Andhra Pradesh High Court - Amravati
B.Dasari Rajesh, Anantapur Dt., vs State Of Ap., Rep Pp., on 20 October, 2022
Author: C.Praveen Kumar
Bench: C. Praveen Kumar
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
Criminal Appeal No. 854 of 2015
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) Heard Sri D. Kodanda Rami Reddy, learned Counsel appearing for the Appellant/Accused No. 1 and Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, appearing for the State.
2) The present appeal is filed by Accused No.1 against Judgment in SC No.383 of 2012 on the file of Additional Sessions Judge, Hindupur.
3) Originally Accused No.1 and Accused No.2 were tried on four charges. Vide judgment, dated 16th March, 2015, the learned Sessions Judge while acquitting Accused No.2 of all charges, convicted Accused No.1 for the offence punishable under Section 304B of Indian Penal Code ['I.P.C.'] and sentenced him to serve imprisonment for life, for causing the death of his wife on 28.05.2011 at 2.30 P.M. in his house. Further, the learned Sessions Judge acquitted him of Section 2 4 of Dowry Prohibition Act ['D.P. Act'] while convicting under Section 3 of D.P. Act. However, no separate sentence was awarded.
4) Accused No.1 is the son of Accused No.2. PW1 is the mother of the deceased and PW2 is the brother of the deceased. While the deceased Saraswathi, who is the daughter of PW1 was given in marriage to Accused No.1 about one year prior to the offence. It is said that, at the time of marriage, three Tulas of gold was given to Accused No.1. Both of them lived happily for some time and later both the accused started harassing the deceased to bring dowry, which was informed by the deceased to her parents. They informed the deceased that they have no money and that they are also living by doing coolie work. It is said that for a period of three days thereafter they were good terms and later their villagers informed that deceased was in Government Hospital at Anantapur with burn injuries.
5) PW12, who was working as Civil Assistant Surgeon in Government Hospital at Kalyandurg, is said to have examined the injured on 28.05.2011 at about 5.30 P.M. and noticed the 3 deceased with burn injuries all over the body except loin part of abdomen and below the umbilicus of abdomen with nearly about 85 to 90 percent of the body burnt. Ex.P9 is the Wound Certificate.
6) At about 10.15 P.M. PW-14 - Principal Junior Civil Judge, Anantapur, received a requisition from a duty doctor Government Hospital, Anantapur, for recording the dying declaration of the deceased. Ex.P.10 is the requisition of the duty doctor. Immediately, he rushed to Government General Hospital, Anantapur, and reached there at 10.25 P.M. After identifying the injured with the help of duty doctor, and after ascertaining the mental condition of the injured, he recorded the statement of the injured, which is placed on record as Ex.P11. Ex.P12 is the certificate of the duty doctor.
7) On receiving information about the deceased being admitted in Anantapur Hospital, with burn injuries caused by the Accused, over phone from the Villagers, PW1 along with her Son [PW2], husband and others went to Anantapur Hospital and found the deceased with complete burn injuries, but was speaking. On enquiry, the deceased informed her 4 that, her mother-in-law poured kerosene and her husband [Accused] lit fire to her. On the next day, PW1 and PW2 went to Ramagiri Police Station and presented a report before PW10, basing on which, a case in Crime No.25/2011 came to be registered under Sections 498A and 307 read with 34 of I.P.C. and Sections 3 and 4 of D.P. Act. Ex.P.7 is the report. He then transmitted a copy of the F.I.R. to Judicial First Class Magistrate, Dharmavaram. PW10 claims to have examined P.W.1 and recorded the statement. At about 2.30 P.M., on that day, PW10 left the Police Station and visited Government Hospital, Anantapur at 4.00 P.M. and recorded the statement of the injured.
8) On 30.05.2011 at 7.00 A.M., PW10 proceeded to the scene of offence and in the presence of PW5 observed the scene of offence. During the said proceedings, he seized kerosene stove, match box containing match sticks, which are marked as M.Os. 1 and 2, respectively. He also prepared a rough sketch of the scene of offence, which is placed on record as Ex.P8.
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9) On 04.06.2011 at 7.00 A.M., PW10 received a phone call from outpost Government Hospital, Anantapur, informing about the death of the injured. Accordingly, he altered the section of law to one under Sections 302 and 304B I.P.C. After registering the crime, he informed the same to PW11 - Sub-Divisional Police Office, Dharmavaram, who on receipt of the said information, proceeded to Government General Hospital, Anantapur, and in the presence of Mandal Executive Magistrate, conducted inquest over the dead body. Ex.P4 is the Inquest Report. During inquest, he examined PW1, PW2 and others. Thereafter, he proceeded to the scene of offence and prepared a rough sketch of the scene again.
10) PW9 - the Assistant Professor, Forensic Medicine, Government Medical College, Anantapur, along with Dr. T.C. Anjinamma, jointly conducted autopsy over the dead body of the deceased and issued Ex.P6 - post-mortem certificate.
11) On 13.06.2011, he arrested the accused and remanded them to judicial custody. After completion of investigation, the successor of PW11 filed a charge-sheet, which was taken on 6 record as P.R.C. No.56 of 2011 on the file of Judicial First Class Magistrate, Dharmavaram.
12) On appearance of the Accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the same was committed to Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the Accused, to which, the Accused pleaded not guilty and claimed to be tried.
13) In support of its case, the prosecution examined PW1 to PW14 and got marked Ex.P1 to Ex.P12, beside marking M.Os. 1 and MO.2. After completion of prosecution evidence, the Accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied. In support of the case, the Accused got marked Ex.D.1 and also examined D.W.1.
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14) Relying upon the two dying declarations and the evidence on record, the learned Sessions Judge while acquitting the accused for the offence under Section 302 and 498A of I.P.C. and Section 4 of D.P. Act, convicted A.1 alone for the offence punishable under Section 304B of I.P.C. and Section 3 of D.P. Act, against which the present appeal is filed.
15) (i) Sri. D. Kodanda Rami Reddy, learned counsel appearing for appellant/accused No.1 mainly submits that the prosecution has not come forward with true version of the offence and that the earliest version of the injured given before the Magistrate, which is marked as Ex.D1 was suppressed. According to him, a reading of two dying declarations would clearly indicate that the deceased committed suicide and that it is not a case of murder and further the allegation of demand for dowry is omnibus in nature. He further submits that, having disbelieved the evidence against Accused No.2, the learned Sessions Judge erred in convicting Accused No.1 alone for the same offence on the basis of same evidence. He further submits that the 8 ingredients constituting the offence under Section 304B are not at all made out.
16) On the other hand Sri S.Dushyanth Reddy, learned Public Prosecutor, appearing for the State opposed the same contending that, as the evidence on record show that there was demand for dowry three days prior to the incident and, as such, the trial court invoked Section 113B of Indian Evidence Act to convict Accused No. 1 under Section 304B of I.P.C., which warrants no interference.
17) The point that arises for consideration is, whether the prosecution was able to bring home the guilty of the Accused No.1 beyond reasonable doubt?
18) As seen from the record, out of 13 witnesses examined by the prosecution, PW4 and PW5 did not support the prosecution case and they were treated hostile and cross- examined by learned Public Prosecutor. The entire case now rests on the evidence of PW1 to PW3, the two dying declarations, coupled with the admissions of the doctor, who treated the injured at the earliest point of time. 9
19) Insofar as the cause of death of the deceased is concerned, the evidence of PW3, who is an independent witness, deposed that, about two years ago at about 3.00 or 3.30 P.M., while he was having lunch in his house, he heard cries from the house of the Accused. When he came out of his house, found the deceased on the road burning in flames. He put off those flames and telephoned to 108 and sent the deceased to Kalyandurgam.
20) PW12, the Civil Assistant Surgeon, Government Hospital, Kalyandurg, in his evidence deposed that, on 28.05.2011 at about 5.30 P.M., he examined B. Saraswathi [deceased] and found burn injuries all over the body and about 85 to 90% body was burnt. He issued Ex.P9 - Wound Certificate. In the cross-examination, he admits that, his inquiries with the injured [deceased] revealed that, she is alleged to have been injured due to pouring of kerosene at 2.30 P.M. on 28.05.2011 at her house by herself. It would be appropriate to extract the said endorsement, which is as under:
"On my enquiry, she stated that she was alleged to have been injured due to pouring of kerosene at 10 about 2-30 P.M, on 28-5-2011 at her house by herself to cause the burns".
21) Even, Ex.P9 Wound Certificate issued by the doctor contains an endorsement to that effect. Therefore, the earliest version, spelt out by the deceased was that she herself poured kerosene and set herself on fire.
22) The second dying declaration, which is placed on record is Ex.D1. Though, this dying declaration was recorded by a Magistrate, but he was not examined by the prosecution. Further, the prosecution has suppressed this version and, as such, the accused was forced to mark it as Ex.D1. This dying declaration, which came to be recorded pursuant to requisition received from the hospital staff at 5.55 P.M. on 28.05.2011, categorically states that the deceased herself set on fire by pouring kerosene.
"With these answers of the patient, I satisfied and found that she is conscious and coherent and she can give her statement. Then I proceeded to record her statement as follows:-
What was happened?
As I am suffering with severe stomach-ache, due to unbearable stomach-ache, I done this work, by which time none were present in the house. 11 House means -n-laws house or parental house? In-laws house.
Who took you to hospital and got admitted? My mother-in-law, father-in-law and husband. At what time the incident was taken place? Today's afternoon at 2. P.M. How could she burnt?
Set fire by pouring kerosene. At which time after the incident, your in-laws and husband came?
At about 3 P.M."
23) Things started changing after the arrival of the family members to the hospital. In the cross-examination, PW1 admits that they went to the Government Hospital, Anantapur, at 6.00 P.M. on receipt of information from others. Even PW2 who lives at place, which is 60 Kilometres away from the house of the accused, reached the hospital by 6.00 P.M. Thereafter, the prosecution party starting interfering and another dying declaration came to be recorded by the Magistrate at 10.30 P.M., with a different version. 12
24) A perusal of the said declaration which is placed on record as Ex.P1, would show that the accused poured kerosene and set her on fire. It is further stated that the accused/husband poured kerosene, which was kept in the bottle and then set her on fire with the match stick. It is further stated that by that time her mother-in-law was there, in the house, but she did not interfere and that the father-in- law was not present in the house. Later her husband and his mother took her to RDT, Kalyandurg Hospital. It would be appropriate to extract the same which is as under:
"What happened?
Ans: My husband beat me. On the previous day morning beat me. My husband poured kerosene on me and set fire. In my house, food used to prepare on kerosene hearth. My husband poured kerosene on me kept in the bottle and set fire with match stick. By the time of the said incident, my mother-in-law is in the house and she did not interfere. At that time, my father-in-law was not present in the house. By the time when the flames were raised, my husband is present in the house. Later my husband, mother-in- law took me to RDT, Kalyanadurg Hospital. The said incident was taken place". Xxx Left leg great toe impression.13
25) From the statement of this witness, it appears as if her husband beat her a day prior to the date of incident and, thereafter, poured kerosene and set her on fire. It also discloses that her husband and mother-in-law took her to Kalyandurg hospital. This statement, which is sought to relied upon by the learned Additional Public Prosecutor, in our view, not only runs contra to the earliest declaration made before the doctor, Magistrate [not examined] (Ex.D1) and also before the police, but also runs contra to the evidence of PW3. It is the version of PW3 that, on hearing cries, he came out of the house and noticed the deceased in flames. He telephoned to 108 ambulance and sent the deceased in a van to Kalyandurg Hospital. His evidence does not speak about the presence of accused or his mother at that time or they accompanying the injured to Kalyandurg Hospital. Having regard to the above, the learned Sessions Judge acquitted the Accused for the offence under Section 302 I.P.C. and convicted Accused No.1 for the offence punishable under Section 304B I.P.C.
26) The question now is, whether ingredients constituting the offence punishable under Section 304B I.P.C., are made out?
Section 304B of I.P.C. reads as under:
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"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
27) In order to establish an offence under Section 304B I.P.C., it has to be established that, the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances. Further, the death should have been within seven years of her marriage and "soon before her death" she should have been subjected to cruelty or harassment for or in connection with dowry.
28) It is no doubt true that, in the instant case, the death as per the three statements of the deceased is by way of suicide, which took place within one year of the marriage.
29) The question is, whether there was any harassment for dowry soon before her death?15
30) PW1 who is mother of the deceased in her evidence deposed that, for a period of three months, after the marriage, both the deceased and Accused No.1 lived happily and, thereafter, the accused demanded the deceased to bring dowry, which was informed to them on phone by the deceased. Three days later, the villagers informed over phone about the accused pouring kerosene on the deceased and setting her on fire and the deceased being taken to hospital.
But, in the chief-examination, she further states about being examined by the police immediately after the lodging of the report. But, in the cross-examination, she admits that, she was never examined by the police. It would be appropriate to extract the same, which is as under:
"Till I gave complaint to police, police did not come to hospital. Police did not examine the deceased in his presence. Police did not accompany me to Govt., hospital, Anantapur after I gave Ex.P.1 complaint. After giving Ex.P.1 complaint police did not examine me. After giving Ex.P.1 complaint I return to Govt., hospital, Anantapur at about 6-00 pm., and I was with my daughter for about one hour. During that one hour period police, doctors or any others came there".
31) Even assuming that PW1 was examined by the police, her evidence is to the effect that her daughter informed them 16 on phone about the accused demanding additional dowry. Her evidence does not indicate as to the quantum of amount demanded as additional dowry.
32) Be that as it may, when the two accused are alleged to have demanded dowry and when the second accused is acquitted, question of convicting Accused No.1 on the same evidence for the same offence, may not be proper. Even the evidence of PW2 toes in line with the evidence of PW1. According to him, for a period of three or four months after the marriage, the deceased and Accused No.1 and Accused No.2 lived happily and, thereafter, both the accused started harassing the deceased. The said fact was informed by the deceased over phone and three days thereafter the incident in question is said to have taken place. In fact, as observed by us, practically there is no discussion at all by the learned Sessions Judge, for convicting Accused No.1 for the offence punishable under Section 304B of I.P.C.
33) Coming to the evidence of PW3, who is an independent person and whose house is said to be two houses away from the house of accused, he in his evidence deposed that, after 17 the marriage, the accused and deceased and father of Accused No. 1 were living together in their house. According to him, Accused No. 1 and deceased were living together and were in good terms. This evidence of PW3 runs contrary to the evidence of PW1 and PW2.
34) At this stage, we also intend to refer to the evidence of DW1, who is none other than Accused No.1 himself. According to him, he is eking out his livelihood by doing coolie work. When his wife sustained burn injuries, she was admitted in Kalyandurg Government Hospital, at first instance. The doctor at Kalayandurg Hospital sent a requisition to J.F.C.M., to record dying declaration of the deceased. According to him, Ex.D1 is the dying declaration. Strangely, the Accused No. 1 was not cross-examined, in a manner, required to be done by the Public Prosecutor. No proper suggestions were given to him. On the other hand, it was elicited that, the accused himself took the deceased to Government Hospital, Kalyandurg. To a suggestion that the dying declaration was an outcome of tutoring, was denied. 18
35) From the above evidence, it is clear that, the allegation of demand for dowry was against both the Accused, but Accused No. 2 was acquitted of the said charges. Secondly, in the dying declaration recorded by the Magistrate at 10.30 P.M., which is placed on record as Ex.P11, there is no reference to any demand of additional dowry by any of the accused. If really, both the accused demanded additional, as stated by PW1 and PW2, the same would have been uppermost in the mind of the deceased and she will not have missed mentioning the same in the dying declaration. Therefore, this allegation of demand of additional dowry, in our view, came to be invented by the prosecution at a later stage.
36) Having regard to above, we feel that the circumstances relied upon by the prosecution are not proved beyond doubt and the circumstances do not form a complete chain, connecting the accused with the crime. In the absence of any cogent and convincing evidence, we feel that, it is not be safe to convict the appellant/Accused No.1 for the offence punishable under Section 304B I.P.C. basing on the evidence adduced. 19 Accordingly, we are inclined to acquit the Appellant/Accused No.1 by extending the benefit of doubt.
37) In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/Accused No. 1 in the Judgment, dated 16.03.2015, in Sessions Case No. 383 of 2012 on the file of the Additional Sessions Judge, Hindupur, for the offences punishable under Sections 304B I.P.C. and Section 3 of Dowry Prohibition Act, is set- aside and he is acquitted for the said offences. Consequently, the appellants/Accused No. 1 shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the appellants/accused No. 1 shall be refunded to him .
38) Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI Date: 20.10.2022 dmr 20 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI Criminal Appeal No.854 of 2015 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 20.10.2022 dmr