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2006 DIGILAW 935 (AP)

Parupalli Kumar v. State of A. P.

2006-08-04

B.SESHASAYANA REDDY

body2006
JUDGMENT : 1. This Criminal Appeal is directed against the judgment dated 23-7-1999 passed in S.C. No. 137 of 1997 on the file of II Additional District and Sessions Judge, Rangareddy District at Saroornagar, whereby and where under the learned Additional District and Sessions Judge found A1-Parapalli Kumar guilty for the offences under sections 304-B and 498A IPC and convicted him accordingly and sentenced him to suffer RI for 8 years and pay a fine of Rs. 500/-, in default to suffer SI for three months for the offence under section 304B IPC and RI for one year and fine of Rs. 500/-, in default to suffer SI for 3 months for the offence under section 498A IPC. 2. The prosecution case, in brief, is: A1 married Kavitha, daughter of P.W. 1 and P.W. 2, on 1.4.1994. A2-Suddala Ravi is brother-in-law of A1. After the marriage A1 started harassing his wife Kavita (hereinafter referred to as the deceased) on the ground of additional dowry. It is alleged that he beat the deceased on the ground of her not fulfilling his demands. On 28.8.94 at 1500 hours A1 returned home in an inebriated mood and beat the deceased and also abused her for not getting his demands fulfilled. The deceased being not able to put up the physical and mental harassment in the hands of A1 resorted to put an end to her life. At about 4 P.M. she poured kerosene on herself and lit fire. On hearing her cries neighbours rushed to the scene and in the mean while, A1 woke up from sleep and extinguished flames. The deceased was shifted to Osmania General Hospital for treatment. On 29.8.94 P.W. 9 Mohd. Saravarali Khan, Head Constable, Saroornagar P.S., Hyderabad on the instructions of Circle Inspector of Police (P.W. 12) proceeded to Osmania General Hospital and recorded the statement of the deceased and handed over the same to Station House Officer, Saroornagar Police Station. Ex. P. 4 is the statement 2 of the deceased recorded by him. Basing on Ex. P. 4 statement, P.W. 13 Y. Yadagiri, Sub-Inspector of Police, Saroornagar Police Station registered a case in Cr. No. 517 of 1994 under section 498A IPC and issued Ex. P. 9-FIR. He also recorded the statement of the deceased under section 161 of Cr. P.C. which has been exhibited as Ex. P. 11. Basing on Ex. P. 4 statement, P.W. 13 Y. Yadagiri, Sub-Inspector of Police, Saroornagar Police Station registered a case in Cr. No. 517 of 1994 under section 498A IPC and issued Ex. P. 9-FIR. He also recorded the statement of the deceased under section 161 of Cr. P.C. which has been exhibited as Ex. P. 11. A requisition was sent to the Munsif Magistrate, Hyderabad (West and South) to record the dying declaration of the deceased. P.W. 10-Ch. Kishore Kumar, Munsif Magistrate, Hyderabad (W & S) received Ex. P. 5 requisition from the Station House Officer, Saroornagar Police Station through P.C. 799. He proceeded to Osmania General Hospital and recorded the dying declaration of the deceased, which has been exhibited as Ex. P. 6. The doctor who was present at the time of recording dying declaration of the deceased certified that the deponent was in a fit state of mind to give her statement. Ex. P. 6 dying declaration contains the certificate issued by the duty Doctor-Dr. D. Madhusudhan Rao. The deceased succumbed to the injuries while undergoing treatment in Osmania General Hospital on 4.9.94 at 1 P.M. There upon, Ex. P. 10, memo of alteration of section of law came to be filed in the court by P.W. 12-K. Jaganmohan Reddy, Inspector of Police, Saroornagar P.S. P.W. 12 conducted inquest on the dead body of the deceased. Ex. P. 2 is the inquest report. After the inquest the dead body was subjected to post mortem examination. P.W. 7 held autopsy on the dead body of the deceased on 5.9.94 and issued Ex. P. 3 post mortem report opining that the deceased died of burn injuries. After completing investigation, P.W. 14-B Janardhan Reddy laid a charge sheet before the Additional Judicial First Class Magistrate, Hyderabad (E & N), Hyderabad. The learned Magistrate took the charge sheet on file as P.R.C. No. 173 of 1994 and committed the case to the Sessions Division, R.R. District at Saroornagar. The learned Sessions Judge took the case on file as S.C. No. 137 of 1997 and made over the same to the II Additional Sessions Judge, R.R. District at Saroornagar for disposal according to law. The learned Sessions Judge took the case on file as S.C. No. 137 of 1997 and made over the same to the II Additional Sessions Judge, R.R. District at Saroornagar for disposal according to law. The learned II Additional Sessions Judge, on hearing the prosecution and the accused, framed charges under sections 304-B and 498A IPC, read over and explained the same to the accused, for which 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, prosecution examined 14 witnesses, proved 11 documents and marked four material objects. The learned II Additional Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found A1 guilty for the offences under sections 304-B and 498A IPC and convicted him accordingly and sentenced him as stated supra. However, the learned II Additional Sessions Judge found A2 not guilty for the offences under sections 304-B and 498A IPC and acquitted him accordingly. Hence, this Criminal Appeal by A1. 3. Heard learned counsel appearing for appellant/A1 and Additional Public Prosecutor appearing for the State. Learned counsel appearing for the appellant/A1 submits that P.Ws. 1 to 3 are interested witnesses and therefore no implicit reliance can be placed on their testimony. He further submits that Ex. P. 4 statement and Ex. P. 6 dying declaration are not out of the free will of the deceased and they are the outcome of tutoring of the deceased by her parents. A further submission has been made that it is A1 who extinguished the flames of the deceased and therefore the conduct of the deceased soon after the occurrence speaks of his innocence of the offences with which he stood charged. 4. Learned Additional Public Prosecutor submits that the dying declaration of the deceased which have been exhibited as Exs. P. 4, P. 6 and P. 11 are consistent to the fact that A1 harassed the deceased on the ground of additional dowry and the deceased being not able to put up the harassment resorted to setting fire to herself and thus the conviction and sentence of A1 for the offences under sections 304-B and 498A IPC is legal and proper and the same is not liable to be interfered with in this appeal. 5. 5. The prosecution examined 14 witnesses and proved 11 documents and exhibited three material objects to bring home the guilt of the appellant/A1 for the offences under sections 498A and 304 B IPC. P.W. 1 and P.W. 2 are parents, P.W. 3 is the brother of the deceased. P.W. 4 is the neighbour to P.Ws. 1 to 3. P.W. 5 is cousin of P.W. 1. P.W. 6 and P.W. 8 are neighbours to the deceased. P.W. 7 is the post mortem Doctor. P.W. 9 is the Head Constable who recorded the statement of the deceased, which has been exhibited as Ex. P. 4. P.W. 10 is the Magistrate who recorded the dying declaration of the deceased. Ex. P. 6 is the dying declaration. P.W. 11 is the panch witness for the scene of offence panchanama. P.W. 12 is the Inspector of Police, Saroornagar Police Station, Hyderabad who sent requisition to the Additional Judicial First Class Magistrate, Hyderabad (W & S). Ex. P. 5 is the requisition sent to the Magistrate to record the dying declaration of the deceased. He filed Ex. P. 10 memo of alteration of section of law consequent on the receipt of intimation of the death of the deceased. P.W. 13 is the Sub-Inspector of Police, Saroornagar, Hyderabad who received Ex. P. 4 statement of the deceased and registered a case in Cr. No. 517 of 1994 under section 498A IPC and issued Ex. P. 9-FIR. He also recorded the statement of the deceased which has been marked as Ex. P. 12. P.W. 14 is the Sub-Divisional Police Officer, Saroornagar who filed the charge sheet. 6. The entire case rests on the evidence of P.Ws. 1 to 3 and dying declarations of the deceased, which have been exhibited as Exs. P. 4.6 and 11. P.W. 9 recorded Ex. P. 4 statement of the deceased. P.W. 10 recorded Ex. P. 6 dying declaration of the deceased. P.W. 13 recorded Ex. P. 11 statement of the deceased. There are three written dying declarations of the deceased apart from the oral dying declarations of the deceased made to P.Ws. 1 to 3. The text of the written dying declarations of the deceased have been extracted by the trial court in its judgment. Paragraphs 23 and 24 of the trial court judgment reproduced the relevant portions of the dying declarations of the deceased. 7. 1 to 3. The text of the written dying declarations of the deceased have been extracted by the trial court in its judgment. Paragraphs 23 and 24 of the trial court judgment reproduced the relevant portions of the dying declarations of the deceased. 7. It is well settled that as a matter of law, a dying declaration can be acted upon without corroboration. See Kushal Rao v. State of Bombay (1) 1958 SCR 522, Harban Singh v. State of Punjab (2) 1962 Supp. (1) SCR 104, Gopal Singh v. State of M.P. (3) (1972) 3 SCC 268 : AIR 1972 SC 1557 . There is not even a rule of prudence which has 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 of convincing, then the court may for its assurance look for corroboration to the dying declaration. 8. In another decision in Kanaksingh Rai Singh Rav v. State of Gujarat (4) (2003) 1 SCC 73 it is held by the Supreme Court that the law is well settled and if a 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. 9. The essential ingredients of Section 304-B IPC are: i) The death of a woman should be caused by burns or bodily injury and otherwise than under normal circumstances; ii) Such death should have been occurred within seven years of the marriage; iii) She must have been subjected to cruelty or harassment by her husband or relative of her husband; iv) Such cruelty or harassment should be for or in connection with demand for dowry. 10. The deceased died of burn injuries within 7 years of the marriage. There is no dispute with regard to the cause of death of the deceased. This fact has been amply proved by the post mortem Doctor who has been examined as P.W. 7. As a matter of fact the deceased succumbed to the burn injuries while undergoing treatment in Osmania General Hospital, Hyderabad. There is no dispute with regard to the cause of death of the deceased. This fact has been amply proved by the post mortem Doctor who has been examined as P.W. 7. As a matter of fact the deceased succumbed to the burn injuries while undergoing treatment in Osmania General Hospital, Hyderabad. Therefore, prosecution has amply proved that the deceased died of burn injuries. The dying declarations of the deceased are consistent to the fact that on the date of the incident A1 came in an inebriated mood and beat her on the ground of additional dowry and thereupon the deceased being not able to put up with the harassment resorted to put an end to herself by setting fire to herself. The written dying declarations i.e. Ex. P. 4, P. 6 and P. 11 are fully corroborated by the ocular testimony of P.Ws. 1 to 3. There is no material to show that the dying declarations were the result of product of imagination, tutoring and prompting. On the contrary, the same appears to have been made by the deceased voluntarily. They are trustworthy and have credibility. 11. The trial court considered the evidence brought on record in right perspective and found the appellant/A1 guilty for the offence under section 498A and 304-B IPC. I do not see any valid ground to interfere with the conviction of the appellant-A1 for the offences under sections 304-B and 498A of IPC. However, keeping in view the age of the appellant/A1 I am inclined to reduce the sentence imposed from 8 years to 7 years. But for the reduction of sentence of imprisonment from eight years to seven years, this Criminal Appeal fails and the same is dismissed.