliable. The certificate appended by the Doctor that the deceased was in a fit state of mind, though has a great material bearing, is not by itself conclusive. The court can go into the evidence and find out whether the deceased was in a fit state of mind at the time of recording his statement. It has to be assessed from the questions put and the way in which the deceased gave answers, the seriousness of the injuries sustained and the situs at which the injuries were inflicted and the surrounding circumstances.
Whether the reading of the declaration clearly indicated that for every question put by the Magistrate the deceased gave relevant, coherent, specific and definite answers without any hesitancy or hallucination it was held that the declaration was made by the deceased in a conscious and fit state of mind and the omission on the part of the Magistrate to put a specific question in that regard or an endorsement to that effect by the Doctor, did not constitute any infirmity to doubt the mental capacity to make the statement or veracity or voluntary nature or reliability of the declaration made by the deceased. It was more so when the successive dying declaration by the deceased was also consistent with the former declaration regarding the attacks by the accused though he omitted to mention the name of one of accused in both the declarations which was due to facing of memory because of injuries inflicted on him. Moreover, the evidence of eye-witness also corroborated both the dying declarations.'
Following the above ratio, we have no hesitation to hold that the dying declaration in this case cannot be discarded on the sole ground that the Magistrate did not put a direct question whether the deceased was capable of giving a statement. We are fortified in the above view by a judgment of the Supreme Court reported in G. R. Ghyare v. State of Maharashtra, 1993 Cri LJ 3414 : (1993 AIR SCW 2971), wherein it has categorically been held that where the dying declaration was recorded by the Magistrate after obtaining a certificate from the Doctor that the deceased was in a fit state of mind to make the statement and even after recording declaration, the Magistrate obtained a further certificate from the Doctor that the deceased was in a fit state of mind to make the statement, it could not be discarded on the ground that the Magistrate did not put a direct question to the deceased whether she was in a fit state of mind to make the statement.
15. It is then contended by Mr. Padmanabha Reddy that Ex. P9, statement of the deceased, recorded by H.C. 1180 suffers from two grave defects viz., that it is not recorded in question and answer form and there is no certificate by the Doctor that he was fit to make a statement and hence the same may be eschewed from consideration. Smt. Suseela Devi countered the above contention stating that H.C. 1180 was duty bound to record a statement of the injured for the purpose of taking cognizance under S. 154 of Code of Criminal Procedure and he accordingly recorded the statement of the deceased for the purpose of issuing FIR and the Certificate appended to the statement that it was read over to the deponent and he admitted them to be correct would go to show that the deceased was conscious and in a fit state of mind. She added that the police officers are guided by the instructions in A.P. Police Manual which does not envisage any such medical certificate underneath the statements under S. 154 of Code of Criminal Procedure and hence it does not suffer from any infirmity. A judgment reported in Tapinder Singh v. State of Punjab, : 1970CriLJ1415 is cited in this context. In the above judgment it is held at follows (para 4) :-
'.... He started with an attack on the FIR based on the dying declaration. According to the counsel, the information in regard to the offence had already been conveyed to the police by means of a telephone message and the police had actually started investigation on the basis of that information. This argument was, however, not seriously persisted in and was countered by the respondents on the authority of Sarup Singh v. State of Punjab, AIR 1964 Punjab 508 : (1964 (2) Cri LJ 718). The telephone message was received by Hari Singh A.S.I., Police Station, City Kotwali at 5.35 p.m. on September 8, 1969. The person conveying the information did not disclose his identity, nor did he give any other particulars and all that is said to have been conveyed was that firing had taken place at the taxi stand, Ludhiana. This was, of course, recorded in the daily diary of the police station by the police officer responding to the telephone call. But prima facie this cryptic and anonymous oral massage which did not in terms clearly specify a cognizable offence cannot be treated as first information report. The mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report. The question whether or not a particular document constitutes a first information report has, broadly speaking, to be determined on the relevant facts and circumstances of each case. The appellant's submission is that since the police authorities had actually proceeded to the spot pursuant to this information, however exiguous it may appear to the court, the dying declaration is hit by S. 162 Cr.P.C. This submission is unacceptable on the short ground that S. 162(2) Cr.P.C. in express terms excludes from its purview statements falling within the provisions of S. 32(1), Indian Evidence Act. Indisputably the dying declaration before us falls within S. 32(1), Indian Evidence Act and as such it is both relevant and outside the prohibition contained in S. 162(1) Cr.P.C. ........'
16. Another criticism by Mr. Padmanabha Reddy is that Doctor A. Rajeswari who appended the certificate under Ex. P3 has not been examined and hence it is not established that the deceased was in a fit and disposing state of mind. The learned public prosecutor stated that Doctor A. Rajeswari is said to be out of country and hence her presence could not be secured and, therefore her endorsement and signature were got proved by PW. 7, Dr. B. Rajeswari, who is no other than her colleague and that part of evidence has not been challenged in the cross-examination.
17. We perused the entire deposition of P.W. 7 along with her further examination on 1-11-1994 and the endorsement and signature of Dr. A. Rajeswari which has been proved through her. It is evident that the deceased was conscious at the time of recording Ex. P3. In the above circumstances, non-examination of the concerned Doctor does not affect the prosecution case inasmuch as P.W. 6. Magistrate, also satisfied himself about the mental state of the deceased.
18. As already indicated above, Exs. P3 and P9 are consistent in all material particulars. The learned trial Judge adverted to this aspect and his finding in this regard is sustainable. In this context Mr. Padmanabha Reddy contended that PW 13, Investigating Officer, deposed that the witnesses examined by him informed him that appellant No. 2 poured kerosene and appellant No. 1 lit a match stick and, therefore, this piece of evidence throws doubt on the veracity of the prosecution version. The learned Public Prosecutor argued that PW 13 has not specified the witness or witnesses who stated so and he did not place the relevant record before the Court; in the absence of which, it is not possible to believe PW 13. We scanned the evidence of PW 1, who is an eye-witness, PW 6, Magistrate and PW 9, Head Constable, who are all the material witnesses to speak to the overt acts of the appellants and we did not find any contradiction elicited from them in the previous statements if any. Since there is no other eye-witness except PW 1, no one else would have stated to PW 13 about the overt acts of the appellants. Therefore, we fail to understand as to how PW 13 would have stated so and that too without specifying who that witness was. After all he is the Investigating Officer and he could have deposed to any fact with reference to the C.D. file or the investigation record which is already filed into the Court. The learned defence counsel should have brought on record the relevant investigation record in support of the above contention. In the absence of such a record, we are unable to place any reliance on the bald statement of PW 13 in this regard.
19. It is lastly contended by Mr. Padmanabha Reddy that the Autopsy Surgeon has not been examined to prove the cause of death. It is on record that the deceased was shifted to Kilpak Hospital, Madras, for better treatment and he succumbed there on 24-11-1992 and the autopsy was conducted at Madras. The deceased has undergone treatment for a brief spell in the Government Hospital, Nellore, and he was shifted to a private hospital known as Jayabharat Hospital, Nellore, on 19-11-1992 at about 10.30 p.m. and he has been under treatment of PW 8 Dr. Prabhakar Patro and others. The testimony of P.W. 7 Dr. Rajeswari and PW 8 Prabhakar Patro regarding the burns sustained by the deceased is available. Ex. P5 is the certificate issued by PW 7 and according to her, the deceased sustained superficial burns all over both lower limbs and both upper limbs, lower part of abdomen and whole of back and chest and they are grievous injuries. PW 8 produced a copy of case sheet, which is available in Jayabharat Hospital and it is marked as Ex. P7. Evidently the deceased died of the burn injuries. It is possible that some complications arose after he was shifted to Madras Hospital where he died, but the fact remains that the cause of death is on account of the burn injuries. In these circumstances, non-examination of Autopsy Surgeon is not fatal to the prosecution case.
20. Apart from the said two dying declarations Exs. P3 and P9, there is testimony of Pw 1 Smt. Vakati Lakshmi Kamakshi, wife of the deceased. As already discussed above, her presence at the scene of occurrence at the material time appears to be probable and she testified that appellant No. 2 asked her husband to withdraw the suit filed by him in the Sub-Court, Nellore, for which the deceased refused and thereupon appellant No. 1 also insisted her husband to withdraw the case and her husband bluntly refused and thereupon appellant No. 1, her brother-in-law, stated that her husband is a stubborn fellow and unless he was done to death, they cannot get rid of him. She further narrated that appellant No. 1 went into the house and immediately came out with a kerosene tin and poured kerosene on her husband and thereupon her father-in-law (Penchaliah) (appellant No. 2) lit a match stick and set fire and thereupon the deceased raised cries and went into the bazar and then his neighbouring shop owner Vakati Ramakrishna covered her husband with a blanket to put off the flames. It is note worthy that the above version of PW 1 fully corroborates the aforesaid two dying declarations Exs. P3 and P9. The learned trial Judge has, therefore, found and rightly so that the prosecution has established the guilt of the appellant beyond all reasonable doubt. He has also recorded valid reasons for rejecting the plea of alibi set up by the appellants and the evidence of DWs. 1 to 6 in that regard.
21. Alternatively Mr. Padmanabha Reddy contended that it is not a case of premeditated murder and that the prosecution version itself would show that there was some argument between the parties and on account of the sudden quarrel, the incident appears to have sparked of and, therefore, it is a case of Section 304 of Indian Penal Code. We are unable to agree with the above contention in view of the background of the case and the manner in which the deceased was taken to the house of the appellants and thereafter the deceased was asked to withdraw the partition suit and on his refusal to oblige them, appellant No. 1 brought a kerosene tin from inside and doused the deceased in kerosene stain that 'Mondimunda Koduku, Veedini champite kani veedi peeda varagadu' (stubborn fellow) and then appellant No. 2 lit a match stick and threw it on the deceased. In our view, it is not a case of sudden quarrel and hence it does not fall under exception IV to Section 300 of the Indian Penal Code. In the judgment cited supra (1985 Cri LJ 32) (Andh Pra), there were successive dying declarations by the deceased and they were found to be consistent with each other and the evidence of eye-witness also corroborated both the dying declaration. In this case also, the evidence of PW 1, who is the sole eye-witness, fully corroborates the dying declarations Exs. P3 and P9 and hence, we are satisfied that the prosecution has succeeded in establishing the guilt of both appellants beyond reasonable doubt. Their conviction under Section 302 of Indian Penal Code and sentence of imprisonment for life are, therefore, sustainable. The point is answered accordingly.
In the result, the appeal stands dismissed and the judgment under appeal is confirmed.
22. Appeal dismissed.