ONGOLE RAVIKANTHversusSTATE OF A.P.

                            [2009] 10 S.C.R. 155


                            ONGOLE RAVIKANTH                                A
                                   v.
                              STATE OF A.P.
                  (Criminal Appeal Nos. 840-841 of 2003)

                               JUNE 17, 2009
                                                                            B
           [B. SUDERSHAN REDDY AND AFTAB ALAM, JJ.]

            PENAL CODE, 1860:

             s.304(part-I) - In the course of quarrel, wife fetched         C
        kerosene and a match box and poured kerosene on herself
        - Husband lit the match stick resulting in fire - Death of wife
        by bum injuries - Conviction of husband by trial court u/s 324
        - Altered by High Court into s.304(part-li- Held: Accused
        knew that deceased was drenched with kerosene yet he
   •    indulged in the cruel act of lighting the match stick - It cannot   D
        be said that he was not aware that his act was likely to cause
        serious bum injuries to deceased - Since State has not filed
        appeal against acquittal of accused uls 302, the lenient view
        taken by High Court in convicting the accused u/s 304 (part-
        /) with 7 years R.I. affirmed - Dying declaration.                  E

             EVIDENCE

.> :(        Dying declaration - Conviction based on - Held : A dying
        declaration can form the sole basis for conviction - In the
                                                                            F
        instant case statement was voluntarily made without any
        coercion or tutoring by anyone - It was natural and coherently
        made by deceased in a fit state of mind - There is no reason
        not to accept the dying declaration.

             The appellant faced trial for commission of offences           G
        punishable uls 498-A and 302 IPC. The prosecution case
        was that after about one and a half years of the marriage
        of the appellant, differences arose between the couple
        because of the wayward habits of the appellant resulting
                                    155                                     H
    156     SUPREME COURT REPORTS           [2009] 10 S.C.R.


A in frequent quarrel. On the specified night a quarrel took         i
  place between the couple. The wife, hurt by the behaviour
  of the husband, went to the kitchen and fetched kerosene
  and a match box. She poured kerosene on herself. The
                                                                         --
  appellant-husband snatched the match box from her and
B lit a match stick as a result of w'1ich her clothes caught
  fire. She was taken to the hospital with 60% burn injuries.
  Later, she succumbed to her injuries. The trial court
  convicted the appellant u/s 324 IPC. On appeal, the High
  Court converted the conviction into one u/s 304 (part-I)
  IPC and sentenced the accused to 7 years R.I.
c
      In the instant appeals filed by the accused, it was
  contended for the appellant that according to the
  prosecution case itself, it was the deceased who poured
  kerosene on herself and came with a match box. It was
D submitted that in the circumstances the High Court erred
  in convicting the appellant.
                                                                •

       Dismissing the appeals, the Court

       HELD: 1.1. The incident took place in the house of
E the appellant. PW-4, the father of the appellant, stated in
  his evidence that the deceased rushed out of the
  bedroom crying loudly. He extinguished the fire by
  pouring water on the deceased and covered her with a
  bed sheet. The prosecution case rests upon the dying
F declaration (Ext.P-4) recorded by PW-2, the Judicial
                                                                )I

                                                                         -
  Magistrate. [Para 8] [162-8-D]

       1.2. The deceased in her dying declaration stated that
  the appellant used to quarrel with her whenever she
G questioned him about his illegal and immoral activities of
  having illicit intimacy with some women. The deceased
  in clear and categorical terms stated that she poured         ~
  kerosene on herself and it was the appellant who lit the
  match stick resulting in fire and causing 60% burn
H
                             ONGOLE RAVIKANTH v. STATE OF A.P.               157


            't        injuries which ultimately led to her death. The appellant A
                      instead of preventing the deceased from pouring·
(
    "                 kerosene upon herself, lit the match stick resulting in fire
                      and causing burn injuries. The appellant knew very well
                      that the deceased was drenched with kerosene, yet, he
                      indulged in the cruel act of lighting the match stick. In the B
                      circumstances, it cannot be said that the contents in
                      dying declaration (Ex.P-4) do not disclose the
             v        commission of any offence by the appellant. It cannot be
\.                    said that the appellant was not aware that his act was
                      likely to cause the serious burn injuries to the deceased. c
                      [Paras 10 and 15) [163-C-D; 165-F-H; 166-A-B]

                           2.1. A dying declaration can form the sole basis for
                      conviction but, at the same time, due care and caution
                      must be exercised in considering the weight to be given
                      iin dying declaration. There is no doubt whatsoever that      D
                      tile statement by the deceased was voluntarily made
                      without any coercion or tutoring of anyone. The
                      statement is natural and coherently made by the
                      deceased in a fit state of mind. There is nothing on record
                      to doubt the evidence of PW-2, the Judicial Magistrate,       E
                      who recorded the dying declaration, and the duty doctor
                      (PW-13), who certified that the deceased was in a fit state
                      of mind to make her statement. Except PW-2 and PW-13
    ,....        .    no other individual was present when the victim made the
                      statement. There is no reason whatsoever not to accept        F
                      the dying declaration.[Paras 14 and 15) [164-G-H; 165-A-
                      8-D-F]

                           Smt. Paniben Vs State of Gujarat 1992 (2) SCC 474; K.
                      Ramachandra Reddy and Anr. Vs. The Public Prosecutor
                                                                                    G
                      1976 (3) SCC 618; Darshan Singh@ Bhasuri & Ors. Vs State
                 J.   of Punjab 1983 (2) SCC 411; Kanchy Komuramma Vs State
                      of A.P. 1995 Supp. 4 SCC 118; Maniram Vs State of M.P.
                      1994 Supp. 2 SCC 539; Laxman VS State of Maharashtra
                                                                                    H
        "
    158       SUPREME COURT REPORTS            [2009] 10 S.C.R.


A 2002 (6) SCC 710 and Na/apati Sivaiah Vs Sub-Divisional
                                                                      ~
  Officer, Guntur, A.P. AIR 2008 SC 19, referred to
                                                                          ""
       2.2. The appellant in fact was charged with offences
  punishable u/ss 498-A and 302 IPC. But, the State did not
  file any appeal against acquittal of the accused of the
B
  offence u/s 302 IPC. The High Court took a very lenient
  view in convicting the appellant for the offence
  punishable u/s 304 (part-I) IPC and sentencing him to
  undergo rigorous imprisonment only for a period of 7                •
  years. In the circumstances, the conviction and the                         '
c sentence   are confirmed. [Para 15 and 16) [166-8-D)

                        Case Law Reference:
          1992 (2) sec 474       referred to          para 14
D         1976 (3) sec 618       referred to         para 14
                                                                  •
          1983 (2) sec 411       referred to         para 14
          1995 Supp. 4 SCC 118 referred to           para ·14

E       1994 Supp. 2 SCC 539 referred to             para 14
        2002 (6) sec 110        referred to          para 14
        AIR 2008 SC 19          referred to          para 14

      CRIMINAL APPELLATE JURISDICTION : Criminal
F Appeal Nos. 840-841 of 2003.
                                                                  "       -
        From the Judgment & Order dated 19.11.2002 of the High
    Court of Andhra Pradesh at Hyderabad, in Criminal Appeal
    Nos. 1613 of 1997 and 1461 of 1998.
G
        A.D.N. Rao (for A. Subba Rao) for the Appellants.

        Prabhakar Rao, Voruganti, Altaf Fatima and D. Bharathi
    Reddy for the Respondents.

H       The Judgment of the Court was delivered by
              ONGOLE RAVIKANTH v. STATE OF A.P.                        159


            B.SUDERSHAN REDDY, J. 1. The appellant has                        A
      preferred these appeals against the judgment of the High Court
      of Andhra Pradesh passed in Criminal Appeal No. 1613 of
      1997 and Criminal Appeal No. 1461 of 1998 whereby the High
      Court altered the judgment of conviction against the appellant,
      recorded under Section 324 IPC by the Sessions Court, Guntur            8
      in Sessions Case No. 274 of 1976. The High Court while
      setting aside the conviction and sentence under Section 324
      IPC convicted the appellant for the offence punishable under
      Section 304 Part I of the Indian Penal Code (IPC) and
      sentenced him to undergo rigorous imprisonment for seven                C
      years.

             2. The prosecution story, briefly stated, is that the deceased
      was married to the appellant in the year 1994 and led marital
      life for about 1 Yi years and gave birth to a daughter in 1995.
 ~    It is alleged that even while living with his wife the accused          D
      developed illegal intimacy with other women and was found
      flirting with them and some times he used to bring those women
      to the matrimonial home. Naturally, the deceased raised serious
      objections as to the conduct of the appellant indulging in such
      immoral and objectionable activities. The appellant instead of          E
      mending his ways frequently used to taunt her saying that "you
      can also have a paramour if you want". On 11.1.1997 at about
      9.00 p.m. when both the deceased and the appellant were in
      the bedroom, the accused switched on the tape-recorder; on
      that the deceased asked him to put off the same but the                 F
      appellant did not stop it and on the contrary he slapped the
      deceased which led to a quarrel between them. The appellant
      mockingly suggested to the deceased to go away with
      someone of her choice and leave him alone. Having been hurt
      by the provocative words and the vulgar behaviour of the                G
      appellant she rushed into the kitchen and brought kerosene and
,.t   a matchbox. She poured the kerosene on herself. The appellant
      obviously havihg snatched the match box from her lit the match
      stick and threw the same on the deceased resulting in severe
      burns to her vital organs of the body. Immediately, the deceased        H
    160       SUPREME COURT REPORTS                 [2009] 10 S.C.R.


A came out of the bedroom with flames crying loudly. On hearing
  the cries and on seeing her in flames, the father of the appellant
  and other neighbours poured water on her body and covered
  her with a bed sheet. In the meantime, the appellant arranged
  an auto and took her to her parents' house in the same locality
8 and from there she was shifted to Government General Hospital,
  Guntur by her brother (PW-1 ).

        3. On requisition from the Hospital authorities, the Special
  Judicial First Class Magistrate, Guntur recorded her dying
  declaration in the presence of the Medical Officer. Based on
C the statement (Ex.P-4) the Police Station Pattabhipuram, Guntur
  issued First Information Report (Ex. P-16) and registered the
  same as Crime No. 2 of 1997 for the offences punishable
  under Section 498-A ~nd 307 IPC against the appellant. While
  undergoing treatment the deceased succumbed to the burn
D injuries on 18.1.1997 at 4.45 p.m. in the Government Hospital,
  Guntur. Upon receiving information the police altered the
  provisions of law into Sections 498A and 302 IPC and
  accordingly issued the altered FIR. After completion of the
  investigation, the police filed charge sheet against the appellant
E under Sections 498A and 302 IPC.

       4. The prosecution in order to establish its case against
  the appellant altogether examined 15 witnesses (PW-1 to PW-
  15) and 21 documents were got Exhibited (Ex. P-1 to P-21).
F The appellant pleaded of his false implication in the case.

        5. The learned Sessions Judge upon appreciation of the
  evidence available on record held that prosecution established
  its case beyond doubt that the appellant lit the match stick when
  the deceased herself poured kerosene on her body. However,
G the learned Sessions Judge came to the conclusion that the
  appellant had no intention to kill his wife. In the result, the learned
  Sessions Judge held that in the circumstances it cannot be said
  that the appellant was having any knowledge that the burn
  injuries were likely to cause the death of the deceased. But his
H act would certainly cause hurt to a person and accordingly found
        ONGOLE RAVIKANTH v. STATE OF A.P.                   161
            [B. SUDERSHAN REDDY, J.]
the appellant guilty under Section 324 IPC. We must express        A
our anguish about the manner in which the learned Sessions
Judge has dealt with the matter.

      6. The appellant as well as the State preferred appeals
 against the judgment of the learned Sessions Judge. The High
                                                                   8
 Court upon re-appreciation of the evidence and more
 particularly relying upon the evidence of PWs -1, 3 and 4
 coupled with the dying declaration (Ex. P-4) held that there
 were serious disputes b!=!tween the appellant and his wife with
 regard to the wayward habits of the appellant resulting in
frequent quarrels between them which led to the incident on the    C
fateful day. The High Court also found the appellant himself put
 her on fire which resulted in causing 60% burns all over the
body and more particularly on vital parts resulting in death of
the deceased. The High Court found the incident took place on
the "spur of the moment" due to quarrel that had developed in      D
the bed room due to which the deceased poured kerosene on
herself, the accused lighted the match stick which ultimately
resulted in her death. In the result, the High Court found the
appellant guilty of the offence punishable under Section 304
Part I IPC and sentenced him to undergo rigorous imprisonment      E
for a period of seven years. Hence, these appeals by the
accused against his conviction and sentence under Section
304 Part I IPC. The State did not prefer any appeal though it
filed the charge sheet against the appellant for the offence
punishable under Section 498A and 302 IPC.                         F

     7. Shri A.D.N. Rao, learned counsel for the appellant
submitted that the High Court committed serious error in coming
to the conclusion that the appellant snatched the match s.tick
from the deceased and set her on fire which resulted in causing    G
60% of the burns all over the body. It was submitted that
admittedly even according to the prosecution the deceased
poured kerosene on herself and came with the match box,
thereafter what happened is a matter for guess and in the
absence of any reliable evidence, there was no justification to    H
    162       SUPREME COURT REPORTS                  [2009] 10 S.C.R.


A convict the appellant under Section 304 Part I of IPC.

          8. The short question which arises for our consideration
    in these appeals is whether the High Court committed any error
    in convicting the appellant under Section 304 Part I IPC? The
    entire prosecution story rests upon the dying declaration (Ex.
8
    P-4) recorded by the learned Judicial First Class Magistrate
    at about 11.30 p.m. on 11.1.1997. Be it noted that the incident
    had taken place on 11.1.1997 at about 10.00 p.m. in the house
    of the appellant. PW-4 who is none other than the father of the
    appellant who did not support the prosecution case on account
C   of which he was declared hostile stated in his evidence that the
    incident had taken place on 11.1.1997 at about 10 or 10.30
    p.m. in his house in the bedroom of the appellant and the
    deceased. The deceased rushed out of the bedroom crying
    loudly. He extinguished the fire by pouring water on the body
D   of the deceased and covered her with a bed sheet. The
    appellant took the deceased in an auto to her parents house
    and thereafter got her admitted in the hospital. Dr. CH.
    Raghukula Kiran (PW-13) stated in his evidence that on
    11.1.1997 at about 11.00 p.m. the deceased was brought to
E   the casualty ward with burr injuries by the appellant. He gave
    first aid to the injured and t11c1"eafter sent Ex. P-3 requisition to
    the Judicial First Class Magistrate (PW-2). According to him
    PW-2 came to the casualty ward of the hospital and recorded
    the statement of the deceased. He was present at the time of
F   recording of the statement and found that the deceased was
    conscious and coherent at the time of recording her statement
    by PW-2. He made an endorsement on the statement recorded
    by PW-2 to the effect that the patient was conscious and
    coher.ent and she was in a fit condition to give the statement.
G   Ex. P-14 is the endorsement made on Ex. P-4.

        9. PW-2, the Judicial First Class Magistrate in his
    evidence in clear and categorical term stated that having
    received the requisition from the hospital authorities on
    11.1.1997 at about 11.20 p.m. he proceeded to casualty ward
H
           ONGOLE RAVIKANTH v. STATE OF A.P.                        163
               [B. SUDERSHAN REDDY, J.)
    of the hospital and reached there at about 11.30 p.m. The duty          A
    doctor PW-13 was present at that time. In order to satisfy
    himself as to whether the deceased was in a fit condition to
    make her statement put some preliminary questions. Having
    been satisfied that she was in a fit state· of mind to give
    statement proceeded to record the dying declaration (Ex. P-4)           B
    as per her narration. He obtained the left thumb impression of
    the deceased on Ex. P-4. In the cross examination he stated
    that the deceased narrated the entire statement without any
    break or stop and the actual words as stated by the deceased
    were incorporated in Ex. P-4. There were no corrections in it.          c
    The duty doctor PW-13 made an endorsement to Ex. P-4 to
    the effect that the patient was in a fit condition to give statement.

         10. The deceased in her dying declaration stated in clear
    and categorical terms that the appellant used to quarrel with
    her whenever she questioned him about his illegal and immoral D
    activities of having illicit intimacy with some women. He used
    to taunt her to develop illicit intimacy with someone of her
    choice. It may be relevant to extract the relevant portion from
'   her statement recorded by the Judicial First Class Magistrate.
    which is as follows:                                            E

        "Today night during bed time he switched on the tape
        recorder. I objected for it saying that it is allergy to me.
        Then he beat me on my cheek. He advised me to develop
        illicit intimacy with sbme one and go away. On hearing it,          F
        I felt very much and brought kerosene and myself poured
        kerosene on me and brought a match stick. Then my
        husband lit the match stick. Then the time was 10 or
        10.30. Then I ran out. My father in law Ongole David
        covered me with blanket and poured water. Later I was
                                                                            G
        brought to the hospital."

                                                (Emphasis is of ours)

        11. The deceased passed away on 18.1.1997 while
    undergoing treatment in hospital at Guntur. PW-10 is the                H
     164       SUPREME COURT REPORTS               (2009] 10 S.C.R.


A Professor of Forensic Medicine, Guntur College, Guntur who
    in his evidence stated that he received a requisition from the
    Executive Magistrate to conduct the post-mortem examination
    of the dead body of the deceased. He conducted the post-
    mortem examination during which he found the following injuries:
8
           "1. 60% infected burns present over face, front of neck,
           chest and upper 2/3rd part of abdomen over all sides,
           upper limbs except dorsum of hands on both sides, left
           glutei region, part of front of middle part of both thighs.
c          2. Two venesection wounds with sutures and dressing
           present, one on the inner aspect of each ankle."

        12. Whether this evidence is not sufficient to convict the
  appellant? Shn A.D.N. Rao, learned counsel for the appellant
D did no"t make any submission as regards Ex. P-4 dying
  declaration except contending that the contents of Ex. P-4 do
  not disclose that it was the appellant who lit the match stick
  resulting in fire and causing burns on the body of the deceased.
  The submission was that courts below indulged in guess work
  in the absence of any evidence in convicting the appellant.
E                                                                        ',
       13. An objective and critical assessment of the material
  available on record discloses that requisition was immediately
  sent to the Judicial First Class Magistrate after the victim was -
  taken to the hospital at about 10.00 p.m., on 11.1.1997. The
F recording of the dying declaration by PW-2 commenced at
  about 11.30 p.m. and went on till about 11.55 p.m. It means
  the victim was speaking coherently and was in a fit condition
  to make a statement.

G        14. It is 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. It has been repeatedly held by this Court that
H
         ONGOLE RAVIKANTH v. STATE OF AP.                       165
             [B. SUDERSHAN REDDY,- J.]

 the courts have always to be on guard to see that the dying           A
 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      B
 have to look for the medical opinion. [See: Smt. Paniben Vs.
 State of Gujarat (1992)2 SCC 474, K. Ramachandra Reddy
 and ANr. Vs. The Public Prosecutor( 1976) 3 SCC 618,
 Darshan Singh@ Bhasuri & Ors. Vs. State of Punjab (1983)
 2 SCC 411, Kanchy Komuramma Vs. State of A.P. ( 1995)                 c
 Supp. 4 SCC 118, Maniram Vs. State of M.P. ( 1994) Supp.
 2 SCC 539, Laxman Vs. State of Maharashtra ( 2002) 6 SCC
 710 & Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur,
 A.P. AIR 2008 SC 19].

         15. In the light of the law laid down by this Court we have D
   critically examined dying declaration (Ex. P-4) made by the
   deceased and the surrounding circumstances. There is no
   doubt whatsoever the statement made by the deceased was
, on her own volition. It was voluntarily made without any coercion
  or tutoring of anyone. The statement is natural and coherently E
  made by the deceased in a fit state of mind. There is nothing
  on record to doubt the evidence of PW-2 who recorded the
  dying declaration and evidence of duty doctor (PW-13) who_
  certifiea that the deceased was in fit state of mind to make her
  statement. Except PW-2 and PW-13 no other individual was F
  present when she made the statement. We do not find any
  reason whatsoever not to accept the dying declaration. The
  question is whether the contents do not disclose any offending
  act by the appellant? The deceased in clear and categorical
. terms stated that she poured kerosene on herself and it was G
  the appellant who lit the match stick resulting in fire and causing
  60% burns which ultimately led to her death. The appellant
  instead of preventing the deceased pouring kerosene upon
  herself lit the match stick resulting in fire and causing burns. The
  appellant knew very well that the body of the deceased was H
    166        SUPREME COURT REPORTS              [2009] 10 S.C.R.


A drenched with kerosene yet he indulged in the cruel act of
  lighting the match stick. In the circumstances, we find it difficult
  to accept the submission that the contents of dying declaration
  (Ex.P-4) do not disclose the commission of any offence by the
  appellant. Can it be said that the appellant was not aware that
B his act was likely cause serious burn injuries to the deceased.
  The appellant was in fact charged for the offences punishable
  under Sections 498A and 302 IPC. We do not know what view
  the court would have taken had there been an appeal by the
  State as against the acquittal of the appellant under Section
c 302 IPC? Suffice it to say that the High Court took a very lenient
  view in convicting the appellant for the offence punishable under
  Section 304 Part 1 IPC and sentencing him to undergo rigorous
  imprisonment only for a period of seven years.

           16. No other point is urged.
D
         17. For the aforesaid reasons we confirm the conviction
    of the appellant for the offence punishable under Section 304
    Part I of IPC and the sentence awarded by the High Court.

           18. These appeals fail and are accordingly dismissed.
E
    R.P.                                       Appeals dismissed.