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2009 DIGILAW 374 (AP)

Madaram Gopal Reddy v. State of A. P.

2009-06-16

D.S.R.VERMA, R.KANTHA RAO

body2009
JUDGMENT (Per R. Kantha Rao, J.) This Criminal Appeal is filed against the judgment dated 27 -2-2006 passed by the VI Additional Sessions Judge (Fast Track Court), Vikarabad, R.R. District in Sessions Case No. 630 of 2004. 2. In all, two accused were tried by the learned Additional Sessions Judge for the offences under Sections 498-A and 302 I PC. 3. Accused No. 1 is the husband of the deceased whereas accused No. 2 is the mother-in-law. By the impugned Judgment, the learned Additional Sessions Judge acquitted accused NO.2 of all the charges, but convicted the appellant-Accused NO.1 for the offences punishable under Sections 498-A and 302 IPC and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/-, in default to suffer simple imprisonment for three months for the offence punishable under Section 498-A IPC and also sentenced to suffer life imprisonment and to pay a fine of Rs. 3,000/-, in default, to suffer simple imprisonment for four months for the offence punishable under Section 3021PC. Challenging the said order of conviction and sentence, the appellant, who is accused No.1 before the trial Court, filed the present appeal. 4. The brief facts, which are relevant for consideration of this appeal, are stated as follows: The marriage of the deceased took place six years prior to her death. P.Ws. 1 and 2 are the parents of the deceased. P.W. 3 is the elder brother of the deceased. The deceased is wife of the accused NO.1. On 27-12-2003 at 6 p.m. the deceased lithe kerosene lamp as usual and kept it on the shelf. At about 3.30 a.m., when the kerosene lamp extinguished and she woke up and filled the kerosene in lamp again lit it, while putting the lamp on the shelf, it has slipped and the lamp fell on her body and she caught fire and on hearing the cries of the deceased the accused NO.1 came and extinguished the fire with blanket and she received burn injuries Atabout 7 a.m. she was brought to Government Hospital, Tandurin an auto by the accused. On28-12-2003 at 8.30 hours P.W. 14 received message from Government Hospital, Tandur then he registered a case in Crime No. 135 of 2003 u/s Woman Burning and took up investigation. 5. On28-12-2003 at 8.30 hours P.W. 14 received message from Government Hospital, Tandur then he registered a case in Crime No. 135 of 2003 u/s Woman Burning and took up investigation. 5. During the course of investigation, P. W. 14, who is investigating officer visited the scene of offence at Gopalpur village and conducted the scene of offence panchanama in the presence of mediators P.Ws. 8 and 9 and seized M.O. 1 plastic tin, M.O. 2 burnt pieces of clothes and examined P.Ws. 4 to 11. Later deceased was shifted to Osmania General Hospital, Hyderabad. On 30-12-2003 at about 12.30 p.m. the deceased passed away with burn injuries while undergoing treatment. P.Ws. 13and 20 conducted inquest over the body and on 21-12-2003 P .W. 10 and 20 performed autopsy over the corpse and opined that the cause of the deceased was due to burns. On 11-1-2004 accused were arrested and sent for judicial remand. After receiving relevant documents and on completion of investigation P.W. 16 filed charge-sheet. 6. During the course of the trial before the learned Additional Sessions Judge, the prosecution examined P.Ws. 1 to 16 and marked Exs. P-1 to P-14 documents, besides marking M.Os. 1 and 2. On behalf of defence, none were examined and no document was marked. 7. Considering the evidence on record, the learned Additional Sessions Judge acquitted Accused NO.2 of the offences with which she was charged and convicted and sentenced the appellant for the offences punishable under Sections 498-A and 302 IPC. Hence, the present appeal. 8. We have heard the learned counsel appearing for the appellant-Accused No.1 as well as the learned Additional Public Prosecutor appearing for the respondent-State. 9. Now, the point for determination in this appeal is whether the conviction and sentence passed by the trial Court against the appellant for the offences punishable under Sections498-Aand 3021PC can be sustained? 10. P.Ws. 1 and 2, who are the parents of the deceased, stated in their evidence that at the time of the marriage they gave dowry of Rs. 45,000/- and 3 tulas of gold and subsequently accused No.1 started harassing the deceased to get additional dowry. P .W. 3, who is none other than the bother of the deceased did not speak about the payment of dowry of Rs. 45,000/- and his evidence is also at variance from the evidence of P .Ws. 45,000/- and 3 tulas of gold and subsequently accused No.1 started harassing the deceased to get additional dowry. P .W. 3, who is none other than the bother of the deceased did not speak about the payment of dowry of Rs. 45,000/- and his evidence is also at variance from the evidence of P .Ws. 1 and 2 in regard to demand of additional dowry and also the occasions on which they were demanded and were paid. P.Ws. 5 and 6 shifted the deceased to the hospital after she received injuries. P.W. 6 did not support the version. Whereas P. W. 5 stated in his evidence that he and his wife Lakshmi shifted the deceased to hospital after she received burn injuries. The evidence of the remaining witnesses does not assume much importance, because they are in no way connected with the facts required to be established in proof of prosecution case. 11. The other important witness is P.W. 14 Sub-Inspector of Police, who initially registered the case in Crime No. 135 of 2003 under the head woman burns basing on the statement of the deceased recorded by him after she was admitted in the hospital with burn injuries. According to the said statement, the deceased got burn injuries accidentally as the kerosene lamp fallen on her saree. However, subsequently, on a requisition issued by the S.1. of police to P.W. 12 the Magistrate, P.W. 12 proceeded to the hospital and recorded the dying declaration ofthe deceased. The requisition issued by the S.1. of Police is marked as Ex. P-7 and the dying declaration recorded by the Magistrate is marked as Ex. P-8. Subsequently, during the course of investigation, P.W. 14 the S.1. of Police recorded the statement of the deceased under Section 161 Cr.P .C. and the deceased died on 30-12-2003 while undergoing treatment. 12. Since, no direct evidence regarding commission of offence by the appellant either in regard to the demand of additional dowry or in regard to pouring diesel and setting fire to the deceased is forthcoming, the entire case is based on 3 statements of the deceased recorded by the S.1 of Police (P.W. 14), the Magistrate (P.W. 12) and the S.I. of Police (P.W.14). 13. In her statement to the Sub-Inspector of Police basing on which the F.I.R. was registered, the deceased did not state anything about demand of dowry by the appellant. 13. In her statement to the Sub-Inspector of Police basing on which the F.I.R. was registered, the deceased did not state anything about demand of dowry by the appellant. According to her, the cause of her death was accidental which occurred when she was keeping a kerosene lamp in the shelf, which has fallen down due to which her saree caught fire. She further stated that her husband extinguished fire with the help of a blanket and subsequently he shifted her to hospital for treatment. 14. Whereas, in Ex. P-9 statement which was recorded by S.I. of Police under Section 161 Cr.P.C. during the course of investigation, the deceased stated that the appellant is harassing her to bring some amount and on which she brought an amount of Rs. 2,000/- from her parents and subsequently, appellant demanded for some more amount and she brought Rs. 4,000/ from her parents. She further stated that the appellant asked her to get an amount of Rs. 6,000/- from her parents for which, she expressed her inability. Regarding the cause of her injuries, she stated that at about 3.30 a.m. she woke up and was proceeding to go to toilet through verandah, thereafter her husband poured diesel on her and lit fire, she raised cries, her husband's elder brother came along with his wife and extinguished the fire. Her husband also acted as if he also tried to stop fire. Subsequently, she was taken to hospital by her mother-in-law and her husband's brother and his wife in an auto. She clarified in the statement that due to fear of her husband and his relatives, in the first instance she stated before the S.1. of Police the reason for her receiving burn injuries as accidental, but after arrival of her parents she gave the present statement which according to her is true. 15. It is pertinent to note that the same S.I. of Police who recorded Ex. P-8 statement of the deceased, also recorded the statement of the deceased under Section 161 Cr.P.C. under Ex. P-9 and both the statements are contradictory to each other on all material aspects. 16. 15. It is pertinent to note that the same S.I. of Police who recorded Ex. P-8 statement of the deceased, also recorded the statement of the deceased under Section 161 Cr.P.C. under Ex. P-9 and both the statements are contradictory to each other on all material aspects. 16. Coming to the statement of the deceased recorded by the Magistrate, she stated in the first instance that her mother-in-law is in habit of picking unnecessary quarrels with her and thereafter she stated that on yesterday's night her husband, who was fully drunk, poured diesel on her at 3.50 a.m. and set her on fire. She stated that her husband and mother-in-law asked her to bring some amounts only when the Magistrate specifically asked her whether they demanded her to bring any amount or dowry, which the Magistrate, in our view is not supposed to ask. Therefore, the fact remains that on her own she did not state to the Magistrate about the demand made by the appellant to bring any amount from her parents. The Magistrate also specifically asked how much amount was given towards dowry, for which the deceased responded that an amount of Rs. 45,000/- and 3 tulas of gold was given at the time of marriage to the appellant. 17. The crucial question requires consideration is basing on the three dying declarations, which are in the form of First Information Report, Statement of the deceased recorded under Section 161 Cr. P.C. during the course of investigation and the dying declaration recorded by the Magistrate (P.W. 16), the appellant can be convicted for the offences punishable under Sections 498-A and 302 I PC., in the absence of any direct evidence. It is well settled that if the dying declaration inspires confidence and is free from any tutoring and if no taint is attached to the dying declaration, it can form the basis for conviction, in the absence of any direct evidence. 18. Here is a case where First Information Report does not contain any fact relating to demand of dowry or any amount by the appellant of in-laws. From the averments of FI R which was subsequently treated as dying declaration, the death was accidental. Whereas from both the dying declarations namely 161 Cr. 18. Here is a case where First Information Report does not contain any fact relating to demand of dowry or any amount by the appellant of in-laws. From the averments of FI R which was subsequently treated as dying declaration, the death was accidental. Whereas from both the dying declarations namely 161 Cr. P. C. statement recorded by the very same S.I. of Police and the one recorded by the Magistrate on the requisition issued by the S.I. of Police, the deceased received burn injuries on account of a appellant pouring diesel and setting heron fire. The facts narrated by her are at variance. 19. In the dying declaration made to the Magistrate, she stated that her mother-in-law quarreled with her due to which she became angry and came out of the house to go to her parents' house, then her mother-in-law forcibly brought her back into the house, in the night her husband scolded her by threat. He also beat her telling her to leave their house. At that time, he was in fully drunken state and poured diesel on her at about 3.30 a.m. and lit her on fire. Whereas, in the dying declaration recorded by the S.I. of Police which is nothing but 161 Cr. P.C. statement, she stated that at 3.30 a.m. she was going to toilet through verandah, the husband poured diesel on her and lit heron fire. She did not state the fact that the incident took place while she was going to toilet to the Magistrate when he recorded the dying declaration. 20. Upon thorough examination of all the three dying declarations, we noticed some material inconsistencies and improvements on the material aspects. It is clear from the statement of the deceased recorded by the S.1. of Police that only on the arrival of her mother, the deceased stated that the reason for receiving her burn injuries was not accidental and the injuries were received because her husband poured diesel and set her on fire. Therefore, it is not possible to rule out the fact of tutoring by her parents after their arrival. 21. In view of the foregoing reasons, it is not possible for us to place reliance on any particular dying declaration. Therefore, it is not possible to rule out the fact of tutoring by her parents after their arrival. 21. In view of the foregoing reasons, it is not possible for us to place reliance on any particular dying declaration. Since, all the three dying declarations are mutually inconsistent on material particulars, we are of the view that it is not possible to pass a conviction solely basing on the dying declarations without there being any corroboration of independent source on material particulars. 22. On the aspect of dowry, the evidence of P.W. 1 to 3 being inconsistent and not in accordance with any of the versions given in the dying declarations recorded by S.I. of Police and the Magistrate and also in view of the fact the same is conspicuously absent in the F.I.R. the conviction recorded against the appellant for the offences under Sections498-Aand 302 IPC cannot be upheld. 23. In the result, the Criminal Appeal is allowed, setting aside the judgment of conviction and sentence, dated 27-2-2006, in Sessions Case No. 630 of 2004, passed by the VI Additional Sessions Judge, Ranga Reddy District, Vikarabad (FastTrack Court), against appellant A-1, for the offences punishable under Sections 498-Aand 3021PC and he is acquitted of the said offences. 24. The appellant A-1 shall be released forthwith, if not required in any other case. The amount of fine, if any, paid shall be refunded to him.