CHIRRA SHIVRAJversusSTATE OF ANDHRA PRADESH

               [201'0] 15 (ADDL.) S.C.R. 673

                     CHIRRA SHIVRAJ                               A
                              v.
              STATE OF ANDHRA PRADESH
             (Criminal Appeal No. 514 of 2010)
                   NOVEMBER 26, 2010
                                                                  B
       [P. SATHASIVAM AND ANIL R. DAVE, JJ.]

     Penal Code, 1860 - s. 304 Part fl - Death due to burn
injuries - Deceased had strained family relations with the
accused-appellant, her brother-in-law - She made a dying C
declaration before a Judicial Officer - Conviction by courts·
below on the sole basis of the dying declaration - Justification
of - Held: Justified - The dying declaration was trustworthy
and reliable and it was supported by the complaint - The
declaration was scrupulously recorded by the Judicial Officer D
who had found the deceased to be conscious and fit to make
statement - In the circumstances of the case, merely because
a second FIR was filed, it cannot be stated that the entire
investigation was defective and that should result into acquittal ·
of the accused - The first FIR was recorded on the basis of E
the statement made by the deceased when she was alive and
upon her death, which had nexus with her burn injuries, further
information was given and that was recorded as a second FIR
- The second FIR did not make the case of the prosecution
weak especially when no prejudice had been caused to the F
accused-appellant or any other person because of the
aforestated further information with regard to the death being
recorded as a new FIR - A/so, no a/legation was made to the
effect that the contents of the second FIR were incorrect or
malicious or there was any oblique motive - Besides, there G
was no fresh investigation in pursuance of the second FIR -
FIR - Second FIR.

    Evidence/Act, 1872 - s. 32 - Dying declaration -
Appreciation of - Held: If dying declaration is trustworthy and
                             673 ·                                H
   674   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A if it can be shown that the person making the statement was
   not influenced by any exterior factor and made the statement
   which was duly recorded, it can be made basis for conviction.

       The deceased had strained family relations with her
  brother-in-law, the appellant. According to the
8
  prosecution, the appellant used to regularly abuse the
  deceased and one day, as usual, when the deceased was
  being abused by the anpellant, she poured kerosene on
  herself anJ thereafter the appellant hurled a lighted match
  stick on her, because of which she was In flames and was
C severely burnt. The deceased was brought to the hospital
  by her husband.

       PW11, the Assistant Sub Inspector recorded the
  statement of the deceased at the hospital. FIR was filed
D on the basis of the statement made by the deceased
  against the appellant for commission of offence under
  Section 307 IPC. Looking to the nature of burn injuries
  suffered by the deceased, her dying declaration was
  recorded by PW10, First Class Judicial Magistrate.
E Because of the burn injuries, the deceased suffered from
  septicemia and as a result thereof she died. Therefore, the
  appellant was also charged under Section 302, IPC.

      At the time of the trial, most of the witnesses, who
  were family members of the deceased as well as the
F appellant, turned hostile. However, on the basis of the
  dying declaration (Ext.P.12), which supported the
  contents of the FIR filed by the complainant, the trial court
  convicted the appellant under Section 304 Part II, IPC and
  sentenced him to undergo simple imprisonment for five
G years. The High Court confirmed the order of conviction.
       In the instant appeal, the appellant contended that
  the trial court had erred in convicting the appellant only
  on the basis of the dying declaration. He also contended
H that though investigation in the case was mad1> under the
         '
CHIRRA SHIVRAJ v. STATE OF ANDHRA PRADESH 675


first FIR, ultimately the order, of conviction was passed in A
pursuance of t~e second FIR, which was bad in law.

     Di!?nlissina
         v      ,. '
                     the ,appeal, the Court
             \   . . '   ' '   .
   · HE'LE>:1. Tll~ order passed by the High Court
confirm•ng the order of conviction passed by the trial 8
court cannot be said to be bad in law. The trial court had
duly considered the fact that the dying declaration was
trustworthy ~nd reliable and it was supported by the
complaint and as a result th~reof~ the order of conviction
was al~o confirmed
           .         by the High c'ourt. [Para 11] [681 ·C] C
                                   '
                                   \


     2. 'If dyin'g declaration is trustworthy and .if it can be
shown that the person ·making the statement was not
influenced by any exterior factor and made the statement
which was duly recorded, it can be made basis for D
conviction. In' the instant case, immediately after the
incident, the .peceased was taken to the Government
Hospital, and upon getting information with regard to the
offence, the ASI. had rushed to the Government Hospital,
and the deceased had made her statement before him E
and thereafter she had made her dying declaration before
a judicial officer.· 'The said statement was scrupulously
recorded by the Judicial Officer who had found the
deceased to be conscious and fit to make statement.
There was no doubt with regard to the truthfulness of the
dying declaration and, therefore, it cannot be saiq that on F
the sole basis of dying declaration the order of conviction
could not have b~en passed. [Paras 12, 13] [681-D-F; 682-
D]
     Pu ran Chand v. State of Haryana 2010 (6) SCC 566 -     G
relied on.
    3.1. The first FIR was recorded on the date on which
the offence had taken place. On th~t day, Assistant Sub
                                                             H
        676   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


    A   Inspector (P .W.11) had recorded the statement made by
        the deceased, when she was admitted to the Government
        Clvil Hospital, and on the basis of the said statement the
        aforesaid FIR was recorded. At the relevant time, the
        deceased had received serious burn Injuries and,
    e   therefore, an offence an under the provisions of Section
        307 IPC had been registered. Subsequently, the
        deceased suffered from septicemia, which was caused
        due to the burn injuries and as a result thereof she
        expired. The said fact was reported by the husband of the
    c   deceased to the police authorities and thereupon the said
        fact was recorded as a second FIR. Thus, by virtue of the
        second FIR, further development which had taken place
        had been recorded. The said development was with
        regard to the death of the deceased and, therefore, an
.       offence under the provisions of Section 302 of the IPC
    0
        had been registered. [Para 15] (683-E-H]

           3.2. The second FIR was nothing but an information
      with regard to the event of death. In the circumstances,
      the contents of the so called second FIR could have been
    E incorporated in the police diary as a result of further
      information or event which had been taken place in
      pursuance of the first offence, which had been recorded
      under the first FIR. As a mater of fact, it was not necessary
      to note the same as a new FIR but simply because the
    F S.H.O made a mistake by recording it as a fresh FIR, it
      would not make the case of the prosecution weak
      especially when no prejudice had been caused to the
      appellant or any other person because of the aforestated
      further information with regard to the death being
    G recorded as a new FIR. The submission made by the
      appellant was to the effect that by adopting such a
      method, the prosecution c'" involve someone wrongly
      in the offence an.~, therefOre, such a course should not
      have been adopted and as it was adopted by the
    H p~osecution, the appellant must get benefit of such a
CHIRRA SHIVRAJ v. STATE OF ANDHRA PRADESH 677
                                                                   \

mistake by getting an order of acquittal. The aforestated      A·
submission cannot be accepted for the reason that there
Is no allegation to the effect that the contents of second
FIR are Incorrect or malicious or there was any oblique
motive behind giving further Information. The Information
which was given to the Authorities was only with regard        B
to the death of the deceased which resulted due to
septicemia and septicemia was only on account of the
burn Injuries suffered by the deceased. Also, It Is a fact
that there was no fresh Investigation in pursuance of the
second FIR. [Paras 17, 18] [684·C·H; 685-A]                    c
    3.3. Even the appellant cc•Jld not show that the
Information with regard to the death of the deceased,
which was recorded as second FIR caused any prejudice
to the accused. In the aforestated circumstances, it
cannot be stated that merely because second FIR was D
filed, the entire investigation was defective and that .
should result into acquittal of the accused. [Para 19] [685· -
C-D]

    Babubhai v. State of Gujrat & Others [Criminal Appeal      E
No.1599 of 2010; Decided by Supreme Court on 26th
August, 2010] and T. T. Antony etc. v. State of Kera/a and
others 2001 (6) sec 181 - referred to.

                    Case Law Reference:
                                                               F
    2001 (6) sec 1 s1        referred to          Para 8
    201 o (6) sec 566        relied on            Para 12
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 514 of 2010.                                               G

    From the Judgment & Order dated 3.7.2009 of the High
Court of Judicature, Andhra Pradesh at Hyderabad in Criminal
Appeal No. 579 of 2004.                                        [J_
    678    SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R


A         A.D.N. Rao, Ramesh, G. Madhavi for the Appellant.

          Aneesh, D. Mahesh Babu for the Respondent.

          The Judgment of the Court was delivered by

B          ANIL R. DAVE, J. 1. Being aggrieved by the Judgment
    and order dated 3rd July, 2009, passed in Criminal Appeal
    N·o.579 of 2004 by the Andhra Pradesh High Court, confirming
    the order of conviction passed by the trial court, this appeal has
    been filed by the appellant who has been convicted under the
c   provisions of Section 304 Part II of the Indian Penal Code and
    hes been sentenced to undergo simpla 1prisonmer.t for five
    y1:;·ars. The case of the prosec11tion i.1 a nut shell is as under.

        2. Chirra Shantha (the deceased) had strained family
  relations with her husband's brother, the appellant. There was
D a family dispute with regard to a property wherein the husband
  of the deceased and the appellant were residing and- the
  appellant wanted his brother Nagabhushanam to leave the
  property. It is alleged that the appellant used to regularly abuse
  the deceased and on 21st April, 1999, around 1.30 p.m., he
E had abm:ed the deceased to such an extent that the deceased
  was fed up with the abusive language and so as to get rid of
  the appellant for the time being, she had poured kerosene on
  herself, believing that the appellant would go away because of
  her pouring kerosene on herself but while using abusive
F language, the appellant lit his cigarette and threw the lighted
  match stick on the deceased. As a result thereof, the deceased
  was in flames and the appellant left the place by further abusing
  her and telling that she should die.

G        3. At the time when the deceased was in flames, her
     husband, Nagabhushanam arrived and upon seeing his wife in
     flames, he immediately took her to the Government Civil
    I Hospital, Nizamabad. Upon police being informed, R.
      Gangaram, Assistant Sub Inspector (P.W.11) rushed to the
                                                                     I

CHIRRA SHIVRAJ v. STATE OF ANDHRA PRADESH 679 '
             [ANIL R. DAVE, J.]
hospital and recorded the statement of the deceased. FIR                 A
No.46 of 199·9 was filed on the basis of the statement made
by the deceased against the appellant for commission of an
offence under Section 307 of IPC. Looking to the nature of burn
injuries suffered by the deceased, her dying declaration was
recorded by Mr. Narsimha Chary, First C.lass Judicial                    B
Magistrate (Special Mobile Court}, Nizamabad (P. W.10)
around 8 p.m. The deceased specifically stated in the said
                               1
statement that she was being i'!bused by the appellant and on
that day also, as usual, whe~ she was being abused, she
poured kerosene on herself and thereafter the appellanf had              c.
thrown a lighted match stick on her, because of which shewas
in flames and she was severely burnt and her husband
Nagabhushanam had brought het to the hospital.

       4. Because of the burn injuries, the de9eased suffered
 from septicemia and as a result thereof she died on 1st Au_gust, D
·1999. The said facf was brought to the notice of the authorities
 by the husband of the deceased. The said information was
 recorded as FIR No.152 of 1999 on 2nd August, 1999, Ks.a
 result of the death of t~e deceased, the appellant was---also ·
 charged under Section 302 of the IPC. At the time of the trial, E
 most of the witnesses, who are· family members of the
 deceased as well as the appellant, turned hostile. However, cm
 the basis of the dying declaration (Ext.P.12) recorded on 21st
 April, 1999, which supported the contents of the FIR filed by
 the complainant, the trial court convicted the appellant for the F
 offence punishable under Section 304 Part II of the IPC and
 sentenced the appellant to undergo simple imprisonment for five
 years.

      5. Being aggrieved by the order of conviction, the appellant       G
filed Criminal Appeal No.579 of 2004, before the High Court
of Andhra Pradesh. After hearing the concerned counsel and
upon perusal of the record, the High Court confirmed the order
of conviction passed by the trial court by the_ impugned order
    680   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A and the said order of the High Court has been challenged in
  this appeal.

       6. Mr. A.D.N. Rao, learned counsel appearing .for the
  appellant mainly submitted that the trial court had substantially
  erred In convicting the appellant only on the basis of the dying
8
  declaration. He submitted that except the dying declaration,
  there was no other evidence, and to convict a person solely on
  the basis of a dying declaration would be neither just nor legal.

        7. He also submitted that the case of the prosecution was
C based on the second FIR bearing No.152/99, which was filed
  on 2nd August, 1999, upon the death of the deceased on 1st
  August, 1999. He submitted that there could not have been a
  second FIR. According to him, investigation was made under
  the first FIR and ultimately the order of conviction was passed
D in pursuance of the second FIR, which is bad in law. He
  submitted that if filing of the second FIR is permitted, the
  sanctity of the first FIR would be lost and, therefore, the second
  FIR ought not to have been filed and as the order of conviction
  was passed in pursuance of the second FIR, the order of
E conviction is bad and it deserves to be quashed and set aside.

         8. The learned counsel appearing for the appellant relied
    upon the Judgment delivered in T. T. Antony etc. v. State of
    Kera/a and others, 2001(6) sec 181, to substantiate his case
    to the effect that there can not be a second FIR.
F
       9. On the other hand, the learned counsel appearing for
  the prosecution submitted that the order of conviction is just and
  proper and she drew our attention to the fact that the dying
  declaration was supporting the complaint, which had been filed
G on the same day, and there was nothing to doubt the dying
  declaration. According to her, the courts below had rightly relied
  upon the said dying declaration for convicting the appellant. She
  also submitted that all the witnesses were family members and,
  therefore, they did not support the prosecution case when they
H were examined. She also submitted that merely because family
 CHIRRA SHIVRAJ v. STATE OF ANDHRA PRADESH ~81
               [ANIL R. DAVE, J.]          '
members who were interested in supporting the appellant and A
had turned hostile, would not make the case of the prosecution ·
weak, especially when no infirmity could be found by the courts
below in the dying declaration, which clearly indicated that the
appellant had committed the offence.
                                                                 B
     10. We have heard the learned counsel and perused the
relevant record.

     11. In our opinion, the order passed by the High Court
confirming the order of conviction passed by the trial court
cannot be said to be bad in law. In our opinion, the trial court        C
had duly considered the fact that the dying declaration was
trustworthy and reliable and it was supported by the complaint
and as a result thereof, the order of conviction was also
confirmed by the High Court in the appeal.
                                                                          D
        12. If dying declaration is trustworthy arid if it can be shown ·
  that the person making the statement was not influenced by any.
  exterior factor and made the statement which was duly recorded, -
  it can be made basis for conviction. In the instant case,
  immediately after the incident, the deceased was taken to the E
  Government Hospital, Nizamabad and upon getting information
  with regard to the offence, the ASI had rushed to the
  Government Hospital, Nizamabad and the deceased had made
  her statement before him and thereafter she had made her
  dying declaration before a judicial officer around 8 p.m. The
                                                                          F
. said statement was scrupulously recorded by the Judicial
  Officer who had found the deceased to be conscious and fit to
  make statement. Very recently, this Court had examined
  whether a dying declaration can be the sole basis for conviction.
  After examining several judgments on the subject, this Court had
  observed in Puran Chand v. State of Haryana, 2010 (6) SCC G
  566, as under:

      "15. The courts below have to be extremely careful when
      they deal with a dying dec;laration as the maker thereof is
      not available for the cross-examination which poses a great        H
    68"2    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A          difficulty to the accused person. A mechanical approach
           in relying upon a dying declaration just because it is there
           is extremely dangerous. The court has to examine a dying
           declaration scrupulously with a microscopic eye to find out
           whether the dying declaration is voluntary, truthful, made
B          in a conscious state of mind and without being influenced
           by the relatives pres·:mt or by the investigating agency who
           may be interested in the success of in ,estigation or which
           may be negligent while recording the dying
           declaration ........ .
c          18. The law is now well settled that a dying declaration
           which has been found to be voluntary and truthful and which
           is free from any doubt can be the sole basis for convicting
           the accused .......................... "

D      13. Looking to the law laid down by this Court as stated
  hereinabove and on perusal of the record we find that in the
  instant case there was no doubt with regard to the truthfulness
  of the dying declaration and, therefore, in our opinion, it caMot
  be said that on the sole basis of dying declaration the order of
E conviction could not have been passed.

        14. So far as the submission with regard to the filing of
  second FIR is concerned, in our opinion, the said submission
  cannot be accepted. First Information Report is a report which
F gives first information with regard to any offence. There cannot
  be second FIR in respect of the same offence/event because
  whenever any further information is received by the
  investigating agency, it is always in furtherance of the First
  Information Report. Learned counsel appearing for the accused
  relied upon the judgment delivered in the case of T. T. Antony
G (supra). This Court had examined the said Judgment in the case
  of Babubhai v. State of Gujarat & Others on 26th August,
  2010, in Criminal Appeal No.1599 of 2010 (arising out of
  SLP(Crl.) No.2077 of 2010. In the said Judgment, after
  considering T. T. Antony's (supra) Judgment, this Court
H observed in para 13 as under:
CHIRRA SHIVRAJ v. STATE OF ANDHRA PRADESH 683
             [ANIL R. DAVE, J.]
    13. "....... the investigating agency has to proceed only on     A
    the information about commission of a cognizable offence
    which is first entered in the Police Station diary by the
    Officer In-charge under Section 158 of the Code of
    Criminal Procedure, 1973, (hereinafter called the Cr.P.C.)
    and all other subsequent information would be covered by         B
    Section 162 of the Cr.P.C. for the reason that it is the duty
    of the Investigating Officer not merely to investigate the
    cognizable offence reported in the FIR but also other
    connected offences found to have been committed in the
    course of the same transaction or the same occurrence            c
    and the Investigating Officer has to file one or more reports
    under Section 173 of the Cr.P.C. Even after submission
    of the report under Section 173(2) of the Cr.P.C., if the
    Investigating Officer comes across any further information
    pertaining to the same incident, he can make further
                                                                     0
    investigation, .......... "

     15. In the case in hand, the first FIR, i.e. FIR No.46/99 was
recorded on 21st April, 1999, the date on which the offence had
taken place. On that day, R. Gangaram, Assistant Sub Inspector
(P .W.11) had recorded the statement made by the deceased,           E
when she was admitted to the Government Civil Hospital,
Nizamabad and on the basis of the said statement the aforesaid
FIR was recorded. At the relevant time, the deceased had
received serious burn injuries and, therefore, offence under the
provisions of Section 307 of the IPC had been registered.            F
Subsequently, the deceased suffered from septicemia, which
was caused due to the burn injuries and as a result thereof she
expired on 1st August, 1999. The said fact was reported by the
husband of the deceased to the police authorities and
thereupon the said fact was recorded as FIR No.152/99 on 2nd         G
August, 1999. Thus, by virtue of the second FIR, further
development which had taken place had been recorded. The
said development was with regard to the death of the deceased
and, therefore, an offence under the provisions of Section 302
of the IPC had been registered.                                      H
    684   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A      16. If one looks at the facts of the case and both
  information given to the authorities, it is clear that in fact FIR
  No.46/99 was recorded on the basis of the statement made
  by the deceased when the deceased was alive and upon her
  death, which had nexus with the injuries, further information was
B given on 2nd August, 1999, and that was recorded as FIR
  No.152/99. In our opinion, it was not necessary to record
  another FIR as the death was result of septicemia which was
  due to the burn injuries.

       17. Looking to the facts of the present case, in our opinion,
C in fact the second FIR was nothing but a consequence of the
  event which had taken place on 21st April, 1999. In the
  circumstances, the contents of the so called second FIR being
  FIR No.152/99, could have been incorporated in the police diary
  as a result of further information or event which had been taken
D place in pursuance of the first offence, which had been recorded
  under FIR No.46/99.

        18. It is true that the second FIR being FIR no.152/99, had
   been lodged on 2nd August, 1999, when the report with regard
E to the death of the deceased was reported. As a mater of fact,
 . in our opinion, it was not necessary to note the same as a new
   FIR but simply because the S.H.O made a mistake by
   recording it as a fresh FIR, it would not make the case of the
   prosecution weak especially when no prejudice had been
F caused to the appellant or any other person because of the
   aforestated further information with regard to the death being
   recorded as a new FIR. The submission made by the learned
   counsel appearing for the appellant was to the effect that by
   adopting such a method, the prosecution can involve someone
G wrongly in the offence and, therefore, such a course should not
   have been adopted and as it was adopted by the prosecution,
   the appellant must get benefit of such a mistake by getting an
   order of acquittal. We do not agree with the aforestated
   submission for the reason that there is no allegation to the effect
   that the contents of second FIR are incorrect or malicious or
H
 CHIRRA SHIVRAJ v. STATE OF ANDHRA PRADESH 685
              [ANIL R. DAVE, J.]
 there was any oblique motive behind giving further information. A
 The information which was given to the Authorities was only with
.regard to the death of the deceased which resulted due to
 septicemia and septicemia was only on account of the burn _
 injuries suffered by the deceased. Be that as it may, it is a fact
 that there was no fresh investigation in pursuance of the second B
 FIR and, therefore, even the judgment delivered in the case of
 T. T. Antony (supra)-would render no help to the accused.
  ' 19. Even the learned counsel for the appellant could not
show that the information with regard to the death of the C
deceased, which was recorded as second.FIR no.152/99
caused any prejudice to the accused. In the aforestated
circumstances, we do not agree with the submission made by
the learned counsel for the appellant that merely because
second FIR was filed, the entire investigation was defective and
that should result into acquittal of the accused.                D

      20. We do not find any substance in the submissions made
. on behalf of the appellant and, therefore, the appeal is
  dismissed.

B.B.B.                                     Appeal dismissed.