Bilal Nazki, J.
1. This appeal is filed by Accused No. 1 in Sessions Case No. 191 of 2003 on the file of III Additional Sessions Judge, Karimnagar. Originally charge sheet was filed against three persons and they were charged for the offence under Section 302 read with 34 of IPC. A-2 and A-3 have been acquitted. A-1 was found guilty for the offence under Section 302 of IPC and was sentenced to undergo imprisonment for life and also fined Rs. 2,000/-, in default, he has to suffer simple imprisonment for six months.
2. The learned Counsel for appellant submits that the conviction in this case cannot be sustained as the trial Court has convicted the accused on the basis of a dying declaration which is not reliable. He submits that there is no evidence other than the dying declaration and in this case, there are two dying declarations, which contradict each other.
3. The prosecution story was that A-1, A-2 and A-3 who were the brother-in-law, husband and mother-in-law respectively, of the deceased Shameem Sulthana, designed a plan to kill Shameem Sulthana because of a property dispute. They poured kerosene over her and set her on fire on 04.05.2002 at about 7.00 hours at Islampura, Jagtial. A Head Constable recorded the statement of injured at the Government hospital, Jagtial, in which she stated that she had been married 12 years prior to the date of occurrence and had four children and was having happy marital life. On 04.05.2002, she was pouring kerosene over the oven and when she lit it to prepare tea, flames caught her sari. She raised hue and cries. Then neighbours rushed to her and extinguished the flames. Thereafter, a dying declaration was recorded by the Magistrate in the hospital. Charges are accordingly framed by the trial Court. Accused pleaded not guilty and claimed to be tried. Prosecution examined 13 witnesses and exhibited 21 documents.
4. PW-1 is the father of the deceased. He stated that A-2 was the husband of the deceased. A-1 was the brother of A-2, and A-3 was the mother of A-1 and A-2. His daughter had been given in marriage to A-2 about 12 years before and had given birth to four children. This witness did not support the prosecution story and stated that when he heard about the occurrence, he rushed to the hospital and had spoken to his daughter, who told him that she had caught fire accidentally. He was declared hostile.
5. PW-2 is the mother of the deceased. She also supported the version given by PW- 1 and did not support the version of the prosecution. PW-3 is the sister of deceased. Again she supported PWs. 1 and 2 and was declared hostile as she did not support the prosecution story. Same is the case about PWs. 4, 5 and 6, who are neighbours. PW-7 was a Doctor who was on duty when the deceased expired.
6. He stated that under Ex. P-8 he intimated it to the Police. PW-8 is the Magistrate, who stated that he received a requisition being Ex. P-9 on 04.05.2002 at about 10.15 a.m. from the Police Station, Jagtial to record the dying declaration of Shameem Sulthana, the deceased. He went to the Government hospital and with the help of the duty Doctor he identified the patient. He obtained endorsement of the doctor and posed introductory questions to the injured. Ex. P-10 was the endorsement of the duty doctor. He asked all the persons to vacate the premises before he started questioning the injured. He concluded the recording of dying declaration at 10.35 a.m. He obtained the right hand thumb impression of the patient. Ex. P-11 was the statement of the deceased and Ex. P-12 was the endorsement of the doctor at the end of the statement.
7. Before coming to the cross-examination of this witness, it will be necessary to go to Ex. P-11 which is the dying declaration recorded by him. In her dying declaration, the deceased had stated that for ten years she was living with her husband in a rented portion and as they were not in a position to pay the rent, they brought the material in order to construct a room near her in-laws' house.
8. Her brother-in-law and mother-in-law quarrelled with her and 15 days prior to the date of occurrence, her brother-in-law beat her. She stated, 'Today morning at about 6 a.m., my junior brother-in-law poured kerosene on me and lit fire'.
9. She then stated that at that time her husband and mother-in-law were present.
10. They also stated that she should die. Then there is Ex. P-20, which is the statement of deceased recorded on 04.05.2002 at 1400 hours, in which she stated that at 7 a.m. on that day, she caught fire accidentally.
11. In his cross-examination, PW-8 denied the suggestion that deceased was tutored to give the version as is contained in Ex. P-11. He also denied the suggestion that the deceased was not able to understand either Telugu or English.
12. PW-9 conducted autopsy and found burn injuries on face, neck, upper limb, lower limbs, genitalia, palms, interior part of the chest and abdomen. The cause of death according to him was septicemia shock due to burns. PW-10 is the doctor, who made endorsements as in Exs. P-14 and P-15 on dying declaration Ex. P-11. P.W. 11 was the Head Constable at P.S. Jagtial Town. He stated that on 04.05.2002, on receiving information, he went to Government hospital, Jagtial and recorded the statement of the injured. Basing on that statement, he registered a case in Crime No. 94 of 2002 for the offence of woman burning. He filed a requisition before JFMC, Jagtial to record the dying declaration. On 11.05.2002 while undergoing treatment, the injured/deceased succumbed to injuries. Then he visited the hospital, held inquest in the presence of PW-6 and LWs. 8 and 9. He got the body photographed. He exhibited photographs and negatives. He forwarded the dead body to Government hospital for postmortem examination. He visited the scene of offence and observed the same. He prepared the crime details under Ex. P-17. In his cross-examination he stated that witnesses had stated before him that the lady had caught fire accidentally. In his re-examination in chief, he stated that after receiving information he rushed to Government hospital, Jagtial and recorded the oral complaint of victim. He read over the contents to the victim and obtained her thumb impression on Ex. P-20. Basing on Ex. P-20, he issued FIR in Crime No. 94 of 2002.
13. PW-12 is the Inspector of Police, who conducted the investigations. He stated that on receiving dying declaration, the Sub-inspector of Police altered the Section of Law from 174 Cr.P.C. to 302 read with 34 of IPC. He visited the scene of offence, prepared rough sketch under Ex. P-19 and recorded the statements of PWs. 1, 2, 3, 4, 5 and 6. On 31.08.2002, he apprehended the accused at 11.30 a.m. at their house at Islampur and sent them to Judicial remand. He filed charge sheet on 30.09.2002. In his cross-examination he denied the suggestion that PWs. 1 to 6 had not stated before him what was contained in Exs. P-1 to P-6 respectively. His Head Constable PW-11 examined PWs.1 to 4 and LW-5, but he himself re-examined and recorded their statements on 27.08.2002 after he took up investigation from the Sub-Inspector. He did not know whether the statements recorded by the Head Constable PW-11 were sent to the Court or not. He denied the suggestion that he had suppressed the statements recorded by the Head Constable as they were in favour of the accused. The statement of this witness assumes importance in view of the fact that PW-11 had stated that he recorded the statements of material witnesses i.e. PWs. 1 to 4 and LW-5 and they had supported the alleged earlier version of the deceased that she caught fire accidentally. These statements were not produced before the Court and PW-12 accepts that the statements of PWs. 1 to 4 and LW-5 were recorded twice, earlier by Head Constable and later by PW-12. Therefore, a doubt is caused as to why the statements of the witnesses recorded by the Head Constable at earlier point of time were suppressed from the Court. PW-13 is a witness to observation regarding scene of offence. There is a doubt with respect to the investigation itself as to why the statements recorded by PW-11 were not brought before the Court.
14. Now, we have two dying declarations, one is Ex. P-20 which was recorded at the earliest point of time and according to this dying declaration, the injured stated that she caught fire accidentally. Then there is another dying declaration which is recorded by the Magistrate, in which the deceased stated that she was burnt by A-1. The learned Counsel for appellant submits that since there are two dying declarations which contradict each other and there is no other evidence, therefore, the dying declaration recorded by the Magistrate cannot be made the sole basis for conviction of the accused persons.
15. One of the judgments on which defence has placed reliance is Kamla v. State of Punjab : 1993CriLJ68 . In this case, there were four dying declarations, which were contradicting each other and in para 8 of this judgment, the Supreme Court, after noting the inconsistencies between these dying declarations, observed,
16. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation we just cannot pick out one statement and base the conviction of the appellant on the sole basis of such a dying declaration. The Courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinized. In the instant case the deceased was wavering for the reasons best known to her. The inconsistency between two dying declarations is enough to manifest the same.
17. He also relies on a judgment of Supreme Court in P. Mani v. State of Tamil Nadu 2006 AIR SCW 1053.
18. In para 14 of this judgment, the Court held-
Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.
19. Reliance has also been placed on a judgment of Supreme Court in State of Punjab v. Parveen Kumar 2004 (8) Supreme 603. Para 12 of this judgment lays down the same principle as was laid down in P. Mani's case 2006 AIR SCW 1053, which is reproduced hereunder-
While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case, stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and Anr. v. State of Mysore : 1965CriLJ31 , and Khusal Rao v. State of Bombay 1958 SCR 552.
Counsel for appellants has also relied on a judgment of this Court in Harijana Mulinti Bhushanna v. State of A.P. 2004 (2) ALT (Crl.) 571 (DB) Para 23 of this judgment reads as under-
P.W. 14 stated that on learning that Benjamin had regained consciousness in the evening of 22-10-1998, he recorded the statement of Benjamin at the hospital.
That statement was not produced and no explanation was given by P.W. 14 for non production of that statement. Learned Counsel for the appellants relying on Gaddem Jayarami Reddi In Re (1959) 1 An.W.R. 196 and Kota Peda Nagesh v. State of A.P. 1999 (1) ALT (Crl.) 364 contended that suppression or non-furnishing of the entire statements recorded by Police would cause prejudice to the accused and hence the accused are entitled to acquittal. In those cases, the statements recorded by Police under Section 161 Cr.P.C., were either suppressed or not furnished. In such circumstances, this Court laid down the law that suppression or non-furnishing of such statements would invite adverse inference to be drawn against the Prosecution. Therefore, the ratio laid down by this Court is applicable to the facts of the present case, because in the case on hand the statement suppressed is not a mere statement recorded under Section 161 Cr.P.C. It is a dying declaration, as Benjamin died subsequently.
20. The learned Public Prosecutor has, however, relied on a judgment of Supreme Court in Sohan Lal v. State of Punjab 2004 SCC (Cri) 226. This was a case where the Court was considering five versions given by the prosecution and not the five versions given by the deceased in the dying declarations. There were only two dying declarations, one was recorded by the Magistrate and another was recorded by the Tahsildar and the Court did not find any contradiction between these two dying declarations. In para 22 of the judgment the Court said-
According to the learned Counsel for the accused, the circumstances under which the deceased-Kamlesh Rani died have been narrated differently on five different occasions. First, there is the version in the FIR lodged by Bansi Ram (PW-2);
Second, is the version given in the deposition of Bansi Ram (PW-2); third, is the dying declaration recorded by Naib Tehsildar Lakhbir Singh (PW-6) (Ex. PN);
fourth, is the version in the statement of Kamlesh Rani recorded under Section 161 of the Cr. P.C. and fifthly, the version given in the deposition of Jit Singh (PW-7) under cross-examination. Learned Counsel contended that each one of the versions is inconsistent with the others, and, therefore, taking an overall view, as each one the versions conflicts with the dying declaration (Ex. PN), it would be unsafe to rely on the dying declarations to uphold the conviction of the appellants. Although, at the first blush, the contention of the learned Counsel for the appellants seems attractive, upon a careful appraisal it has no substance. We have already analysed the deposition of Bansi Ram (PW-2) in the light of the deposition of Usha Rani (PW-3). A cumulative reading of the two, together with the medical endorsements made on the bed-head ticket of G.N.D.
Hospital, clearly ruled out Bansi Ram as having received any information from deceased-Kamlesh Rani. It is true that both in the FIR as well as in the deposition of Bansi Ram (PW-2) an exaggerated version had been given. Merely, because Bansi Ram takes it upon himself to give an exaggerated and coloured version of the circumstances under which Kamlesh Rani died, we do not think that it would be proper to reject the dying declaration (Ex. PN) which we have tested on the anvil of the law laid down by the Constitution Bench of this Court in Laxman (supra) and found it to have passed. We are, therefore, not inclined to accept the contention that the dying declaration (Ex. PN) needs to be rejected because of the FIR of Bansi Ram and the deposition of Bansi Ram do not tally with it.
21. In the light of the judgments quoted above, we find it difficult to uphold the conviction of the appellant solely on the basis of dying declaration recorded by the Magistrate, because Ex. P20 is another dying declaration which was recorded at the earliest point of time in which the deceased stated that she caught fire accidentally. This story was further corroborated by PWs. 1 and 2 who are the parents of the deceased. They also stated that they had talked to their daughter when she was in the hospital and she had told them that she had received burn injuries accidentally. P.W. 3 is the sister of the deceased who also said the same thing. PWs 4 to 6 who are neighbours also said the same thing. Therefore the dying declaration which was recorded by the Magistrate in which she stated,
Today morning at about 6 a.m. my junior brother-in-law poured kerosene on me and lit fire', is not corroborated by any other evidence. Therefore a reasonable doubt is created.
22. The learned Public Prosecutor also submitted that if the case under Section 302 of IPC is not proved, it was a case under Section 304B of IPC. But there was no evidence that it was a case of dowry death and death had been caused within seven years of the marriage. The learned Counsel for the appellant, however, submits that a person not charged of Section 304B IPC, but charged with Section 302 of IPC, cannot be convicted under Section 304B of IPC. In this case, he relies on various judgments of Supreme Court and also of this Court. Since there is no evidence that this was a case of dowry death and the death had been caused within seven years of the marriage, we do not address this question.
23. For the reasons given hereinabove, the conviction of the appellant cannot be sustained. Therefore, the appeal is allowed and the judgment of trial Court is set aside. The appellant shall be released forthwith, if not required in any other case. He is also entitled for refund of fine amount paid, if any.