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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.:   

1. 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.  

2. 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  

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REPORTABLE

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Constitution  Bench  decision  in  Laxman v.  State  of  

Maharashtra1, 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. …”

3. 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  

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(2002) 6 SCC 710

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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.  

4. 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  3

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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.

5. The accused took a defence of total denial.

6. On behalf of the prosecution, PWs-1 to 13 were examined,  

Exhibits-P1 to P10 were marked apart from MOs-1 to 4. 4

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7. 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.  

8. 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.  

9. 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  5

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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.   

10. 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.  

11.  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  6

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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  

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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.  

12. Learned  Counsel  for  the  appellant  has  also  made  a  

submission that the charge be reduced to one under Section  

304 Part II.

13. 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  8

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murder is complete and, hence, we have no hesitation in our  

mind  in  reaffirming  the  conviction  of  the  appellant  under  

Section 302 of IPC.  

14. 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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