Rosamma & Ors Vs. State of Andhra Pradesh  INSC 331 (13 September
S.P.Kurdukar S.P.KURDUKAR, J.
three appellants, namely, Paparambaka Rosamma (A-1), Baduru Sashi @ Sashikala
(A-2) and Baduru Venkatesarlu (A-3) have filed this criminal appeal after
obtaining the leave of this Court, challenging the legality and correctness of
the judgment and order of conviction for offences punishable under Sections
498-A, 302 and 302/114 IPC passed by the Andhra Pradesh High Court, Hyderabad.
A-1 to A-3 and acquitted accused A-4 were put up for trial for the aforesaid
offences. The appellants, the acquitted accused and Venkata Ramana (since
deceased) are closely related to each other. A-1 is the maternal grand mother
of Venkata Ramana, A-2 is the daughter of A-1 and is married to A-3. A-4 is the
son of A-1. A-4 was married to Venkata Ramana and he happened to be the real
maternal uncle of Venkata Ramana. A-3 is also the son of sister of A-1.
marriage between A-4 and Smt. Venkata Ramana was solemnised some time in 1990
and since then she was residing at her matrimonial home. A-4 was working as a
coolie in a steel company and had constructed a thatched hut at Tenali. The hut
of parents of Smt. Venkata Ramana was situated at a short distance from the hut
of A-4 at Tenali.
and A-3 after their marriage had come to stay with A-1.
not liked by Smt. Venkata Ramana and, therefore, she was instigating A-4 to
live separately or A-2 and A-3 should be asked to leave the hut. It is the
prosecution case that A-2 and A-3 were residing in a separate portion in the
same hut. It is then alleged by the prosecution that there used to be frequent
quarrels between Smt. Venkata Ramana on one side and A-1 to A-4 on the other as
Smt. Venkata Ramana was insisting that she should stay along with her husband
separately. A-1 to A-4 were not prepared to concede to her demand and as a
result thereof, they meted out ill treatment to Smt. Venkata Ramana. It has
come on record that Smt. Venkata Ramana on the earlier occasion tried to commit
suicide, but, however, failed in her attempt.
incident in question which gave rise to the present prosecution occurred on March 4, 1994 at about 12.30 noon. It is alleged by the prosecution that when Smt. Venkata Ramana
was in her hut, A-2 and A-3 came there and picked up a quarrel with Smt. Venkata
Ramana. A-2 and A-3 then at the instigation of A-1, poured kerosene on Smt. Venkata
Ramana and thereafter they threw a lighted matchstick on her. Within a short
time, the clothes of Smt. Venkata Ramana caught fire. A-3 then poured the water
and tried to extinguish the fire. The injured was then taken to the government
hospital at Tenali where Dr. K. Vishnupriya Devi ( PW 10) examined her and
found to be in a serious condition. She sent a requisition to K.Lakshmana Rao
(PW 13), the Addl. Munsiff Magistrate, Tenali, for recording the dying
declaration. K.Lakshamana Rao (PW 13) reached the hospital at about 2.30 p.m. and recorded the dying declaration (Ex.P-14). The
injured was then shifted to Guntur Medical College, Guntur, for further treatment. The injured
succumbed to her injuries on March 9, 1994
in the hospital. Vaitheru Sambaiah (PW 2)-the father of Smt. Venkata Ramana,
lodged the first information report at Tenali police station as regards the
incident and on the basis thereof, a crime came to be registered for the
offences punishable under Sections 498-A, 307 read with Section 34 IPC. After
receipt of the information about the death of injured, offence punishable under
Section 307 IPC read with Section 34 IPC came to be altered to one under
Section 302/114 and 498-A IPC. After completing the investigation, charge sheet
came to be filed against all the four accused for the offences punishable under
Sections 498-A, 302, 302/114 IPC. The trial court framed the charges against
all the four accused, but they denied all these charges. According to them,
they are innocent and have been falsely implicated in the present crime.
the close relatives of Smt. Venkata Ramana, who could have deposed to the
ill-treatment meted out to her did not support the prosecution and turned
hostile. This list included the parents, brother and other relatives of Smt. Venkata
Ramana. Consequently, the trial court as well as the High Court could not rely
upon the evidence of these witnesses and had to consider and rely upon the
dying declaration (Ex.P- 14) and the evidence in that behalf. The dying
declaration of Smt. Venkata Ramana is at Ex. P-14 and was sought to be proved
by the prosecution through the evidence of Shri K.Lakshamana Rao (PW 13), the
Magistrate, Tenali, and Dr. K.Vishnupriya Devi (PW 10). It is, therefore,
admitted position that the judgments and order of convictions passed by the
courts below is solely based upon the dying declaration Ex.P-14. We are,
therefore, required to consider carefully the dying declaration Ex.P-14 and the
evidence of two witnesses, namely, K.Lakshamana Rao (PW 13) and Dr. K.Vishnupriya
Devi ( PW 10 ).
are conscious of the fact that the trial court and the High Court accepted the
evidence of Dr. K. Lakshamana Rao (PW 13) and Dr. K.Vishnupriya Devi (PW 10)
and held that the dying declaration Ex.P-14 is a true and voluntary and was
made by the injured while in a fit state of mind and free from any tutoring or
original dying declaration of Smt. Venkata Ramana was recorded in vernacular
(Telugu) and during the course of hearing, an admitted translation thereof was
produced before us. Since the conviction and sentence is solely based upon the
dying declaration, we deem it proper to reproduce the same:- DYING DECLARATION Declaration
of Paparabaka Venkata Ramana, W/o Srinu, Ravinder Nagar, resident of Tenali
village, Taluk-District recorded by me in the presence of Duty Doctor Sri Dr. Vishnu
Priya of Government Hospital, Tenali.
a requisition to record a dying declaration from the Medical Officer, Government Hospital, Tenali at 1.57 p.m. and
at once I proceeded to the Hospital and reached the same at 2.20 p.m. on 04.03.1994.
away all persons from the patients room except the Medical attendants with a
view to secure privacy. I put the following single questions to the declarant
to elicit answers from him with a view to know her state of mind.
is your name? A: Ramana-Venkata Ramana. Q:
is your Fathers/Husbands name? A: Srinu. Q: Which village do you belong to? A: Tenali.
Q: Do you know where you are? A: I am in the hospital. Q: Do you know that I am
the Magistrate? If not then understand that I am the Magistrate? A: I was told
so. I came to know. Q:
you make the statement? A: Yes, I will tell.
basis of answers elicited from the declarant to the above questions I am
satisfied that she is in a fit disposing state of mind to make a declaration.
What happened to you? A: Venkateswarlu Boduru and Boduru Sashi are wife and
husband. Parambaka Rosamma my grand mother poured kerosene on me. I also poured
kerosene on myself. They have burnt me with a lighted matchstick.
When, where and what happened-give details. A:
12.30 p.m. in the afternoon, Venkateswarlu and
Shashi came into my house with an electric tester used in electric repairs,
threatening to stab. Venkateswarlu came and poked me on the chest. Shashi beat
me. Both beat me.
abused me and told me to leave the house. Everyday she used to get into same
sort of quarrel. She also made others to beat me. Venkateswarlu is my grandmothers
sisters son. Shashi is his wife. They live in our house.
and Venkateswarlu poured kerosene on me.
threw lighted matchstick on me. My grandmother instigated them to burn me.
Everything was done at her instance. Kerosene was poured on me and when lit, I
went in flames. Venkateswarlu poured water. My husband was not there. He had
gone to work in the steel company. They say that I wanted to live separately.
Due to this, my husband beat me yesterday afternoon. All of them did not want
us to live separately. I have not taken any food for days. My grandmother did
not come to my rescue. I was married in 1990 when cyclone had come. I have two
children. Both are daughters. My husband is my maternal uncle. My grandmother
disliked me. Since the day of our marriage Venkateswarlu and his wife are
living with us.
you have anything further to add? A: Nothing.
children were not present in the house, they had gone out. There is nothing
more. They used to instigate my husband to beat me. Venkateswarlu is engaged in
putting up tents.
Would you like to put thumb impression or signatures? A: I will put thumb
that the patient is in consciousness state and has sound of mind to give her
declaration. She understood about the contents of her dying declaration given
that the contents of dying declaration of the deponent have been read over and
explained to her in Telugu and she admitted that the contents of dying
declaration are to be true and correct.
that except myself and duty Doctor no others were present at the patient-deponent
at the time of recording this statement from her.
the proceedings at 2.55
p.m. on 04.03.1994.
is conscious, while recording the statement.
Priya, 04.03.1994 at 3.00
After going through the evidence of K.Lakshamana Rao (PW 13) and Dr. K.Vishnupriya
Devi (PW 10) and on very careful perusal of the said document, there are some
inherent defects and improbabilities which could not persuade us to accept the
said dying declaration as a truthful and voluntary for the reasons set out
main question is as to whether she was conscious and was in a fit mental
condition to make a voluntary disclosure of the incident. Dr. K.Vishnupriya Devi
(PW 10) who was attached to Tenali Government Hospital examined Smt. Venkata Ramana on 4th March, 1994 at 1.30
p.m. She then sent a
requisition (Ex.P9) to the Magistrate Shri K.Lakshamana Rao (PW 13) to record
the dying declaration of the injured. All that Dr. K.Vishnupriya Devi has stated
is that injured was conscious but she has not deposed that the injured was in a
fit state of mind to make a statement. It has come on record that Smt. Venkata Ramana
had sustained 90% burn injuries. K.Lakshamana Rao (PW 13) who recorded the
dying declaration has made a note in Ex.P-14-the dying declaration after
putting some preliminary questions to the injured and it reads as under:
the basis of answers elicited from the declarant to the above questions I am
satisfied that she is in a fit disposing state of mind to make a declaration.
the learned Magistrate proceeded to record the dying declaration. At the end,
Dr. K.Vishnupriya Devi (PW 10) has appended a certificate saying patient is
conscious while recording the statement. The question that needs to be
considered is as to whether the Magistrate could have come to a definite
conclusion that the injured was in a fit state of mind to make a declaration in
the absence of a certificate by the doctor certifying the state of mind that existed
before recording the dying declaration? In our opinion, in the absence of
medical certification that the injured was in a fit state of mind at the time
of making the declaration, it would be very much risky to accept the subjective
satisfaction of a Magistrate who opined that the injured was in a fit state of
mind at the time of making a declaration. It is a case of circumstantial
evidence and only circumstance relied upon by the prosecution is dying
is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of
the dying declaration had certified patient is conscious while recording the
statement. It has come on record that the injured Smt. Venkata Ramana had
sustained extensive burn injuries on her person. Dr. P.Koteswara Rao (PW 9) who
performed the post mortem stated that injured had sustained 90% burn injuries.
In this case as stated earlier, the prosecution case solely rested on the dying
declaration. It was, therefore, necessary for the prosecution to prove the dying
declaration being genuine, true and free from all doubts and it was recorded
when the injured was in a fit state of mind. In our opinion, the certificate
appended to the dying declaration at the end by Dr. Smt. K.Vishnupriya Devi (PW
10) did not comply with the requirement inasmuch as she has failed to certify
that the injured was in a fit state of mind at the time of recording the dying
declaration. The certificate of the said expert at the end only says that
patient is conscious while recording the statement. In view of these material
omissions, it would not be safe to accept the dying declaration (Ex.P-14) as
true and genuine and was made when the injured was in a fit state of mind. From
the judgments of the courts below, it appears that this aspect was not kept in
mind and resultantly erred in accepting the said dying declaration (Ex.P-14) as
a true, genuine and was made when the injured was in a fit state of mind. In
medical science two stages namely conscious and a fit state of mind are
distinct and are not synonymous. One may be conscious but not necessarily in a
fit state of mind. This distinction was overlooked by the courts below.
Apart from these serious lacunas, mentioned herein above, we find some more
infirmities in the dying declaration (Ex.P-14). In the dying declaration, Smt. Venkata
Ramana had stated that A-1 to A-3 poured the kerosene on her and thereafter she
also poured kerosene on herself. Then she stated they have burnt me with a
lighted match stick. It is difficult to understand as to why she poured the
kerosene on herself. It has also come on the record that on the earlier
occasion, Smt. Venkata Ramana (since deceased) had tried to commit suicide. In
her dying declaration (Ex.P-14) she had stated I had not taken food for days.
These circumstances again are pointer to the fact that Smt. Venkata Ramana
(since deceased) was disappointed and frustrated in her married life. It is in
these circumstances, we find it difficult to accept the dying declaration
wherein all the three appellants alleged to have committed the crime. It is
difficult to understand as to why three persons poured the kerosene and again
all the three persons burnt her with a lighted matchstick. The above statements
in the dying declaration raises a reasonable doubt as to whether she was in a
fit disposing state of mind at the time when the dying declaration was
The incident in question occurred in a thatched hut. There is nothing to
indicate in the dying declaration that Smt. Venkata Ramana (since deceased) was
held by any of these appellants and/or she was prevented from running out of
the hut or prevented from raising the shouts.
huts were situated adjacent to each other. There was sufficient opportunity and
time to the injured to escape from the hut and also to raise shrieks. This we
are saying so after taking into account the sequence and the time factor, which
has been narrated, in the dying declaration.
conduct of A-3 is also relevant as he tried to extinguish the fire by putting
is unfortunate for the prosecution that the parents of the deceased as well as
other close relatives have turned hostile. A-1 is although a mother in law,
also happened to be the real grand mother of the victim. A-2 is the daughter of
A-1 and also happened to be sister of mother of the deceased. As stated
earlier, there were number of huts around the hut in question but nobody has
come forward to support the prosecution. There is also no evidence on record to
indicate that Smt. Venkata Ramana (since deceased) was meted out any ill
treatment or there was any dowry demand. The only grievance made in the dying
declaration was that she wanted to live separately but her husband was not
prepared and on that score, the husband (acquitted) had beaten her in the
after-noon on the previous day. It was then stated therein that her grand
mother disliked her. These statements in the dying declaration, in our opinion,
are not sufficient to substantiate the prosecution case that Smt. Venkata Ramana
(since deceased) was meted out with ill treatment, an offence punishable under
Section 498-A of the Indian Penal Code.
are thus unable to share the view and reasoning given by the courts below.
Consequently, we are unable to uphold the conviction and sentence inflicted
upon A-1, A-2 and A-3 by the courts below. The conviction and sentence of each
of A-1, A-2 and A-3 is accordingly quashed and set aside.
the result, the appeal is allowed. The order of conviction and sentence dated
17th June, 1996 passed by the Second Addl. Sessions Judge, Guntur and on appeal
confirmed by the High Court of Andhra Pradesh vide its judgment and order 26th
March, 1997 are quashed and set aside and the appellants (A-1 to A-3) are
acquitted of all the charges. The appellants be set at liberty forth with, if
not required in any other case. It appears that the first appellant was ordered
to be released on bail by this Court vide order dated 18th January, 1999. If she is released on bail, her bailbond
to stand cancelled.