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2007 DIGILAW 1076 (AP)

Gandhamalla Mahankali v. State of A. P.

2007-11-01

D.S.R.VERMA, K.C.BHANU

body2007
JUDGMENT (Per D.S.R. Varma, J.) Heard Smt. A. Gayathri Reddy, the learned counsel appearing for the appellant-Accused No. 2 and the learned Additional Public Prosecutor, appearing for the respondent State. 2. Appellant is Accused NO.2 (along with Accused No.1) in the Sessions Case. 3. This Criminal Appeal, by Accused NO.2 (for brevity "A-2), under Section 374(2) of the Code of Criminal Procedure, is directed against the judgment, dated 22-12-2005, in Sessions Case No. 960f 2005, passed by the III Additional Sessions Judge (I Fast Track Court), Nalgonda, acquitting A-2 of the punishable under Section 498-A of the Indian Penal Code (for brevity "I.P.C.") and convicting for the offence punishable under Section 302 I.P.C., and sentencing her to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default to suffer simple imprisonment for one month. 4. The brief facts that are necessary for disposal of the present Criminal Appeal, as per the prosecution case, may be stated as follows: A-1, A-2 and the deceased are residents of Nancharipeta village; thatA-1 is the husband, A-2 is the mother-in-law, P.W. 1 is the father and P.Ws. 2 and 3 are the brothers of the deceased, respectively; that on 10-05-1999, P.W.1 performed the marriage of the deceased with A-1 and agreed to pay a sum of Rs. 30,000/- as dowry and accordingly he paid the same; that immediately after the marriage, the deceased joined the company of A-1 to lead marital life; that they lived together happily for one year; that, thereafter, A-1 and A-2 started harassing the deceased for not giving birth to children; that they also harassed the deceased to get additional dowry of Rs. 30,000/- as dowry and accordingly he paid the same; that immediately after the marriage, the deceased joined the company of A-1 to lead marital life; that they lived together happily for one year; that, thereafter, A-1 and A-2 started harassing the deceased for not giving birth to children; that they also harassed the deceased to get additional dowry of Rs. 20,000/- and thrown out from the house for not getting the additional dowry; that, about one year, four months prior to the incident, though P.W. 1 held panchayat, no settlement could take place; that, thereafter, the settlement took place at Athmakur Police Station and accordingly P.W. 1 sent the deceased along with A-1 and A-2 to their house; that nine days thereafter i.e., 28-09-2004, while P.W.1 was at his house, P.W. 4 informed P.W.1 on phone that the deceased sustained burn injuries and she was being taken to the Area Hospital, Bhongir, from where she was shifted to Gandhi Hospital, Secunderabad that then P. W. 1 proceeded to the Hospital, and found the deceased with burn injuries; that when P.W. 1 questioned as to how she sustained burn injuries, the deceasedtoldP.W.1 thatA-1 andA-2poured kerosene on her, set her ablaze, closed the doors of the room and left the place; that, on the same day, while undergoing treatment, the deceased died; that P.W. 1 lodged a complaint, Ex. P-1, on 29-09-2004 at 9.30 a.m., basing on which P.W. 13, the Sub-Inspector of Police, Athamkur, Police Station, registered the case in Crime No. 49 of 2004, for the offence punishable under Section 302 IPC against A-1 and A-2 and issued F.I.R., Ex. P-7; that, thereafter, he examined P.W. 1 and visited the Hospital, where he examined and recorded the statements of P.Ws. 1 and 2; that, on his requisition, P .W. 10, the Mandai Revenue Officer, Athmakur Mandal, conducted inquest over the dead body of the deceased and Ex. P-3 is the inquest panchanama and that then P.W. 13 visited the scene of offence and recorded the statements of P.Ws. 4 to 6. He also conducted the scene of offence panchanama, under Ex. P-2, in the presence of P.Ws. 7 and8, and seized M.O. 1, kerosene tin, and further seized burnt matchstick with box and burnt cloth pieces, which were marked as M.Os. 2 and 3. 5. 4 to 6. He also conducted the scene of offence panchanama, under Ex. P-2, in the presence of P.Ws. 7 and8, and seized M.O. 1, kerosene tin, and further seized burnt matchstick with box and burnt cloth pieces, which were marked as M.Os. 2 and 3. 5. On receiving requisition from the Hospital authorities, the Additional Judicial First Class Magistrate, Bhongir, recorded the dying declaration of the deceased, under Ex. P-4, on 28-09-2004 at 3.20 p.m. 6. On 29-09-2004, at 1.30 p.m., P.W. 12, the Civil Assistant Surgeon, Area Hospital, Bhongir, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to shock secondary to above 90 per cent mixed burns. Ex. P-6 is the postmortem examination report. 7. On 08-10-2004, P.W. 13 arrested the accused and after completion of investigation, P.W. 14, the Circle Inspector of Police, Ramannapet, filed the charge sheet against A-1 and A-2. 8. When a charge under Section 498-A I.P.C., against A-1 and A-2 and a charge under Section 302 I.P.C., against A-2 were framed, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 9. In order to bring home the guilty of A-1 and A-2, the prosecution examined P. Ws. 1 to 14 and got marked Exs. P-1 to P-7, besides marking M.Os. 1 to 3 on its behalf. 10. After closure of evidence on behalf of the prosecution, when A-1 and A-2 were examined under Section 313 Cr.P.C., with reference to the incriminating material found against them, in the evidence of the prosecution witnesses, they denied the same, but no witnesses were examined and no documents were marked on their behalf. 11. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, acquitted A-2 of the offence punishable under Section 498-A I.P.C., and convicted for the offence punishable under Section 302 I.P.C., and sentenced her to suffer imprisonment for life and to playa fine of Rs. 200/-, in default to suffer simple imprisonment for one month. Aggrieved by the same, A-2 has preferred the present Criminal Appeal. 12. 200/-, in default to suffer simple imprisonment for one month. Aggrieved by the same, A-2 has preferred the present Criminal Appeal. 12. Now, the point that arises for consideration, in this Criminal Appeal is - as to whether the Court below was right in appreciating the evidence on record before arriving at the conclusion that A-2 was responsible for the death of the deceased? 13. It is established that there were longstanding quarrels between the mother-in-law (A-2) and the daughter-in-law (the deceased), which was spoken to by almost all the witnesses, including P.Ws. 1, 2 and 3, who are the father and brothers of the deceased, respectively. 14. P .W. 1 to 3 deposed to the effect that when they asked the deceased as to how she received the burn injuries, she stated that A-2 demanding her to get additional dowry poured kerosene on her and set her ablaze. 15. When such is the situation, the crucial evidence is that of P.Ws. 4 and 5, who are the residents of Nancharipet village. 16. P.Ws. 4 and 5 almost spoke in similar lines to the effect that, while they were proceeding near the house of the accused, they had seen A-2 standing in front of her house and, at that time, some smoke was coming out of their house and that when they pushed the doors and entered inside the house, they found the deceased suffered burn injuries. 17. The evidence of above said two witnesses i.e., P.Ws. 4 and 5, indicates that the door was not bolted either from inside or outside. If it was bolted inside, the presumption, perhaps, could have been that the deceased had attempted to commit suicide, and if the door was bolted from outside, the presumption could have been that A-2, who was standing in front of the house, set the deceased ablaze, came out of the house and bolted the door from outside in order to avoid the escape of the deceased. But, none of these circumstances are present. 18. The evidence of P.Ws. 4 and 5 is only to the effect that A-2 was standing outside the house. A-2, who was aged about more than 65 years, was just standing outside the house. When it was the evidence of P.Ws. But, none of these circumstances are present. 18. The evidence of P.Ws. 4 and 5 is only to the effect that A-2 was standing outside the house. A-2, who was aged about more than 65 years, was just standing outside the house. When it was the evidence of P.Ws. 4 and 5 that the doors were closed, the evidence of P.W. 3 was to the effect that he saw A-2 pouring kerosene on the deceased and setting herablaze. Both these versions i.e., the version of P.W. 3, on one hand, and the version of P.Ws. 4 and 5, on the other, are contradictory to each other. The incompatibility in the said evidence would create a doubt in the mind of this Court and to some extent improbablize the evidence of P.Ws. 1 to 3. 19. Nevertheless, the fact is that the deceased was put to burns and she was shifted to the Hospital, where she succumbed to burn injuries. No doubt, there was a time gap of 2.00 hours between shifting the deceased to the Hospital and her death and there was no scope for tutoring the deceased to depose against A-2, in between this time gap. Still, when it is the admitted case of P.Ws. 1 to 3, who are father and brothers of the deceased, respectively, that there were incessant quarrels between A-2 and the deceased, there is every possibility for the deceased just to quote the name of , A\-2 in the dying declaration, Ex. P-4, recorded by P.W. 10, the Magistrate. 20. It is the specific case of the prosecution that both A-1 and A-2 were harassing the deceased for additional dowry. When that was the allegation, we do not find any plausible reason as to why A-2 alone was charged with the offence punishable under Section 3021 PC said to have been committed by her. The only reason, perhaps, would be non-presence of A1, at the relevant poiht of time, when the deceased was put to flames. The other possibility of A-1 setting the deceased ablaze and going away cannot also be ruled out. There is no specific evidence in that regard. Therefore, we are not fully convinced with the version of the prosecution, particularly with reference to the dying declaration of the deceased, under Ex. P-4. 21. The other possibility of A-1 setting the deceased ablaze and going away cannot also be ruled out. There is no specific evidence in that regard. Therefore, we are not fully convinced with the version of the prosecution, particularly with reference to the dying declaration of the deceased, under Ex. P-4. 21. It is but natural that sometimes the longstanding quarrels between the daughter in-law and the mother-in-law may lead to emotional circumstances, resulting in attempting to suicide. Therefore, in the present case, since the quarrels were very frequent between the deceased and A-2, such possibility and the animosity of the deceased (daughter-in-law) towards A-2 (mother-in-law) cannot also be ruled out. 22. Out course, in normal circumstances, the dying declaration of the deceased, under Ex. P-4, can be given any amount of credence. But, in view of the other surrounding circumstances, we are not fully convinced that A-2 can only be the person responsible for the death of the deceased, particularly when there are other possibilities also. 23. Having regard to the facts and circumstances, though the dying declaration of the deceased was brought into existence in a right manner, the backdrop of the matter, as discussed above, would suggest that the statement made by the deceased in the dying declaration, under Ex.P-4, may not be completely true, particularly when she was suffering from serious burn injuries. 24. No doubt, P.W. 11, the Magistrate, was thoroughly convinced about the mental fitness of the deceased and recorded her statement, but taking into consideration the possibility of the deceased committing suicide and the same being directed against A-2 also cannot be ruled out. Therefore, we are of the view that both the possibilities are equally and well poised. 25. In such circumstances, with all regard to the dying declaration of the deceased, under Ex. P-4, we are of the considered view that there are other doubtful circumstances in the case, in which event, the appellant A-2 deserves the benefit of doubt. 26. For the foregoing, the judgment of the Court below, convicting and sentencing A-2, as stated above, is liable to be set aside, thereby acquitting her of the said charge. 27. P-4, we are of the considered view that there are other doubtful circumstances in the case, in which event, the appellant A-2 deserves the benefit of doubt. 26. For the foregoing, the judgment of the Court below, convicting and sentencing A-2, as stated above, is liable to be set aside, thereby acquitting her of the said charge. 27. In the result, the Criminal Appeal is allowed, setting aside the judgment of conviction and sentence, dated 22-12-2005, in Sessions Case No. 96 of 2005, passed by the III Additional Sessions Judge (I Fast Track Court), Nalgonda, thereby acquitting the appellant-Accused NO.2 for the offence with which she was charged and the amount of fine, if any, paid, shall be refunded to her. The appellant-Accused NO.2 shall be released forthwith, if not required in any other case.