Supreme Court of India
MALLELLA SHYAMSUNDERversusSTATE OF ANDHRA PRADESH
- Citation
- 2014 INSC 749
- Decided
- 29 October 2014
- Disposal
- Dismissed
- Bench
- VIKRAMAJIT SEN
Holding
The dying declarations were deemed credible and, together with forensic and circumstantial evidence, proved that the appellant’s act of setting fire after pouring kerosene amounted to murder, affirming the conviction under Section 302 IPC.
Summary
The appellant, Mallella Shyamsunder, was convicted for the murder of his wife, Kalyani, who died from extensive burns after allegedly being beaten and doused with kerosene over a dowry dispute. The deceased gave two dying declarations to a police officer and a Judicial First Class Magistrate, both of which were found to be confidence‑bearing, truthful, consistent and credible, and were corroborated by statements of relatives and forensic evidence. The post‑mortem report showed 70% dermo‑epidermal burns over the lower half of the face, neck and body, a pattern inconsistent with self‑immolation. The Court held that setting fire on another after pouring kerosene is an act likely to cause death and therefore constitutes murder under Section 302 IPC. The conviction under Sections 302 and 498A IPC was affirmed and the appeal dismissed.
Issues considered
- Whether the dying declarations recorded are reliable and sufficient to support a conviction.
- Whether the act of pouring kerosene and setting fire on the deceased amounts to murder under Section 302 IPC.
- Whether the circumstantial and forensic evidence establishes the appellant’s guilt beyond reasonable doubt.
- Whether the charge should be reduced to culpable homicide not amounting to murder under Section 304 Part II IPC.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 304 Part II, s. 498A
Subjects
murderdying declarationdowry harassmentIPC 302IPC 498Acircumstantial evidencefire settingcriminal law
Judgment
• [2014] 11 S.C.R. 597
MALLELLA SHYAMSUNDER A
v.
STATE OF ANDHRA PRADESH
(Criminal Appeal No. 1381 of 2011)
OCTOBER 29, 2014
B
[VIKRAMAJIT SEN AND KURIAN JOSEPH, JJ.]
Penal Code, 1860 - ss.302 and 498A - Death of married
woman due to burn injuries - Allegation that appe!lant-
husband had beaten her and set her on fire after pouring C
kerosene - Further a/legation that on account of non-payment
of balance of the promised dowry, deceased was being ii/-
treated and harassed by appellant-husband and his mother
- Conviction of appellant - Justification - Held: Justified -
Dying declarations made by the deceased before police D
official and Judicial Magistrate were confidence bearing,
truthful, consistent and credible - Same corroborated by
evidence of PWs-1 to 3; injuries noted in the post-mortem
report and indifferent conduct of the appellant - Offence of
murder clearly made out. E
Dismissing the appeal, the Court
HELD:1. Exhibits-PS and P10 - dying declarations
are confidence bearing, truthful, consistent and credible.
Though no corroboration is necessary, yet, there is F
evidence of PWs-1 to 3 to whom also, the deceased is
said to have narrated the incident. Significantly, 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 G
conduct to pour it over the head, and in any case, not to
pour it on the face sparing the head. The indifferent
conduct of the appellant, as spoken about by PW-4, in not
taking prompt action to move the deceased to the hospital
597. H
598 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A is also a situation to be taken note of. 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. [Para 11) [602-G; 603-F-
B H; 604-A-B]
Lax man v. State of Maharashtra (2002) 6 SCC 710 -
referred to.
2. As rightly held by the Sessions Court and the High
C 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 murder is complete
o and, hence, the conviction of the appellant under Section
302 IPC is reaffirmed. [Para 13) [604-E]
Case Law Reference:
(2002) 6 sec 11 o referred to Para 2
E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1381 of2011.
From the Judgment & Order dated 28.11.2007 of the High
Court of Judicature Andhra Pradesh at Hyderabad in Criminal
F Appeal No. 1491 of 2005.
Gaurav Agrawal for the Appellant.
D. Mahesh Babu, S. Udaya Kumar Sagar, Krishan Kumar
G Singh for the Respondent.
The Judgment of the Court was delivered by
KURIAN, J. 1. Nemo moriturus praesumitur mentire
literally means no one at the point of death is presumed .to lie.
H Nobody normally may lie and die for fear of meeting his maker.
• MALLELLA SHYAMSUNDER v. STATE OF ANDHRA 599
PRADESH [KURIAN, J.]
2. Acceptability and reliability of statement made by a
person who is about to die, which statement, in common
A
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, B
we shall refer to a Constitution Bench decision in Laxman v.
State of Maharashtra', wherein at paragraph-3, it is held as
follows:
"3. The juristic theory regarding acceptability of a dying C
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 D
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 E
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, F
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 G
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
1. (2002) 6 sec 71 o.
H
600 SUPREME COURT REPORTS [2014] 11 S.C.R.
A Judge, Mahabubnagar, Andhra Pradesh. He was sentenced to
undergo rigorous imprisonment for life under Section 302 of the
•
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
B 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
c the sentence to the period already undergone.
4. The victim, Smt. Kalyani, since deceased, was married
to the appellant on 26.04.2000. The ailegation 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
D 23.08.2001, the appellant sent her out of the matrimonial home
demanding the balance arnount 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)
E 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 Srinivasa
F 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
G 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
H
• MALLELLA SHYAMSUNDER v. STATE OF ANDHRA 601
PRADESH [KURIAN, J.]
to Osmania General Hospital. However, she died on A
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(M0-1 ), the match box-(M0-2) and the burnt
towel ·and the saree-(MOs-3 and 4, respectively) and got the B
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-PB. C
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. D
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 E
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
co11firmed the finding of the Sessions Court that it is a case of
F
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 G
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 ga/ata (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 H
602 SUPREME COURT REPORTS [2014] 11 S.C.R.
A and the accused also did the same. When he reprimanded the
• t-
.-
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
s 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
c deceased, she had told him that the injuries were self-inflicted.
10. Exhibit-PS 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
0
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
E 01.2S 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
F no direct evidence to connect the appellant. It is not necessary
to refer in extenso to this argument for the following reasons:
a. Exhibits-PS and P10 - dying declarations are
confidence bearing, truthful, consistent and credible.
G There was no 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
H
MALLELLA SHYAMSUNDER v. STATE OF ANDHRA 603
PRADESH [KURIAN, J.]
to shake the credibility and reliability of the dying A
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 8
normally required to keep kerosene in such
quantity.
c. The post-mortem report refers to the following
injuries: c
"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 D
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. E
Part of the burns are infected."
(Emphasis supplied)
. It is very significant to note that the antemortem F
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 pour
it over the head, and in any case, not to pour it on the face
sparing the head. G
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.
H
·· -;,;;- -
604 SUPREME COURT REPORTS [2014] 11 S..C.R.
A· e. There was nobody else in the house and, hence. it
was for the appellant to offer explanation as to the
' the'ory of suicide, on the face
cause of death. His
of overwhelming evidence to the contrary, is not at
all acceptable.
B
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
c 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
D 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
E is likely to suffer death on account of the burns. Therefore, the
offence of murder is complete and , hence, we have no
hesitation in our mind in reaffirming the conviction of the
appellant under Section 302 of IPC.
F 14. Hence, we find no merit in the appeal and it is
accordingly dismissed.
Bibhuti Bhushan Bose Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "murder"Sign in to search