MALLELLA SHYAMSUNDER Vs. STATE OF A.P.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1381 of 2011, Judgment Date: Oct 29, 2014
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1381 OF 2011
Mallella Shyamsunder … Appellant (s)
Versus
State of Andhra Pradesh … Respondent (s)
J U D G M E N T
KURIAN, J.:
Nemo moriturus praesumitur mentire literally means no one at the point of
death is presumed to lie. Nobody normally may lie and die for fear of
meeting his maker.
Acceptability and reliability of statement made by a person who is about to
die, which statement, in common parlance, is known as dying declaration,
has been the subject matter of several reported decisions of this Court
and, therefore, it is not necessary to add one more to the same. However,
for the purpose of understanding the first principles, we shall refer to a
Constitution Bench decision in Laxman v. State of Maharashtra[1], wherein
at paragraph-3, it is held as follows:
“3. The juristic theory regarding acceptability of a dying declaration is
that such declaration is made in extremity, when the party is at the point
of death and when every hope of this world is gone, when every motive to
falsehood is silenced, and the man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great
caution must be exercised in considering the weight to be given to this
species of evidence on account of the existence of many circumstances which
may affect their truth. The situation in which a man is on the deathbed is
so solemn and serene, is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of oath and cross-
examination are dispensed with. Since the accused has no power of cross-
examination, the courts 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, however, has always to be on guard to see that the
statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must further decide
that the deceased was in a fit state of mind and had the opportunity to
observe and identify the assailant. …”
Appellant is the first accused in Sessions Case No. 197 of 2002 on the file
of the Court of Second Additional Sessions Judge, Mahabubnagar, Andhra
Pradesh. He was sentenced to undergo rigorous imprisonment for life under
Section 302 of the Indian Penal Code (45 of 1860) (hereinafter referred to
as ‘IPC’). He was also sentenced to undergo rigorous imprisonment for one
year under Section 498A of IPC. The second accused who is the mother of the
first accused, was convicted under Section 498A of IPC and sentenced to
undergo one year rigorous imprisonment. The High Court, however, taking
note mainly of the age of the second accused, maintaining the conviction
under Section 498A of IPC, reduced the sentence to the period already
undergone.
The victim, Smt. Kalyani, since deceased, was married to the appellant on
26.04.2000. The allegation is that on account of non-payment of balance of
the promised dowry, she was being ill treated and harassed by both the
accused. On 23.08.2001, the appellant sent her out of the matrimonial home
demanding the balance amount of dowry. However, PW-1-mother of the deceased
took her to the house of the accused and gave him Rs.1,000/-, gold ear
studs, gold ring and returned; but the second accused took the postela
chain (mangalsutra) of the deceased and when PW-1 requested to return the
same, he replied that the same would be returned when PW-1 pays the balance
of the dowry. On 31.08.2001, PW-1 received a telephone call from the
appellant to the effect that the deceased had set fire to herself and she
was admitted in Srinivasa Hospital, Nagar Kurnool. In the hospital, PWs- 1
and 2 were told by the deceased that the appellant had beaten her and set
her on fire after pouring kerosene. At about 10.35 a.m., PW-10, Sub-
Inspector of Police visited the hospital and recorded the statement of the
deceased marked as Exhibit-P5 and, on the basis of it, he registered Crime
No. 104 of 2001 and he also sent Exhibit-P-6-requisition for JFCM for
recording dying declaration. On 31.08.2001 itself, PW-13, JFCM, Nagar
Kurnool visited the hospital and recorded the dying declaration marked as
Exhibit-P10. Thereafter, the deceased was shifted to Osmania General
Hospital. However, she died on 09.09.2001. PW-10, who investigated the
case, recorded the statement of PWs- 1 to 4 and others, visited the scene
of offence, prepared scene observation report-Exhibit-P7, seized the
kerosene tin(MO-1), the match box-(MO-2) and the burnt towel and the
saree-(MOs-3 and 4, respectively) and got the scene of offence
photographed. PW-11-Assistant Professor, Department of Medicine, Osmania
Medical College, conducted the autopsy and opined that the cause of death
was due to 70% burns on the body. The post-mortem report is marked as
Exhibit-P8.
The accused took a defence of total denial.
On behalf of the prosecution, PWs-1 to 13 were examined, Exhibits-P1 to P10
were marked apart from MOs-1 to 4.
The High Court, after elaborately considering the evidence on record,
maintained the conviction and sentence of the appellant. However, while
maintaining the conviction of the second accused under Section 498A of IPC,
the Court reduced the sentence to the period already undergone. There is no
appeal by the second accused.
Having regard to the evidence on record, the High Court confirmed the
finding of the Sessions Court that it is a case of homicide. For connecting
the appellant solely to the homicide, mainly Exhibits-P5 and P10 – dying
declarations were relied on in addition to the oral evidence of PWs-1 to 4.
There is no eye-witness. However, according to PW-4, the landlord, where
the appellant and his deceased wife stayed as tenants in the adjacent
room, has given evidence to the effect that on 31.08.2001, at about 08.00
or 08.30 a.m., he heard a galata (quarrel) at the residence of appellant
and some time later, he saw the deceased coming out in flames. The deceased
tried to douse the fire by pouring water on herself and the accused also
did the same. When he reprimanded the appellant, the appellant brought an
autorickshaw and shifted her to the hospital. PW-1-mother of the deceased,
PW-2-son-in-law of PW-1, PW-3-neighbour of PW-2, all had visited the
deceased in the hospital and, according to them, the deceased had told them
that the appellant had set her on fire on account of non-payment of balance
dowry. However, PW-9-Dr. Narhari, working in Government Hospital, where the
deceased was taken immediately after the burns and who administered first
aid to the deceased, had a version that on his inquiry from the deceased,
she had told him that the injuries were self-inflicted.
Exhibit-P5 is the first dying declaration recorded by the Sub-Inspector of
Police based on which the First Information Report was registered.
According to her, on 30.08.2001 also, there was a quarrel between the
appellant and the deceased regarding non-payment of the balance dowry. On
31.08.2001, at 08.30 a.m., when she tried to wake the appellant up, he beat
her with chappal on her back and, immediately thereafter, he poured
kerosene on her and set her on fire. Exhibit-P10 is the dying declaration
recorded by JFCM, Nagar Kurnool at around 01.25 p.m. on 31.08.2001. With
regard to the incident, there is no major inconsistency.
Learned Counsel for the appellant submits that the case is entirely based
on circumstantial evidence and there is no direct evidence to connect the
appellant. It is not necessary to refer in extenso to this argument for the
following reasons:
a. Exhibits-P5 and P10 – dying declarations are confidence bearing,
truthful, consistent and credible. There was no room or chance for tutoring
or prompting. Nor is there a case that it is the product of her
imagination. Though no corroboration is necessary, yet, there is evidence
of PWs-1 to 3 to whom also, the deceased is said to have narrated the
incident. There is no serious attempt in defence to shake the credibility
and reliability of the dying declarations.
b. We have seen the scene mehazar and photograph of the scene. It is a
small rented accommodation and the picture of the kitchen shows that there
was LPG gas connection and, therefore, it was not normally required to keep
kerosene in such quantity.
c. The post-mortem report refers to the following injuries:
“9. Injuries:
Ante mortem dermo epidermal burns present over lower half of face,
neck, chest, upper third of abdomen, both upper extremities, both thighs,
part of back of both legs and part of back of trunk amounting to 70% of
total body surface area.
Skin peeled off at many places over burnt area and peeled off areas
are red in colour.
Part of the burns are infected.”
(Emphasis supplied)
It is very significant to note that the antemortem dermo
epidermal burns are over lower half of face, neck and then down the body to
the legs. If one is to pour kerosene on oneself, it is the normal human
conduct to pour it over the head, and in any case, not to pour it on the
face sparing the head.
d. The indifferent conduct of the appellant, as spoken about by PW-4,
in not taking prompt action to move the deceased to the hospital is also a
situation to be taken note of.
e. There was nobody else in the house and, hence, it was for the
appellant to offer explanation as to the cause of death. His theory of
suicide, on the face of overwhelming evidence to the contrary, is not at
all acceptable.
f. Only PW-9 has given a different version regarding the injury being
self-inflicted. His version cannot be believed at all in the background of
the overwhelming evidence we have discussed above and particularly in the
background of the injuries noted in the post-mortem report.
Learned Counsel for the appellant has also made a submission that the
charge be reduced to one under Section 304 Part II.
As rightly held by the Sessions Court and the High Court, setting fire on
another person after pouring kerosene is an act likely to cause death of
such person. It is a matter of simple and common knowledge that in the
process, the victim is likely to suffer death on account of the burns.
Therefore, the offence of murder is complete and, hence, we have no
hesitation in our mind in reaffirming the conviction of the appellant under
Section 302 of IPC.
Hence, we find no merit in the appeal and it is accordingly dismissed.
..………………………J.
(VIKRAMAJIT SEN)
....……………………J.
(KURIAN JOSEPH)
New Delhi;
October 29, 2014.
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[1]
(2002) 6 SCC 710
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REPORTABLE
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9