K. Lakshman, J.
1. Heard Mr. M. Phanindra Bhargav, learned counsel for appellant - accused and Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor appearing on behalf of the respondent.
2. This appeal is filed challenging the judgment dated 28.04.2016 in S.C. No.760 of 2013 passed by learned Additional Metropolitan Sessions Judge, Cyberabad at L.B. Nagar.
3. Vide the aforesaid judgment, the trial Court convicted the appellant - accused for the offence under Section - 302 of IPC and accordingly sentenced him to undergo life imprisonment and to pay fine of Rs.10,000 (Rupees Ten Thousand Only) and in default to undergo simple imprisonment for a period of one (01) year.
4. The case of the prosecution is as under:
i) The appellant - accused - Kandugudu Jayavanth @ Raju @ Jayappa hails from Kanapur Village, Aurad Mandal, Bidar District of Karnataka State. His marriage was performed with one Kodar Sunitha of Vadagam Village of Karnataka State about 10 years back. They have two (02) children. Since his earnings at native place was insufficient, he migrated to Hyderabad and working as Hamali in Kothapet Fruit Market by leaving his wife and two children at his native place.
ii) While working as labourer in Fruit Market, Kothapet, he came into contact with one Muthyala Laxmi (LW.5) about six (06) years ago who is having two children and she is a widow. Therefore, he started extra marital relation with LW.5.
iii) Again about six (06) months prior to the incident, the accused again came into contact with Manne Andalu (deceased herein) at Fruit Market, Kothapet and started leading extra marital life with the deceased also by taking a room on rent adjacent to the room of LW.5 and kept her in that room and was living with her.
iv) Having come to know about illegal intimacy of the accused with deceased, LW.5 started quarrelling with both of them. Thereafter, on coming to know about illegal intimacy of deceased with accused, PW.4, the husband of the deceased - Manne Anjaneyulu also deserted his wife (deceased) and was staying at his native village - Gungal, with their two children.
v) Both LW.5 and the deceased were quarrelling more often. The accused shifted his residence from Bandlaguda to H.No.11-21-1069, Phase-I, NTR Nagar, L.B. Nagar about one week prior to the incident and was staying with the deceased.
vi) The accused used to beat the deceased regularly in drunken state and was abusing her in most filthy language, for which the deceased having disgusted with the attitude of the accused told him that she would go to her husband if he beats her and abuses her regularly. On that, the accused decided to do away the deceased and get rid of her forever.
vii) Accordingly, on 13.01.2013 at about 16:30 hours, the accused came to his house at NTR Nagar from his labour work and abused the deceased as usual and quarreled with her, for which she told him that she would join her husband if he behaves like that. Upon which, the accused got enraged and decided to kill her. Therefore, with an intention to kill her, he poured kerosene on her and set her ablaze with a burning match stick, due to which, she received severe burn injuries, flames raised, she tried to come out of the house by raising hue and cries and tried to catch hold the accused, then the accused pushed her inside. During the scuffle, the accused also sustained burnt injuries on his tips of his fingers of right hand, right hand forearm, a burnt injury on left thumb edge and burnt injury on right knee and fled away from there.
viii) On hearing her hues and cries, neighbours, PWs.1 & 2 and LW.3 gathered there and shifted the deceased to Osmania General Hospital, Hyderabad in 108 Ambulance and got her admitted in ABC Ward on 13.01.2013 at 19:25 hours vide MLC No.282 and IP No.1487 for treatment where she succumbed to injuries on 15.01.2013 at 19:30 hours. Thus, the accused committed the aforesaid offence.
5. On receipt of information from Osmania General Hospital, Hyderabad on 13.01.2013 at 20:30 hours and on recording the statement of deceased by PW.14 - Sub Inspector of Police, L.B. Nagar Police Station, PW.14 registered a case in Crime No.56 of 2013 under Section - 307of IPC took up the investigation.
6. During the course of investigation, he examined the witnesses and recorded their statements. He also secured presence of panchas (PW.6 & LW.12) and drew the scene of offence. He also took steps for recording the dying declaration of the deceased and got recorded the same through PW.12 - Magistrate.
7. While the investigation was in progress, the deceased was succumbed to injuries on 15.01.2013 at 19:30 hours. Then, LW.13 - Inspector of Police, altered the section from 307 of IPC to 302 of IPC and proceeded with further investigation. He also secured panchas (PWs.7 and 8) for inquest and got conducted autopsy over the dead body of the deceased through PW.11. Pursuant to the confessional statement made by the accused in the presence of PW.9 and LW.10, he recovered and seized MOs.1 to 3. On completion of investigation, he filed a charge sheet against the appellant herein. The same was committed to the Sessions Court which has taken on file as S.C. No.760 of 2013 and thereafter made over to the trial Court.
8. The trial Court framed charge for the offence under Section - 302 of IPC against the accused and then proceeded with trial.
9. During trial, PWs.1 to 14 were examined, Exs.P1 to P17 were marked and MOs.1 to 3 were exhibited. Neither oral evidence nor documentary evidence was let in by the accused.
10. After completion of evidence on behalf of the prosecution, the accused was examined under Section - 313 of Cr.P.C. Thereafter, upon hearing both sides, the trial Court recorded conviction against the appellant herein for the aforesaid offence and accordingly imposed sentences of imprisonment in the manner stated above. Challenging the said conviction and sentence of imprisonment, the appellant preferred the present appeal:
11. Learned counsel for the appellant - accused contended as follows:
i. There is no direct evidence and the entire case rests on circumstantial evidence.
ii. PW.1 was not the proper person to identify the accused during the course of trial and she is not an eye-witness to the occurrence.
iii. No report was lodged by PW4, husband of the deceased, with regard to missing of her wife.
iv. PWs.8 and 9 did not support the case of prosecution.
v. In the dying declaration, the deceased did not refer to the name of the accused and she referred to the name of one Mr. Raju, who is not the accused. Therefore, no motive can be attributed to the accused basing on the said dying declaration.
vi. There is no evidence to show that the accused was working at Fruit Market, Kothapet.
vii. The Investigating Officer did not collect finger prints on kerosene tin and also the kerosene in the said tin separately.
viii. Without considering the said aspects, learned trial Court convicted for the aforesaid offence and imposed life imprisonment.
With the aforesaid submissions, learned counsel sought to set aside the conviction and sentence imposed on the appellant.
12. On the other hand, learned Additional Public Prosecutor would submit as under:
i. There is evidence through PW.1 for identification of accused.
ii. The dying declaration made by the deceased proves the case of the prosecution. The contradictions and inconsistencies, if any, in the said dying declaration are minor in nature and the same would not tilt the case of prosecution.
iii. Though there is no direct evidence, the circumstantial evidence forms a complete chain to convict the appellant.
iv. There was motive on the part of the appellant and the same was proved by the prosecution beyond reasonable doubt.
v. Having considered all the aforesaid aspects only, the trial Court convicted the appellant and, therefore, there is no error in it.
With the aforesaid submissions, learned Additional Public Prosecutor sought to dismiss the appeal.
13. In view above rival submissions, the point that falls for consideration by this Court is:
Whether the conviction and sentence of imprisonment recorded by the trial Court for the offence under Section - 302 of IPC against the appellant herein - accused are sustainable, both on facts and in law?
14. In view of the aforesaid rival submissions and perusal of record, the prosecution alleges that this case concerns a homicidal act arising out of a strained illicit relationship. The accused and the deceased woman, who was already married and had two children, were living together after leaving her husband. Their relationship was abusive, particularly when the accused was intoxicated and he used to assault her frequently. When the deceased expressed her intention to return to her husband, the accused became enraged and formed an intention to kill her.
15. Section 302 of IPC embodies the punishment for murder. Its essence lies in penalizing acts where a person intentionally causes the death of another, or commits an act with the knowledge that it is so imminently dangerous that it will likely result in death. The provision reflects the gravity with which the law treats the unlawful taking of life. It authorizes the imposition of the most severe punishments, like death penalty or imprisonment for life, depending on the circumstances of the case. The focus under this section is not merely on the act of causing death, but on the presence of intention or knowledge that elevates the act to commit murder, thereby justifying stringent punishment.
16. Now, coming to the case on hand, PW.1 is the owner of the deceased house and an eye-witness. According to her, she resides at Road No.12, Banjara Hills, Hyderabad. They are three sisters. Their father had two houses at NTR Nagar, L.B.Nagar and out of which one house had given to one of her sisters. House No.11-21-1069 consists of nine rooms out of which, three rooms fell to her share. She used to give those rooms on rent. About 6th or 7th January, 2013, the accused along with his wife (deceased) came and took one room on monthly rent of Rs.1,000/-. She identified the accused while giving evidence in the Court.
i) PW.1 further deposed that in connection with Sankranthi festival, she came to her parent’s house along with her children. Her sister, Sailaja also came. On 13.01.2013 during after-noon hours, when they were making preparations for eatables on the eve of Festival, at about 4.30 P.M., she heard hue and cries and two persons also came to them and informed that there was quarrel going on in the room of the accused. Immediately, she rushed to the room and her sister followed her. She noticed the deceased was in flames in the room and the accused on seeing them ran away from the spot. They put off the flames by covering with bed sheet. When she enquired the deceased, she disclosed that the accused quarreled with her for the last two days and then she expressed her willingness to go to her husband, the accused sprinkled kerosene upon her and set fire. Some persons gathered there and informed 108 Ambulance and the injured deceased was shifted to Hospital. Later, she came to know that the deceased died while undergoing treatment in Osmania General Hospital, Hyderabad. The police examined her and recorded her statement.
ii) During cross-examination, PW.1 admitted that at the time of incident, all the three rooms were occupied by the tenants. She does not say the names of the tenants at that time as subsequently new tenants came. Her mother let out the premises to the accused and informed her and they visited the premises and saw them. When she visited the house of her parents on the eve of festival, her mother informed her that the deceased and the accused joined in one room.
iii) PW.1 further admitted that at the time of her witnessing the deceased, she noticed flames from bottom to top and she could not clearly notice the flames as it was partly dark. She noticed a blanket by the side of the deceased and then she spread over the same upon the deceased. At the time of incident, the lights were not on as it was 4.30 P.M. She admits that she does not know any other particulars of the accused, except one Raju joined as tenant.
17. PW.2, neighbour of the deceased and eye-witness, deposed that on the date of incident, when he came to the house and during evening hours a group of public gathered in a house situated four houses away from his house. He also went to the house of deceased and found a lady with burn injuries and laid on the ground. Then the police came there. Ambulance also came there and the injured was shifted on Ambulance for treatment. He found smell of kerosene at the scene of offence. He does not know who sprinkled the kerosene and how set fire. The police examined him and recorded his statement.
i) During cross-examination, PW.2 admitted that when the injured was in flames, the daughters of the house owner came there. He stated before the Police that on enquiry he came to know that one Raju and the injured were husband and wife lived together and came about 4 days back on rent and quarrelling each other frequently and on 13.01.2013 at 4.30 P.m., Raju quarreled with the injured and poured kerosene on her and set her ablaze and fled away, as such, the injured raised hue and cry and the neighbours gathered there, put off flames, called 108 Ambulance and shifted her to the Hospital.
18. PW.3, photographer, deposed with regard to taking photographs of injured at the scene of offence. He also noticed an empty kerosene tin, matchbox and partly burnt saree piece. Ex.P1 is a bunch of five photographs among six. Ex.P2 is the C.D. Police examined him and recorded his statement.
19. PW.4 is the husband of the deceased. He deposed that the deceased is his wife. She is no more and died due to burn injuries. About 4 or 5 years prior to the death of deceased, he married her. They used to live together for some time at his native village. They were blessed with one son and one daughter. Later, they shifted to Bandlaguda huts. They went for coolie work for 2 or 3 months and his wife used to work in nearby houses. He used to come to Uppal for work there and go back to Bandlaguda. He went to his village along with his children and his wife stayed in the hut at Bandlaguda. He wanted to return on the same day night, he came back on the next day morning and found his wife missing. He searched for his wife for 5 months and saw his wife in Osmania General Hospital while she was undergoing treatment with burn injuries. He was told by his wife that she went along with Raju, stayed with him and when she wanted to come back, the said Raju set her fire by pouring kerosene. His wife died while undergoing treatment. After four days of the death of his wife, he came to know about Raju. While undergoing treatment his wife showed the photograph of the Raju. Later he saw Raju in the police station.
i) During cross-examination, PW.4 admitted that he did not lodge any report when his wife missed from his house at Bandlaguda. The Police, L.B. Nagar informed him about admission of his wife in the Hospital.
20. PW.5 is the mother of the deceased and she is a circumstantial witness. She deposed that the deceased is her daughter. PW.4 is her son-in-law. She got two sons and three daughters. The deceased is her 4th issue. The marriage of the deceased with PW.4 was performed about 10 to 15 years back from the date of her evidence. Her daughter and PW.4 migrated to city about 6 months prior to the death of deceased. The deceased used to attend labour work at NTR Nagar, where she had contacts with one person Raju. During the Sankranthi festival, PW.4 went his native place along with his children and the deceased stayed back to collect labour charges and go to her husband. Her daughter did not visit her in-law’s house. After the deceased admitted in Osmania General Hospital for treatment of burns, PW.4 informed him over phone. Immediately she went there and saw her daughter with burn injuries. When she quested her daughter how injuries caused and she stated that one Raju had acquaintance with her while working together, she quarreled with him and he did not allow her to go to her native village. He poured kerosene and set her fire and she was brought to the hospital. The police examined her and recorded her statement. The accused is responsible for causing burn injuries over her daughter.
i) During cross-examination, she admitted that her son-in-law used to stay in the house and her daughter used to go to earn money before death. Her daughter told her that Raju was responsible for the injuries found upon her body. Her daughter and son-in-law lived together after the marriage and after their migration to City, the said Raju had acquaintance with her daughter and present at the time of death of her husband.
21. PW.6, panch witness for the scene of offence and seizure material, deposed that on the instructions of the police, she and LW.12 acted as mediators. The police inspected the scene of offence in their presence where they found marks of flames in the room. They also noticed burnt saree pieces, kerosene plastic tin and match box, and the police seized the same as in MOs.1 to 3. The police also drew the panchanama and rough sketch which are Exs.P3 and P4. During cross-examination, she admitted that the police shown her MOs.1 to 3 before seizing and later they took away.
22. PW.7 is the panch witness for the inquest panchanama. She did not support the case of prosecution and, therefore, she was declared hostile by learned Additional Public Prosecutor and cross-examined her. During cross-examination, she admitted that after coming to know about the death of deceased, she visited the Osmania General Hospital Mortuary and saw the dead body of the deceased. The deceased died due to burn injuries from head to toes. She came to know through the persons present there that the deceased received injuries in the hands of one Raju while she was residing with him and the Raju poured kerosene on her and set fire.
i) During cross-examination by learned counsel for the accused, she admitted that she noticed the burnt cloths over the body of the deceased at the time of her visit to the hospital.
23. PW.8 is another panch witness for the inquest panchanama. Since PW.7 was turned hostile, the prosecution examined another panch. Even this witness (PW.8) also did not support of prosecution case and, therefore, he was also declared hostile and cross-examined him by learned Additional Public Prosecutor.
24. PW.9 is also a panch witness for confessional statement of accused. He deposed that he is a resident of NTR Nagar, L.B. Nagar. He used to go to L.B. Nagar police station with regard to some work of their locality. In that connection the police obtained his signatures on some written papers informing that they have apprehended a person who is involved in a murder case committed in their locality and that recorded the confession of that person. Hence, he put his signatures on the papers. The signatures shown to him on the confession panchanama are Exs.P9 and P10. At this stage, learned Additional Public Prosecutor declared him hostile and cross-examined him. During cross-examination, nothing useful was elicited from this witness. However, the defence counsel reported no cross-examination.
25. PW.10 is another panch witness for confessional statement. He also deposed on the lines deposed by PW.9. However, he identified his signatures as in Exs.P11 and P12. Since this witness also did not support the case of prosecution, he was declared hostile and cross-examined him by learned Additional Pubic Prosecutor. Even in the cross-examination, nothing useful was elicited from him.
26. PW.11 is the Assistant Professor. He conducted autopsy over the dead body of the deceased, wherein he found ante mortem Derma Epidermal, mixed burns present on the face, neck, both upper limbs, front of chest, front of left thigh and front of right thigh. The burns are blackish red in colour. According to him, the deceased died on 15.01.2013 at 7.30 P.M. in Osmania General Hospital while undergoing treatment. The cause of death was due to burns. The percentage of burns is 50% approximately. Ex.P13 is the post-mortem examination report. During cross-examination, he admitted that he has not mentioned the percentage of burns. The burns of the deceased were second degree of burns.
27. PW.12 is the III Metropolitan Magistrate, Nampally, Hyderabad. He deposed with regard to recording of dying declaration of the deceased. According to him, he identified the patient through concerned police constable of L.B. Nagar Police Station and after sending all of them out from the view of the patient, he proceeded to record her statement. Initially, he put simple questions to know the mental condition of the injured. After giving answers, he was satisfied with regard to the fit condition of the patient and accordingly he obtained endorsement of Duty Doctor at the end of the preliminary questions put and recorded by him. Then he asked about the reason for receiving the burn injuries. The patient Andalu stated before him that one Raju burnt her while she was going to her husband. She stated that the said Raju is the native of Beedhar and working in Fruit Market, Kothapet and he poured kerosene up on her and lit fire. She also stated that she wants to visit her husband and then she intended to join her husband and then the said Raju burnt her while she was intended to go to her husband. She stated that the said Raju burnt her in a house nearby NTR Fruit Market. Later he read over the contents to the patient and obtained her thumb mark on the declaration. He also obtained the LTI of the patient accordingly. The doctor present along with him, mentioned at the end of the statement that the patient was conscious and fit state of mind during the course of recording dying declaration. Accordingly, he completed the dying declaration at 9.30 P.M. of 13.01.2013 at Osmania Hospital. Ex.P14 is the dying declaration recorded by him.
i) During cross-examination, he admitted that he has not mentioned the name of Station House Officer, who gave requisition for recording dying declaration. The age of the deceased is not stated by the victim. The declaration stated the name of the culprit as Raju and no descriptive particulars of age. The declarant gave answers to his questions.
28. PW.14 is the Sub-Inspector of Police, L.B. Nagar, deposed with regard to receipt of information from Osmania General Hospital outpatient with regard to admission of Andalu (deceased) in burns ward. He visited the Hospital, identified the patient and recorded her statement. He read over the contents of the statement to victim and then he took her right thumb impression as she sustained with burn injuries over her body including her hands and she could not put signature. Basing on the same, he registered a case in Crime No.56 of 2013 and issued Ex.P16 FIR. Ex.P17 is the printed FIR sent to the Committal Court. He also took steps for recording the dying declaration of deceased by the Magistrate. He also visited the scene of offence and conducted the scene of offence panchanama and rough sketch in the presence of PW.6 and LW.12. He seized MOs.1 to 3. On 15.01.2013 at about 7.30 P.M., he received information from Osmania General Hospital about the death of the deceased while undergoing treatment. Basing on the said information, he handed over the CD file to PW.13.
29. PW.13 is the Inspector of Police, L.B. Nagar, deposed that he took up investigation from PW.14. On receipt of information about death of deceased, he altered section to 302 of IPC. He took steps for conducting inquest panchanama over the dead body of the deceased in the presence of PWs.7 and 8. He also took steps for conducting autopsy over the dead body of the deceased. Thereafter, the accused confessed the commission of offence in the presence of PWs.9 and 10 as in Ex.P15. Thereafter, he arrested the accused. After completion of investigation, he laid the charge sheet.
30. In view of the aforesaid testimonies of prosecution witnesses and re-appraisal of the same, it is clear that the evidence of PW.1 - the house owner is quite significant though she is not an eyewitness to the actual act of pouring kerosene and setting the deceased on fire. Her testimony falls within the category of a natural and independent witness. She had no apparent motive to falsely implicate the accused and her presence at the scene is fully explained as she responded immediately upon hearing the cries. Therefore, high credibility can be attached to such witness because her conduct is spontaneous and consistent with normal human behaviour. Though she did not see the act of burning, her evidence is crucial in establishing the circumstantial chain. She reached the spot immediately, found the deceased in flames, attempted to save her and importantly observed the accused fleeing from the scene. The act of fleeing is a relevant conduct under Indian Evidence Act, 1872 as it indicates a guilty mind and can be taken as an incriminating circumstance when considered along with other evidence.
31. The evidentiary value of PW.2 is also important, though similar to PW.1 he is not a direct witness to the actual act of setting the deceased on fire. PW.2 can be treated as a natural witness whose presence at the scene is explained by his immediate response to the cries of the victim. His testimony that he saw the deceased in flames soon after the incident helps in establishing the time and place of occurrence, thereby supporting the prosecution case that the incident happened in the manner alleged. His admission in cross-examination that PW.1 was also present strengthens the credibility of both witnesses, as it shows consistency and mutual corroboration between independent witnesses. Thus, the evidence of PW.2 corroborates the evidence of PW.1.
32. The evidence of PW.3, the photographer, also corroborates the prosecution case with regard to finding empty kerosene tin, match box and partly burnt saree piece etc., at the scene of offence and thereby strongly supports the prosecution version that the deceased was set on fire using kerosene. Therefore, his evidence is also relevant in the case on hand as it corroborates other oral testimonies, particularly the dying declaration and the statements of PW.1 and PW.2 regarding the burning incident. In essence, PW.3’s testimony does not directly prove who committed the offence, but it plays a crucial role in corroborating the manner of occurrence, strengthening the prosecution case by providing reliable, visual, and physical support to the chain of circumstances.
33. Coming to the evidence of PW.4, who is husband of the deceased, the same also corroborates the evidence of PWs.1 and 2 with regard to the deceased died due to the injuries. Nothing useful was elicited during cross-examination of PW.4. However, it was elicited that no report was given by him with regard to missing of his wife/deceased. The mere fact that PW.4 did not lodge a police report about his wife missing is not fatal to the prosecution case. Such an omission by itself does not discredit the overall evidence, especially when there is other material on record explaining the circumstances of missing, the incident and the cause of death of the deceased. It may at best be a lapse, but it does not undermine the core prosecution case if the remaining evidence is otherwise reliable and consistent.
34. The evidence of PW.5, the mother of the deceased, testified that upon receiving a phone call from her son-in-law (PW.4), she immediately went to the hospital where her daughter had been admitted with burn injuries. On reaching the hospital and making enquiries, she spoke directly with her daughter, who clearly stated that the accused had poured kerosene on her and set her on fire. This statement made by the deceased while she was undergoing treatment assumes significance as it directly implicates the accused in the commission of the offence. PW.5 further deposed that there had been prior quarrels and disputes between the deceased and the accused, thereby indicating the existence of a strained relationship and a possible motive for the incident. Her testimony not only speaks to the immediate cause of the burn injuries as narrated by the victim herself, but also provides background circumstances that support the prosecution case. On the basis of what her daughter conveyed to her and the surrounding circumstances, the mother categorically asserted that the accused was responsible for causing the burn injuries which ultimately led to her daughter’s death.
35. Perusal of the evidence of PW.6 would reveal that the police conducted a scene of offence inspection in their presence, thereby lending authenticity and transparency to the investigative process. During such inspection, they observed clear signs indicative of a fire incident, including visible flame or burn marks within the room, which suggested that the occurrence had taken place at that very location. She further stated that certain material objects connected with the incident were found at the scene, namely burnt pieces of a saree, a plastic tin containing kerosene and a match box. These items are significant as they corroborate the prosecution case regarding the manner in which the offence was committed. The police, in the presence of the panch witnesses, seized these articles by following due procedure. Further, the police prepared a panchanama documenting the condition of the scene, the observations made and the articles seized. A rough sketch of the scene of offence was also drawn to depict the layout and relevant features of the place. Thus, the panch witness confirmed that all these procedures were carried out in their presence, thereby supporting the credibility of the investigation and the recovery of material objects.
36. PW.7 and 8 are the panch witnesses relating to the inquest were declared hostile by the prosecution as they did not fully support the case in their chief examination. Consequently, the learned Additional Public Prosecutor cross-examined them to elicit the truth. During such cross-examination, PW.7 admitted certain material aspects. She admitted that upon learning about the death of the deceased, she went to the hospital mortuary and saw the dead body. She observed that the deceased had sustained extensive burn injuries covering the entire body from head to toe, thereby confirming the severity and nature of the injuries. Although, she did not directly support the prosecution version in full, she further admitted that she came to know from persons present at the mortuary that the deceased had suffered those injuries while she was staying with the accused, and that the accused had poured kerosene on her and set her on fire. While this part of her testimony is in the nature of hearsay, her admissions regarding visiting the mortuary and noticing the extensive burn injuries lend some corroboration to the medical and other evidence on record. Her being declared hostile does not render her entire testimony unreliable; rather the portions that support the prosecution case and are otherwise credible can still be taken into consideration.
37. In contrast, PW.8 did not support the prosecution case at all. Even during cross-examination by the learned Additional Public Prosecutor, he did not support the case of prosecution. Thus, while the evidence of PW.7 can still be relied upon to the extent it supports the prosecution during cross-examination; the evidence of PW.8 does not advance the prosecution case in any manner. Nonetheless, as inquest panchanama is only a procedural aspect and not substantive evidence, the failure or non-support of one or more panch witnesses is not by itself fatal, if the prosecution is otherwise able to establish its case through reliable and cogent evidence on record.
38. Perusal of evidence of PWs.9 and 10 would reveal that when shown the confessional panchanama, they identified their signatures appearing thereon as marked as Exs.P9 to 12 respectively. However, they did not speak about the contents of the confession, nor did they affirm that the accused voluntarily made any statement in their presence. Their evidence suggests that they signed the documents at the instance of the police, without having personal knowledge of the actual recording of any confession. In view of their failure to support the prosecution version regarding the manner and voluntariness of the alleged confession, they were declared hostile by the learned Additional Public Prosecutor and were cross-examined. However, even during such cross-examination, no material was elicited to substantiate the prosecution case or to establish that the confession was made in their presence in accordance with law. Thus, the evidence of PWs.9 and 10 does not advance the prosecution case insofar as the proof of the confessional statement is concerned, except to the limited extent of identifying their signatures on the document. In the absence of supporting evidence from PWs.9 and 10, the panch witnesses to the alleged confessional statement, is not by itself fatal to the prosecution case.
39. It is a settled principle of law that a confession made to the police is not substantive evidence, except to the limited extent permissible under law and its evidentiary value is already weak unless properly proved in accordance with legal requirements. Therefore, notwithstanding the fact that both the panch witnesses to the confessional statement turned hostile, the prosecution case does not fail. The remaining evidence on record is sufficient to prove the guilt of the accused beyond reasonable doubt.
40. Apart from the aforesaid evidence, there is also medical evidence. According to the testimony of PW.11, the deceased sustained ante-mortem derma-epidermal mixed burns affecting multiple parts of the body, including the face, neck, both upper limbs, front of the chest, and front of both thighs. The burns were described as blackish-red in colour, indicating that they occurred while the deceased was alive. The doctor further stated that the burns were second-degree burns and in his assessment, covered approximately 50% of the body, although he admitted during cross-examination that the exact percentage was not recorded in the post-mortem report (Ex.P13). Importantly, he confirmed that the deceased died on 15.01.2013 at 7:30 P.M. in Osmania General Hospital, Hyderabad, while undergoing treatment, and that the cause of death was due to burn injuries. Thus, overall, the medical evidence not only confirms the cause of death as burn injuries, but also supports the prosecution case that the injuries were deliberate and sufficient to result in death. This makes it a key pillar in proving the guilt of the accused.
41. Now, coming to the evidence of PW.14 and PW.13, Sub-Inspector and the Inspector of Police, whose evidence demonstrates that the investigation was conducted in accordance with the procedure laid down under law. Upon receiving information from the hospital regarding the admission of the deceased with severe burn injuries, PW.14 promptly visited the hospital, recorded the statement of the deceased and registered the FIR. Recognizing the gravity of the situation, he requisitioned the Magistrate to record the dying declaration, which was carried out in accordance with legal requirements, ensuring that the deceased was conscious, mentally fit, and her statement was voluntary. Following this, the PW.14 visited the scene of the offence, in the presence of panch witnesses, he observed signs of fire and seized material objects, including a kerosene tin, burnt saree pieces and a matchbox and the same were recovered and seized. After the death of the deceased, the Sub-Inspector handed over the Case Diary to the Inspector of Police (PW.13), who altered the Section of law to reflect the commission of murder, conducted the inquest in the presence of the doctor and panch witnesses and later recorded the alleged confessional statement of the accused. The accused was subsequently arrested and upon completion of the investigation, a charge sheet was laid. Thus, the testimony of both Officers establishes the completeness and credibility of the investigation, showing that all crucial steps from registration, recording the dying declaration and seizure of evidence to the inquest and arrest were properly followed. Even though the panch witnesses for the confessional statements did not support the prosecution, the investigation ensured that other independent and corroborative evidence was collected and preserved providing a strong foundation for proving the guilt of the accused.
42. The evidence of PW.12, the Magistrate, relates to recording of the dying declaration of the deceased, which is a crucial piece of evidence in this case. According to his testimony, he first identified the patient through the police constable and ensured that all other persons were kept out of her view to maintain the voluntariness and confidentiality of her statement. He then asked preliminary questions to assess the mental and physical condition of the deceased. After being satisfied that she was conscious and mentally fit, he obtained the endorsement of the duty doctor as required before proceeding to record the dying declaration.
43. It is contended by learned counsel for the appellant - accused that in the dying declaration, the deceased uttered the name of the person who poured kerosene upon her as “RAJU”, whereas the name of the appellant - accused is Kandugudu Jayawanth and that the said “RAJU” is not as that of the appellant - accused. Perusal of Ex.P14 - dying declaration would reveal that the deceased stated that one “RAJU” had burnt her with kerosene while she was intending to go to her husband. She described “Raju” and he hails from Bidar working in the Fruit Market and identified the location of the incident as a house nearby the Fruit Market. She stated that “Raju” poured kerosene on her and set her on fire. The Magistrate read the declaration back to the deceased. He also confirmed that the doctor present during the recording verified that the patient was in a fit state of mind and capable of making a conscious statement. During cross-examination, the Magistrate admitted minor formal omissions, such as not mentioning the name of the Station House Officer who requisitioned the recording, the age of the deceased or descriptive particulars of the accused. Importantly, the deceased only referred to the accused as “Raju”, whereas his full name is “Kandugudu Jayawanth. He is also called with two more names as “Raju” and “Jayappa”. The defense has tried to exploit this minor discrepancy contending that “Raju” may not be the accused, suggesting a possible misidentification. However, this argument is weak for several reasons, such as, all other prosecution witnesses, including the husband, mother of the deceased and other witnesses referred to the accused as “Raju.” This consistency shows that “Raju” as mentioned in the dying declaration clearly refers to the accused; the deceased described specific facts about the accused, including his native place (Bidar) and place of work (Fruit Market), which match the accused profile; the Magistrate confirmed that the deceased was conscious, mentally fit, and aware of the act when making the declaration.
44. As per law, a dying declaration is considered highly reliable and requires no corroboration, though corroboration strengthens the case. It is well-settled in criminal jurisprudence that dying declaration is a substantive piece of evidence and can form the basis for conviction. Its credibility depends on the state of mind, voluntariness and consistency with other evidence, all of which are satisfied in this case. Thus, the dying declaration directly implicates the accused as the person who caused the fatal burns. The minor discrepancies pointed out by the defence are formal in nature and cannot undermine the substance of the declaration.
45. In Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh ((2007) 15 SCC 465), the Apex Court also considered the evidentiary value of the dying declaration. Paragraph Nos.22 to 26 of the said judgment are relevant and the same are extracted as under:
“22. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.
23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his creator.
24. There is a legal maxim “nemo moriturus praesumitur mentire” meaning, that a man will not meet his Maker with a lie in his mouth. Woodroffe and Amir Ali, in their Treatise on Evidence Act state:
“when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross-examination are dispensed with”.
25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.
26. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition—mentally and physically—to make such statement.”
46. In Paniben v. State of Gujarat ((1992) 2 SCC 474), the Apex Court while holding that a dying declaration is entitled to great weight however cautioned to note that the accused has no power to cross-examination. Paragraph No.18 of the said judgment is relevant and the same is extracted as under:
“18. … Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416]; Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] .)
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] .)
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021] )
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617] .)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] .)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519].)”
47. In Nallapati Sivaiah (Supra), the Apex Court placing reliance on the principle laid down by its Constitution Bench in Laxman v. State of Maharashtra ((2002) 6 SCC 710) in paragraph No.52 held that the dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration—be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.
48. In Uttam v. State of Maharashtra ((2022) 8 SCC 576), the Apex Court also considered the evidentiary value of dying declaration. In paragraph no.15 of the said judgment, the Apex Court held as under:
“15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion.”
49. In Sher Singh v. State of Punjab ((2008) 4 SCC 265), the Apex Court held that acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.
50. In the light of the aforesaid principle and combined with other evidence, such as medical report and eyewitness testimony, the dying declaration is a strong and independent proof of the accused’s guilt. Therefore, the prosecution successfully proves that the accused committed the aforesaid offence.
51. Learned trial Court has properly appreciated the evidence on record and rightly convicted the accused for the charge under Section - 302. There is no perversity, illegality, or mis-appreciation of evidence warranting interference by the High Court. Accordingly, the conviction and sentence imposed by learned trial Court deserve to be confirmed and the appeal is liable to be dismissed.
52. The present Criminal Appeal is accordingly dismissed confirming the conviction and sentence of imprisonment recorded and imposed against the appellant - accused vide judgment dated 28.04.2016 in S.C. No.760 of 2013 by learned Additional Metropolitan Sessions Judge, Cyberabad at L.B. Nagar.
53. The appellant - accused is on bail vide order dated 19.12.2022 in I.A. No.1 of 2022 in Crl.A. No.757 of 2017. Therefore, the appellant - accused is directed to surrender before learned Additional Metropolitan Sessions Judge, Cyberabad at L.B. Nagar, within one (01) month from today for serving out remaining sentence of imprisonment. If he fails to surrender, learned Additional Metropolitan Sessions Judge, Cyberabad at L.B. Nagar, shall take necessary steps in accordance with law.
As a sequel thereto, miscellaneous applications, if any, pending in this appeal shall stand closed.
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