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2004 DIGILAW 345 (AP)

S. Shakunthala (A-1) v. State Of A. P.

2004-03-19

B.SESHASAYANA REDDY, G.BIKSHAPATHY

body2004
JUDGMENT B. Seshasayana Reddy, J.— This Criminal Appeal is directed against the judgment, dated 06-03-2002 passed in S.C.No. 343 of 2001 on the file of the special Judge for the trial of offences under S.Cs and S.Ts (Prevention of Atro-cities) Act-Cum-VI Additional Metro-politan Sessions Judge, Secunderabad, by which the learned special Judge convicted A-l-Smt. S. Shakunthala for the offences punishable under Secs.-498-A and 302 of Indian Penal Code and A-2 for the offences punishable under Sections 498-A read with 109 of Indian Penal Code and Section 302 of Indian Penal Code and sentenced each of them to suffer rigo-rous imprisonment for two years and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for one month for the offences under Sections 498-A and 498-A read with 109 of Indian Penal Code and imprisonment for life and fine of Rs.1000/- in default to suffer simple imprisonment for two months for the offence under Section-302 of Indian Penal Code. 2. The appellant herein is A-l in S.C.No. 343 of 2001. She alongwith another accused (A-2) was put on trial before the special Judge for the trial of offences under S.Cs and S.Ts (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secundera-bad for the offences under Sections 302,304-B and 498-A of Indian Penal Code. 3. The case of the prosecution in brief is:- P.W-1-D.Shashikala and P.W-2-D.Narayana are parents and P.W-3-D.Sunil Kumar is brother of Smt. Anitha (hereinafter referred to as the deceased). The deceased was married to Suraj in the year 1998. At the time of marriage, the parents of the deceased gave Rs.50,000/- as dowry and presented four thulas of gold and other house-hold articles including almirah, dressing table etc. After marriage the deceased along with her husband stayed at Bolarum and she had a male child by name Rahul out of the wedlock. A-1-Smt.S.Shakunthala is mother-in-law and A-2-Smt.C.Vijaya Lakshmi is neighbour of the deceased. In the year 1999 A-l harassed the deceased on the ground of additional dowry. The parents of the deceased paid Rs.30,000/- to meet the dowry demands of A-l. A-l being not satisfied with the amount paid to her by the parents of the deceased continued to harass the deceased. Therefore, the parents of the deceased paid a further sum of Rs. 10,000/- in the first week of July, 2000. The parents of the deceased paid Rs.30,000/- to meet the dowry demands of A-l. A-l being not satisfied with the amount paid to her by the parents of the deceased continued to harass the deceased. Therefore, the parents of the deceased paid a further sum of Rs. 10,000/- in the first week of July, 2000. It is alleged that on 23-07-2000 P.W-1 went to the house of A-l in order to take her daughter i.e. deceased for Bonalu celebrations but A-l and A-2 quarelled with P.W-1 and refused to send the deceased along with her parents and demanded her to pay more amounts. It is further alleged that on the same day at 4 p.m., A-l and A-2 quarelled with the deceased, poured kerosene on her and set her on fire and thereby she engulfed in flames. When the deceased raised cries, some neighbours of the deceased put out the flames and removed her to Gandhi Hospital, Bolarum for treatment. P.W-14-M.A.Majeed. Sub-Inspector of police, Bolarum police station, received telephonic message from the Gandhi Hospital about the admission of the deceased in burns ward. He rushed to the Gandhi Hospital, recorded the statement of the deceased and obtained her left leg big toe impression thereon. Ex.P-20 is the statement of the deceased. Basing on Ex.P-20-statement, he registered a case in Cr. No. 57 of 2000 under Sections 498-A and 307 of Indian Penal Code and issued Ex.P-21-First Information Report. He sent Ex.P-15-requisition to IV Metropolitan Magistrate, Hyderabad for recording the dying declaration of the deceased. P. W, 10-N.Ranoji, IV Metro-politan Magistrate, Hyderabad received requisition, reached the hospital by 8.20 p.m., put preliminary questions to the deceased and got himself satisfied with the fit state of mind of the deceased to give her declaration. He also ascertained the fit state of mind of the deceased from the duty doctor. He recorded the statement of the deceased wherein the deceased stated that A-l and A-2 poured kerosene and set her on fire, and thereby, she sustained injuries. Ex.P-16 is the dying declaration of the deceased recorded by him. P.W.14 attested A-l and A-2 on 26-07-2000 and produced them before the Inspector, who took up the investigation. He recorded the statement of the deceased wherein the deceased stated that A-l and A-2 poured kerosene and set her on fire, and thereby, she sustained injuries. Ex.P-16 is the dying declaration of the deceased recorded by him. P.W.14 attested A-l and A-2 on 26-07-2000 and produced them before the Inspector, who took up the investigation. P.W. 15-Inspector of Police, Bolarum police station, took up investigation, conducted scene of offence panchnama in the presence of P.W.11-B.N. Narsimloo and effected seizure of M.O. 1-Match box, M.O. 2- used match stick, M.O. 3-brinjal colour saree pieces, M.O. 4-chocolate colour flower design door curtain burnt pieces, M.O. 5- one small blue colour plastic can, M.O. 6 one iron tin and M.O. 7 half burnt white jacket under the cover of Ex.P-17-panchnama. He got the scene of offence photographed by P.W-9. Exs.P-3 to P-l 4 are the photo-graphs. He sent the accused for remand. The deceased succumbed to the injuries while undergoing treatment in the hospital on 24-07-2000 at 5.10 a.m. Consequently, Section of law came to be altered adding Sections 304-B and 302 of Indian Penal Code. Inquest was held on the dead body of the deceased by P.W. 11-Smt.B.Shantha, Mandal Revenue officer in the presence of P.W. 8-Satish. The opinion arrived by the inquest came to be recorded in column No. 15 of the Inquest report. Ex.P-2 is the Inquest report. After the inquest, the dead body was sent for postmortem examination. P.W. 13-Dr.P.Harikrishna, Assistant professor on 24-07-2000 conducted autopsy over the dead body of the deceased from 6 p.m. to 6.45 p.m. He issued Ex.P-18-Postmortem certificate opining that the deceased died of shock due to burns. After completing the investigation, P.W.16-Assistant Commissioner of police, Ramgopalpet Division, North Zone, Secunderabad laid charge sheet in the Court of XI Metropolitan Magistrate, Secunderabad. 4. The learned Magistrate took the charge sheet on file as P.R.C.No. 25 of 2001 and committed the case to the Court of Session as the offences under Sections 304-B and 302 of Indian Penal Code are exclusively triable by the Sessions court. On committal, the learned Metropolitan Sessions Judge took the case on file as S.C.No. 343 of 2001 and made over the same to the Special Judge for the trial of offences under S.Cs and S.Ts (Prevention of Atrocities) Act-Cum-VI Additional Metropolitan Sessions Judge, Secunderabad for disposal according to law. On committal, the learned Metropolitan Sessions Judge took the case on file as S.C.No. 343 of 2001 and made over the same to the Special Judge for the trial of offences under S.Cs and S.Ts (Prevention of Atrocities) Act-Cum-VI Additional Metropolitan Sessions Judge, Secunderabad for disposal according to law. On hearing the prosecution and the accused, the learned Special Judge framed the following charges:- Charge No. 1 : Against A-l for the offence punishable under Section-498-A of Indian Penal Code. Charge No. 2 against A-2 for the offence punishable under Section 498-A read with 109 of Indian Penal Code. Charge No. 3 against A-l and A-2 for the offence punishable under Section 302 of Indian Penal Code. Charge No. 4 against A-l for the offence puni-shable under Section 304-B of Indian Penal Code. Charge No. 5 against A-2 for the offence punishable under Section 304-B read with 109 of Indian Penal Code. The accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which they stood charged, the prosecution examined P.Ws. 1 to 16 and marked Exs.P-1 to P-21 and M.Os. 1 to 7. The learned Special Judge on appreciation of the evidence brought on record found A-l guilty for the offences under Secs. 302 and 498-A of Indian Penal Code and A-2 guilty for the offences under Sections 302 and 498-A read with 109 of Indian Penal Code and convicted them accordingly and sentenced them as detailed above. Assailing the judgment of conviction and sentence, A-l-Smt. S. Shakunthala has filed this Criminal Appeal. 5. We make it ourselves clear that A-2-Smt.C.Vijaya Lakshmi has not preferred any appeal so far. Therefore, we are required to examine the legality of the conviction and sentence imposed on A-1-S.Shakunthala for the offences under Sections 498-A and 302 of Indian Penal Code. It is right to note at this stage that the trial Court found A-1 and A-2 not guilty for the offence under Sec. 304-B of Indian Penal Code and acquitted them accordingly. 6. It is right to note at this stage that the trial Court found A-1 and A-2 not guilty for the offence under Sec. 304-B of Indian Penal Code and acquitted them accordingly. 6. Learned Senior Counsel appearing for the appellant/A-1 contends that there is no consistency in the dying declarations of the deceased and therefore, no reliance could be placed on any one of the dying declarations of the deceased that are pressed into service to prove the guilt of the appellant /A-1 for the offences under Sections 498-A and 302 of Indian Penal Code. It is also submitted by him that the defence of the appellant/A-1 is more probabilised by the postmortem Doctor and therefore, the conviction of the appellant/ A-1 for the offences under Secs. 498-A (i) and 302 of Indian Penal Code is not legal and proper and the same is liable to be set-aside. In elaborating his arguments, he submits that the plea of the accused that the deceased herself set fire is probabilised by the Post­mortem Doctor. He refers the evidence of P. W-13 in support of his submission. He also relies upon the decisions of the Supreme Court in Bakhshish Singh v. The State of Punjab1 , Dandu Lakshmi Reddy v. State of Andhra Pradesh2 , Kajal Sen and others v. State of Assam3  and decision of our High Court in Public Prosecutor v. Mohd. Hoshan and another4 . 7. In Bakhshish Singh’s case the Supreme Court held that: “the dying declaration is the statement made by a person as to the cause of his death or as to any of the circumstances, of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by Section 32(1) of the Evidence Act and unless absolutely necessary to make a statement coherent or complete should not be included in the statement. It is further held that the authenticity of the dying declaration has to be judged in accordance with the circumstances of each case depending upon many factors which would vary with each case but those recording such statements would be well advised to keep in view the fact that the object of a dying declaration is to get from the person making the statement the cause of death of the circum-stances of the transaction which resulted in death." 8. In Dandu Lakshmi Reddy’s case, the Supreme Court held that the accused cannot be convicted on the strength of a fragile and rickety dying declaration. In the cited case, the father and mother of the deceased have stated that the deceased was not mentally sound. Keeping in view the statements of the father and mother of the deceased, the Supreme Court held that it would be unsafe to base a conviction on the basis of a dying declaration of the deceased when there has been a slight doubt about the mental soundness of the author of the dying declaration. In Kajal Sen’s case, the Supreme Court held that when once prosecution led the evidence before the court, which remained unchallenged, it was open to the accused to rely upon the same for their defence. In Public Prosecutor v. Mohd. Hoshan and another’s case, a question with regard to eviden-tiary value of the dying declaration of a declarant, who knows Urdu but recorded in English language came up for consideration. Sri Krishna Saran Shrivastav, J. held in para-17 of the judgment as follows : “As noted above, P.W. 1 has stated that in Hyderabad, Urdu is spoken which is similar to Hindi language. He stated that he knew Hindi language well and, therefore, he recorded the dying declaration in English after hearing the statement in Urdu which is similar to Hindi and after recording her statement, it was read over to the declarant who accepted it to be correct. Under these circumstances, the reason given by the trial Judge in para 23 of his judgment that the statement Ex.P-2 cannot be given much weight legally because the declarant had stated in Urdu language which was translated into English by the Magistrate, is wholly inadequate and unacceptable particularly when I get from the evidence of P. W-l that he was unable to write the statement in Urdu and that was the reason for recording the statement in English after translating the same.” 9. Per contra, learned Public Prosecutor submits that all the dying declarations of the deceased pressed into service are consistent and the same have been rightly accepted by the trial Court in finding the appellant/A-l guilty for the offences under Sections 498-A and 302 of Indian Penal Code and therefore, the judgment of the trial Court is not required to be interfered in this appeal. He further submits that the exaggerations of the prosecution witnesses with regard to the part played by the assailants is not a ground to throw out the entire prosecution evidence. In support of the submissions, reliance has been placed on the decisions of the Supreme Court in Dandu Lakshmi Reddy v. State of Andhra Pradesh (2nd supra) and in Raja Ram and others v. State of Madhya Pradesh5 . 10. P.W.1 is the mother, P.W. 2 is the father and P.W.3 is the brother of the deceased. P.W. 4 is the neighbour to P.Ws. 1 to 3. They speak of the dowry demands of the appellant/A-l. The evidence of P.Ws. l to 3 is cogent and consistent and there is no reason to discard their testimony on this aspect. Coming to the incident proper, the entire case rests on the dying declarations of the deceased. There are two written dying declarations, one recorded by P.W. 14 on 23-7-2000 at 7.30 p.m., which has been exhibited as Ex.P-20 and another dying declaration recorded by P. W-10 on the same day at 8.45 p.m., which has been exhibited as Ex.P-16. Apart from two dying declarations, the prosecution has relied on four oral dying declarations of the deceased. P.Ws. 1 to 4 are the witnesses to speak of the oral dying declarations of the deceased. 11. It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. In Sri Khusal Rao v. State of Bombay6 , Harban Singh v. State of Punjab7  and Gopal Singh v. State of Madhya Pradesh8 , there is not even a rule of prudence which is hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is so, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear and convincing, then the court may for its assurance look for corroboration to the dying declaration. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is so, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear and convincing, then the court may for its assurance look for corroboration to the dying declaration. In Kanak Singh Raj Singh v. State of Gujarat9  it is held by the Supreme Court that the law is well settled and if the dying declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, there is no impediment in relying such a declaration. 12. The incident occurred on 23-07-2000 at 4 p.m. P.Ws. 5 and 6 shifted the deceased to Gandhi Hospital for treatment. P.W. 14 recorded the statement of the deceased at 7.30 p.m. and treated it as a First Information Report, registered a case in Cr.No. 57 of 2000 under Sections 307 and 498-A of Indian Penal Code. Ex.P-20 is the statement of the deceased, which formed the basis for registering the case in Cr.No. 57 of 2000. P.W. 10 is the Metropolitan Magistrate who recorded the dying declaration of the deceased at 8.45 p.m. on that day and the said dying declaration has been exhibited as Ex.P-16. The story narrated by the deceased in Exs.P-20 and P-16 is cogent and consistent. The deceased stated before P.Ws.14 and 10 that it was A-1 and A-2 who poured kerosene and set her on fire. Nothing is suggested to P.Ws.10 and 14 that the deceased was prompted by her parents or by any one to give statements before them or the deceased was not in a fit state of mind while her statements were recorded by them. There is no reason to suspect the account of incident narrated by the deceased in Ex.P-16 and Ex.P-20 dying declarations. 13. Learned senior counsel submits that the written dying declarations are contradictory to the oral dying declarations and therefore, neither of them can be relied to sustain conviction of the appellant/ A-1. P.Ws. l to 4 speak of the oral dying declarations of the deceased. So far as P.W. 4 is concerned, it is his evidence that he was told by the deceased that A-1 and A-2 poured kerosene and set her on fire. P.Ws. l to 4 speak of the oral dying declarations of the deceased. So far as P.W. 4 is concerned, it is his evidence that he was told by the deceased that A-1 and A-2 poured kerosene and set her on fire. The oral dying declaration of the deceased made to P.W. 4 is in conformity with the dying declarations of the deceased recorded in Exs.P-16 and 20. P. W-l stated that she was told by the deceased that A-1 poured kerosene on her whereas A-2 lit match stick and thereby she caught in flames. P. W-2 stated that she was told by the deceased that A-1 poured kerosene on her and A-2 lit fire with match stick and thereby she caught in flames. P.W-3 stated that he was told by the deceased that A-2 caught hold of her whereas A-1 poured kerosene and lit fire. In the oral dying declarations they have specified the part played by each of the accused. Can it be said that they are in contradictory to the account of the incident given by the deceased in her written dying declarations. In our view, the answer could be only negative. 14. Learned senior counsel placing reliance of the decision in Dandu Lakshmi Reddy v. State of Andhra Pradesh (2nd supra) contends that the dying declarations pressed into service are contra-dictory with each other and therefore, no reliance can be placed on them. In the cited case, there was one material contradiction between the two dying declarations regarding the context in which the deceased caught fire. Apart from the material contradiction, the parents of the deceased therein stated that the deceased was not mentally sound. Coming to the facts of the case on hand, there is no material contradiction between the oral dying declarations and the written dying declarations. It is also not the case of the appellant/A-1 that the deceased was not mentally sound, there-fore, the cited decision has no application to the facts of the case on hand. 15. It is nextly contended by the learned senior counsel appearing for the appellant/ A-1 that the probability of the deceased setting fire to herself cannot be ruled out in view of the evidence of the postmortem Doctor. P.W. 13 is the postmortem Doctor. He stated that the extent and colour of burns appears to be suicidal. 15. It is nextly contended by the learned senior counsel appearing for the appellant/ A-1 that the probability of the deceased setting fire to herself cannot be ruled out in view of the evidence of the postmortem Doctor. P.W. 13 is the postmortem Doctor. He stated that the extent and colour of burns appears to be suicidal. Learned senior counsel submits that though the appellant/A-1 did not specifi-cally plead that the deceased set fire to herself it could not be a bar to probabilise it from the evidence of the prosecution witnesses. He placed reliance on the decision of the supreme court in Kajal Sen and others v. State of Assam (3rd supra). We have read the evidence of P.W. 13 who stated that the deceased died of shock due to burns. For better appreciation, we may reproduce the evidence of P.W. 13 in his own words, which is thus : “I am working as Assistant Professor, Gandhi Medical College since 1997. On 24-07-2000 on the requisition of M.R.O. Inquest, Hyderabad I conducted autopsy over the body of Smt. Anitha from 6 p.m. to 6.45 p.m. On examination, I found Anti-mortem mixed flame burns all over the body except scalp lams of hands and soles of feet burnt have blackened appearance, extent of burns 95% internally the utrew was enlarged and contained, male foetus of 19 cm length - duration of preg-nancy 4 months, the cause of death was shock due to burns and the deceased died in Gandhi Hospital, Secunderabad, from the extent and the colour of burns they are appeared to be suicidal. Ex.P-18 is the Postmortem Report and Ex.P-19 is the Forensic Science Laboratory Report.” 16. It is not at all the defence of the accused that the deceased committed suicide. It is the defence of the accused that the deceased sustained injuries accidentally. The opinion of P.W. 4 that the colour of the burns suggestive of suicidal is a stray observation and it does not stand to reason. It is only a suggestive opinion and in the wake of indubitable and reliable dying declaration we are reluctant to place any credence to such opinion. The opinion of P.W. 4 that the colour of the burns suggestive of suicidal is a stray observation and it does not stand to reason. It is only a suggestive opinion and in the wake of indubitable and reliable dying declaration we are reluctant to place any credence to such opinion. Therefore, we express inability to accord any evidentiary value to the stray observation of postmortem Doctor: The trial court considered the evidence brought on record in right perspective and found A-l guilty for the offences under Sections 498-A and 302 of Indian Penal Code. We see no reason to differ with the findings recorded by the trial court. 17. In the result, the Criminal Appeal fails and the same is accordingly dismissed confirming the conviction and sentence of the appellant/A-1 for the offence under Sections 498-A and 302 IPC passed in S.C.No. 343 of 2001 on the file of Special Judge for the trial of offences under S.Cs. and S.Ts (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secun-derabad. Appeal dismissed. 1. AIR 1957 SC 904 . 2. 1999 (2) ALT (Crl.) 321 (SC): AIR 1999 SC 3255 . 3. (2002) 2 SCC 551 . 4. 1996 (2) ALT (Crl.) 326 (A.P.): 1996 (2) ALD (Crl.) 104. 5. (1994) 2 SCC 568 . 6. 1958 SCR 522. 7. 1962 Suppl. (1) SCR 104. 8. AIR 1972 SC 1557 . 9. (2003) 1 SCC 73 .