IMPORTANT POINT
Where doctor did not certify before starting recording of dying declaration that patient was in fit condition but the Magistrate after putting some questions recorded that patient was in fit condition and the doctor recorded at the end that the patient was conscious during recording of declaration, it was held that certificate appended at end did not comply with requirement of law and therefore conviction cannot be made solely on basis of the dying declaration.

Headnote:(i) Indian Evidence Act, 1872-Section 32-Dying declaration-Reliability-Doctor did not certify victim was in fit condition to make statement before starting recording of statement-Magistrate put some question and then recorded that victim was in fit condition-Doctor recorded at the end that patient was conscious while recording statement-Consciousness cannot be equated to condition of fitness of mind-Condition of patient at time of recording dying declaration doubtful-Dying declaration cannot be relied upon.
       Held : The 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. P-9) 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 :-
       "On 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."
       Thereafter, 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 declaration. (Para 8)
       It 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. (Para 9)
       (ii) Indian Penal Code, 1860-Section 498A/302 - Conviction solely on basis of dying declaration-Allegation of ill-treatment and causing death by pouring kerosene oil and setting her ablaze-Prosecution witnesses turned hostile-Trial Court convicting accused persons on basis of dying declaration -Doctor not certified that victim was in fit condition to make declaration before start of recording declaration-Dying declaration cannot be relied upon-No evidence to prove allegation of ill-treatment and demand of dowry-Conviction set aside. (Paras 8 to 13)

JUDGMENT

S.P. Kurdukar, J.-The 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. Originally 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.

2. The 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. A-2 and A-3 after their marriage had come to stay with A-1. It was 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.

3. The 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.

4. All the close relatives of Smt. Venkata Ram

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