Andhra HC (Pre-Telangana)
Changala Jaya Sankara Rao vs State Of A.P. on 6 March, 1996
Equivalent citations: 1996(1)ALD(CRI)507, 1996(1)ALT(CRI)560, II(1996)DMC625
Author: K.B. Siddappa
Bench: K.B. Siddappa
JUDGMENT K.B. Siddappa, J.
1. These appeals are filed against the judgment passed in Sessions Case No. 51 of 1991 on the file of the Addl. Metropolitan Sessions Judge, Visakhapatnam. Criminal Appeal No. 311 of 1993 is filed by the accused and Crl. Appeal No. 357 of 1993 is filed by the State.
2. The following are the brief facts :
The charge-sheet is laid by the Assistant Commissioner of Police, Law and Order, South Visakhapatnam in Cr. No. 4 of 1991 of Gopalapatnam Police Station under Section 304-B, I.P.C. The accused/appellant is the husband of one Venkatalakshmi who died in 21.1.1991. Their marriage was per- formed in February, 1989 and they were blessed with a son. On 17.1.1991 PW 14 Head Constable of Gopalapatnam Law and Order P.S. received a phone intimation from PW 13 Head Constable of I Town Police Station that the accused got admitted the deceased with burn injuries in casualty ward of K.G. Hospital stating that the deceased sustained burn injuries while cooking. Thereupon PW 14 went to the Hospital and recorded the state- ment of the deceased in the presence of the Chief Medical Officer. The statement revealed that the accused forcibly took the deceased and her son on 17.1.1991 at 2 p.m. from the Registrar's Office, Visakhapatnam, to their house at Indiranagar on a scooter. Thereafter the accused beat her with hands on her both upper arms and on her back. Being enraged by that act the deceased poured kerosene on her body and set fire to herself at 6.00 p.m. The accused and her brother-in-law put off the fire. PW 3 and Ors. responded to the cries of the deceased. She was found lying with burn injuries in the dining hall. The accused with the assistance of his elder brother and one Appala Narasamma took her in an auto to K.G. Hospital and got her admitted. PW 14 registered the case in Cr. No. 4/91 under Section 498-A, IPC. On 18.1.1991 PW 15, went to the scene of offence at 5.30 p.m. alongwith another Constable and kept him as guard at the scene. None of the inmates was present at that time. He went to K.G. Hospital and examined the deceased. Afterwards he came to the scene of offence and seized the burnt cloth pieces and other incriminating articles in the presence of mediators under a cover of panchanama. He Prepared a rough sketch of scene of offence also. He examined PW 1 and others. He went to K.G. Hospital to examine the blood-relations of the deceased. Though the sisters and mother of the deceased were present they did not co-operate and they did not give any statements. They stated that the Magistrate should record the dying declaration of the deceased. On requisition given by PW 15, Vlll Metropolitan Magistrate, Gajuwaka recorded the dying declaration of the deceased on 18.1.1991 at 9.00 p.m. in the presence of a student Nurse as a Doctor was away. PW 15 obtained a copy of the dying declaration recorded by the Magistrate and altered the F.I.R. to Sections 307 and 498-A, I.P.C. and sent Express F.I.Rs. to all the concerned Officers. The Assistant Commissioner of Police, PW 16 took up investigation on 19.1.1991 and examined the deceased in K.G. Hospital. The deceased during her examination corroborated the contents of the dying declara- tion. She stated that she spoke at the earlier instance having been afraid that the accused may not treat her son properly if she tells truth. She stated that the accused beat her with hands, pulled her gold Pusthelu Thadu and black beeds chain from her neck, he sprinkled kerosene all over her body and set fire to her body with a match-stick on the ground that the accused was not properly treated at the time of marriage. Her sister and mother stated before PW 16 that the accused is a money-minded man and is also a suspicious type. He was demanding more dowry in the shape of fridge, television and scooter. He was harassing the deceased mentally and physically.
2. On 21.1.1991, the mother of the deceased presented a report before PW 16 at 12.15 hours when he was at Harbour P.S. stating that the injured succumbed to the burn injuries on the same day at 7.20 a.m. in the hospital. Basing on the report PW 16 altered the Section of law to Sections 498-A and 302, I.P.C. and issued express F.I.R. On receiving requisition the Mandal Revenue Officer, Visakhapat- nam, held inquest over the dead-body of the deceased in the presence of mediators who opined that the accused is responsible for the death of the deceased, that he set fire to her at their residence on 17.1.1991 at 6.00 p.m. The body was sent to the Professor of Forensic Medicine, Andhra Medical College and a team of Doctors conducted autopsy over the dead-body and issued the post-mortem certificate. They opined that the deceased died of shock due to burns. On the same day the accused was arrested at the Railway platform at Waltair and he was sent for remand. After completing the investigation, PW 16 filed the charge-sheet responded to the cries of the deceased. She was found lying with burn injuries in the dining hall. The accused with the assistance of his elder brother and one Appala Narasamma took her in an auto to K.G. Hospital and got her admitted. PW 14 registered the case in Cr. No. 4/91 under Section 498-A, IPC. On 18.1.1991 PW 15, went to the scene of offence at 5.30 p.m. alongwith another Constable and kept him as guard at the scene. None of the inmates was present at that time. He went to K.G. Hospital and examined the deceased. Afterwards he came to the scene of offence and seized the burnt cloth pieces and other incriminating articles in the presence of mediators under a cover of panchanama. He Prepared a rough sketch of scene of offence also. He examined PW 1 and others. He went to K.G. Hospital to examine the blood-relations of the deceased. Though the sisters and mother of the deceased were present they did not co-operate and they did not give any statements. They stated that the Magistrate should record the dying declaration of the deceased. On requisition given by PW 15, Vlll Metropolitan Magistrate, Gajuwaka recorded the dying declaration of the deceased on 18.1.1991 at 9.00 p.m. m the presence of a student Nurse as a Doctor was away. PW 15 obtained a copy of the dying declaration recorded by the Magistrate and altered the F.I.R. to Sections 307 and 498-A, I.P.C. and sent Express F.I. Rs. to all the concerned Officers. The Assistant Commissioner of Police, PW 16 took up investigation on 19.1.1991 and examined the deceased in K.G. Hospital. The deceased during her examination corroborated the contents of the dying declara- tion. She stated that she spoke at the earlier instance having been afraid that the accused may not treat her son properly if she tells truth. She stated that the accused beat her with hands, pulled her gold Pusthelu Thadu and black beeds chain from her neck, he sprinkled kerosene all over her body and set fire to her body with a match-stick on the ground that the accused was not properly treated at the time of marriage. Her sister and mother stated before PW 16 that the accused is a money-minded man and is also a suspicious type. He was demanding more dowry in the shape of fridge, television and scooter. He was harassing the deceased mentally and physically.
2. On 21.1.1991, the mother of the deceased presented a report before PW 16 at 12.15 hours when he was at Harbour P.S. stating that the injured succumbed to the burn injuries on the same day at 7.20 a.m. in the hospital. Basing on the report PW 16 altered the Section of law to Sections 498-A and 302, I.P.C. and issued express F.I.R. On receiving requisition the Mandal Revenue Officer, Visakhapat- nam, held inquest over the dead-body of the deceased in the presence of mediators who opined that the accused is responsible for the death of the deceased, that he set fire to her at their residence on 17.1.1991 at 6.00 p.m. The body was sent to the Professor of Forensic Medicine, Andhra Medical College and a team of Doctors conducted autopsy over the dead-body and issued the post-mortem certificate. They opined that the deceased died of shock due to burns. On the same day the accused was arrested at the Railway platform at Waltair and he was sent for remand. After completing the investigation, PW 16 filed the charge-sheet.
Court rendered in the case of Smt. Katnla v. State of Punjab, 1993 Crl.L.J. 68= I (1993) DMC 4 (SC). The Supreme Court held :
"We must observe that PW 2 simply recorded the statement of the deceased but the contents of that statement have to be subjected to a close scrutiny in the light of many other circumstances since the conviction has to be based on the sole dying declaration Ex. PB/2. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declarations they should be consistent particularly in material particulars."
8. The learned Counsel also relied upon a judgment of the Supreme Court rendered in State of Gujarat v. Khumansingh Karsan Singh, AIR 1984 SC 1641, wherein it was held-
"The Courts below looked for corroboration in view of the inconsistency in the first dying declaration and the subsequent two dying declarations. The Courts below came to the conclusion that in view of the said inconsisten- cies and in view of the bad blood between the deceased and the mother-in- law, it was not possible to place implicit reliance on her dying declaration in the absence of some assurance from any other independent evidence. The High Court pointed out a number of short-comings so far as the first dying declaration Ex. P4 is concerned. The High Court was also of the view that the possibility of an accidental death could not be ruled out. In that view of the matter the High Court felt it unsafe to base a conviction merely on the aforesaid three dying declarations."
9. We do not think that the view taken by the Courts below is so erroneous as would require interference by this Court in exercise of jurisdiction under Article 136 of the Constitution. There is no doubt that there is inconsistency between the first dying declaration and the subsequent two dying declarations which betrays the possibility of her being amenable to tutoring. It is quite clear the relationship was strained due to the bad blood between her and her mother-in-law. The possibility of false involvement could not be ruled out and the High Court, therefore, thought that in the absence of corroborative evidence, it is unsafe to rely mainly on the inconsistent dying declarations. We do not think that this case demands our interference under Article 136 of the Constitution. Hence the appeal fails and is dismissed. Bail bonds to stand cancelled. I see considerable force in the submissions of the learned Counsel for the accused.
10. In the case on hand the learned Sessions Judge relied upon Ex. P7. He did not give cogent reasons as to why he has given much importance to Ex. P7. However, in view of the ratio of the above judgments, it should be held that the dying declarations including Ex. P7 cannot be taken into consideration, in view of their varying contents. On this aspect ever the oral evidence does not support the prosecution case. PW 1 is a neighbour. She stated that 1/2 years ago at 6.00 p.m. she was in her house and she heard the cries of the deceaed saying 'Amma', 'Amma'. Then she went into the house. She found the deceased on fire. She covered her body with a door curtain and she was taken to the hospital in an auto. In the cross- examination she stated that she asked the deceased as to what happened. The deceased replied that due to stove she caught fire. PW 1 did not see any kerosene bottle or match-stick in the room where the deceased was lying i.e. dining hall. This witness was sought to be declared as hostile, but it was refused. This evidence is supported by the evidence of PW 16 who is the Investigating Officer in this case. He clearly stated that the stove they found was in working condition. There were no traces of kerosene in the room etc. If really the accused had poured kerosene on the person of the deceased and had set fire, there should be kerosene on the floor of the kitchen room where the deceased was lying after the accident. It is further stated that immediately after the accident the deceased was shifted in an auto to the Hospital. In such a case the body and clothes of the deceased should be smelling kerosene. However, in Ex. P8 the Doctor opined that there is no smell of kerosene. This indicates that no kerosene is poured on the body of the deceased and no force is used against the deceased at the time of the incident. Further, PW 8 the Doctor states that there were many relations of the deceased in the hospital at the time of recording the dying declarations. May be the contents of Ex. P7 were the out-come of the advice given by the relations. Therefore, the circumstances in this case are more in favour of the accidental death rather than suicidal or homicidal death.
11. Mr. C. Padmanabha Reddy, further submitted that there is no case even for an offence punishable under Section 498-A, IPC. PWs 1 to 4 are related to the deceased. PWs 2 and 4 are sisters. PW 3 is the mother of the deceased. PW 1 is a neighbour of the deceased. PW 2 in her evidence stated that the accused used to harass the deceased for more dowry. At the time of the marriage, the accused was given Rs. 15,000/- towards dowry, one gold ring and one wrist watch. Her sister the deceased was given 4 tolas of gold. After the marriage the deceased went and joined the accused. After sometime she came back and stated that she was being harassed by the accused for half-a-tola of gold towards Ashada Katnam". She was sent back after paying 'Sare Samans' like cots, steel Samans, sofa, dressing table etc. worth about Rs. 20,000/- Even then also the accused began to harass the deceased for fridge, T.V. etc. He was beating her on the ground that the deceased could not get sufficient dowry etc. PW 3 also stated that some dowry was given to the accused at the time of the marriage. On enquiry by PW 3 the deceased used to say that she was being harassed for not giving articles. PW 3 further says that 'Sare Samans' worth about Rs. 20,000/- were also given to the deceased. However, the harass- ment continued. PW 4 who is another sister of the deceased also speaks about the Samans worth Rs. 20,000/- given towards dowry at the time of the marriage. She also says that the deceased was being harassed by the accused for T.V. and Fridge and for getting more dowry etc. But curiously all these witnesses did not say anything about the harassment in their Section 161, Cr.P.C. statements. PW 16 who is the Investigating Officer in this case has categorically stated that PWs 2, 3 and 4 did not say anything about the dowry demand and the dowry paid at the time of the marriage. The contradictions in the evidence of PW 3 are marked as Ex. Dl. Ex. D2 is the contradiction marked in the evidence of PW 4. The harassment for dowry etc. is introduced for the first time during the trial. Further none of the dying declarations Exs. P4, P6 and P7 refer to the harassment for dowry etc. I see considerable force in this submission. PWs 2,3 and 4 for the first time stated before the Court all the particulars with regard to the harassment. This cannot be believed. In Ex. P7 it is only stated that she was beaten because she attended the marriage of her sister's son without his permission. Therefore, the case under Section 498-A is also not made out.
12. I have already held that the circumstances in this case are more in favour of the accidental death. Therefore, the accused cannot be held responsible for the death of the deceased. Further, a mere beating on one occasion is not sufficient to constitute cruelty under Section 498-A, IPC.
13. For the aforesaid reasons, I hold that the appellant/accused is not guilty of any of the offences and he is accordingly acquitted of all the charges. Accord- ingly, Criminal Appeal No. 311/93 is allowed and Criminal Appeal No. 357/93 is dismissed.