Andhra HC (Pre-Telangana)
Sirumalla Bhumesh vs State Of A.P. on 6 August, 2007
Equivalent citations: 2008CRILJ223
JUDGMENT P. Swaroop Reddy, J.
1. This appeal is filed against the judgment of the learned II Additional Sessions Judge (Fast Track Court), Adilabad in S.C. No. 119 of 2003. The appellant, who was A-1 before the learned trial Judge was convicted for the offence under Section 302, I.P.C. and sentenced to undergo imprisonment for life, apart from fine of Rs. 5.000-00 in default to suffer simple imprisonment for three months. A-1, the present appellant is the son of A-2, who died during the pendency of the case.
2. The prosecution case is that A-1's marriage was performed with the deceased, Radha @ Laxmi, two years prior to her death on 9-5-2001. At the time of marriage no dowry was given. After the marriage of the deceased, the marriage of the elder sister of the deceased was performed at which time an amount of Rs. 10,000.00 was given towards expenditure. Thereafter A-1 started feeling that he was not given any dowry and started harassing the deceased, asking her to get dowry equal to the amount given to her sister. A-2 instigated A-1 and they drove out the deceased from their house. The parents of the deceased could not fulfil the demand of the accused. While so, on 25-2-2001 at about 10.00 a.m., A-1 beat the deceased and both the accused poured kerosene and set fire to her. When the persons present there tried to rescue her, A-2 obstructed and warned them. The neighbours ultimately extinguished the fire and shifted the deceased to Government Hospital, Boath. PW-1, mother of the deceased gave complaint, on the basis of which a case under Sections 307 and 498-A, I.P.C. and Sections 3 and 4 of Dowry Prohibition Act was registered and investigation was taken up. The dying declaration of the deceased was got recorded by the learned Judicial Magistrate of First Class, Boath. On 9-5-2001 the deceased succumbed to the injuries while undergoing treatment. Thereafter, the section of law was altered to one under Section 304-B. I.P.C. and after completion of investigation, charge sheet was filed against both the accused.
3. The following charge was framed against both the accused.
That you A-1 and A-2 on or about the 25th day of February, 2001 at about 10.00 a.m. at Boath you A-1 beat the deceased, Sirumalla Radha alias Laxmi and both of you poured kerosene oil on her and lit fire with an intention to kill her and as a result she sustained burn injuries and while undergoing treatment at Government Hospital, Boath, she succumbed to burn injuries on 9-5-2001 at 1.30 p.m. and that you thereby committed an offence punishable under Section 302, I.P.C. and within my cognizance.
Alternatively:
That you A-1 and A-2 on or about 25th day of February, 2001 at about 10.00 a.m. at Boath you A-1 beat the deceased, Sirumalla Radha alias Laxmi and both of you poured kerosene oil on her and lit fire with an intention to kill her and as a result she sustained burn injuries and while undergoing treatment at Government Hospital, Boath, she succumbed to burn injuries on 9-5-2001 at 1.30 p.m., that her death occurred within seven years of her marriage, that she was subjected to cruelty or harassment by you in connection with demand for dowry and that you thereby committed an offence punishable under Section 304-B, I.P.C. and within my cognizance.
4. As already referred, during the pendency of the trial, A-2 died.
5. On behalf of the prosecution PWs. 1 to 18 were examined and Exs. P-1 to P-15 were marked, apart from Mos 1 to 3. Out of the witnesses examined on behalf of the prosecution, PW-1 is the mother of the deceased. She deposed that A-l was the son of her husband's sister: the deceased was given in marriage to him and no dowry was given at the time of marriage and for two years they lived happily. One year after their marriage, the marriage of the elder sister (Sunitha) of the deceased was performed at which time some amount was paid to meet the marriage expenditure. She received information about the death of her daughter and that no body was responsible for her death. PW-2 is the father of the deceased. He also spoke similar to PW-1 and did not state anything against the accused. He specifically stated that the accused was not responsible for the death of the deceased. PW-3 is a neighbour of the accused. His evidence is that on the date of the incident he heard cries of people; went to the house of the accused and found the deceased in flames. They extinguished the fire and shifted her to Government Hospital, Boath. He stated that he is not aware as to how the deceased sustained injuries. PW-4 is a resident of Boath, the place of the accused. His evidence is that he has seen the deceased coming out of the house with flames. Many people gathered there and extinguished fire. He is not aware as to how the deceased received injuries. She was shifted to Government Hospital. PW-5 is also a resident of Boath. His evidence is that the deceased was coming out from the house with flames. Many people gathered there and extinguished the fire. He is not aware as to how the deceased received injuries. She was shifted to Hospital. PW-6 is another neighbour of the accused. His evidence is that at the time of the incident many people gathered at the house of the accused; out of curiosity he went there and found the deceased with burn injuries. The deceased was shifted to the hospital on a cot and he also carried the cot along with some others. PW-7 is also a resident of Boath. He stated that on the date of the incident, he found many people gathered at the house of the deceased. He also found the deceased with burn injuries and he helped in shifting her to the Government Hospital, by carrying the cot. PW-8 is another person that carried the deceased to the Hospital on the cot along with PWs 6 and 7. PW-9 is the elder sister (Sunitha) of the deceased, after whose marriage troubles started in the marital life of the deceased. She stated that one year after the marriage of the deceased, her marriage was performed and at that time her parents gave Rs. 10,000.00 and presented half tola gold. No dowry was paid to the accused. On learning that the deceased suffered burns, she went to the Hospital and saw the deceased. She is not aware as to how the deceased sustained burn injuries. PW-10 is the husband of PW-9. He has stated that there are no disputes between the accused and the de ceased. He is not aware as to how the deceased received burns. PW-11 is a panch for the scene of offence and seizure panchanama, Ex. P-9, PW-12 is the panch for the inquest panchanama, Ex P-10. PW-11 is the Assistant Sub-Inspector of Police, who received the complaint-Ex. P-1, registered the case and issued FIR (Ex. P-11). He stated that he went to the Government Hospital and found the victim with burn injuries; recorded her statement under Section 161, Cr.P.C. and requested the Medical Officer to send requisition to the learned Judicial Magistrate of First Class, Boath (PW-17) for recording the dying declaration of the deceased and accordingly the learned Magistrate recorded the dying declaration (Ex. P-l5) and he continued further investigation. PW-14 is another panch for scene of offence and seizure panchanama Ex. P-9. PW-15 is the Medical Officer that conducted autopsy on the dead body of the deceased. He stated that he found burns all over the body of the deceased, except eyes and frontal area of the face and that the deceased died due to burns. Ex. P-14 is the postmortem report. PW-16 is the-then Inspector of police, who investigated the case; PW-17 is the then Judicial Magistrate of First Class, Boath; who recorded the dying declaration of the deceased and PW-18 is the then Mandal Revenue Officer, Boath who conducted inquest on the dead body of the deceased.
6. Though all the material witnesses-PWs. 1 to 5, 9 and 10 turned hostile, on the basis of the dying declaration (Ex. P-15) recorded by the learned Magistrate (PW-17) the learned trial Judge found the accused guilty for the offence under Section 302, I.P.C., convicted and sentenced him as stated supra, and the same is challenged in this appeal.
7. The main contention of the learned Senior counsel appearing for the accused is that none of the witnesses have supported about the accused harassing the deceased in any manner; in spite of that the learned trial Judge has erroneously convicted the accused, solely on the basis of Ex. P-15 dying declaration recorded by PW-17, the learned Magistrate, that the dying declaration earlier recorded by PW-13, is suppressed by the prosecution and on account of that adverse inference has to be drawn against the prosecution under Section 114, illustration (g) of the Indian Evidence Act, 1872 (for short 'the Act').
8. The contention of the learned Public Prosecutor is that though the material witnesses have turned hostile, as the dying declaration (Ex. P-15) recorded by PW-17 is found to be reliable, the trial Judge has rightly convicted the appellant.
9. Now, the point for consideration is whether there are any grounds to allow the appeal.
10. As all the material witnesses have turned hostile, there is absolutely no material to show that there was any harassment of the deceased for anything. The prosecution case is that after the marriage of the sister of the deceased, wherein the parents of the deceased gave Rs. 10,000.00 towards the marriage expenditure, the accused started harassing the deceased asking for the same amount as dowry.
11. Material portion of the dying declaration Ex. P-l5 reads as follows:
Since one month, my husband abusing and beating me. Today also, he misbehaved and bet and unnecessarily, saying not to go neighbour's house. Today morning, at about 10.00 hours, he poured kerosene on me and burnt with firewood. At that time, there was only my husband and myself and no one in the house. My street members quenched the fire and brought me hospital. I don't want to go my in-law's house. My in-law's stay with us. When this incident happened, my in-law's (My mother and father-in-law) were not there in the house. I don't have any thing to say. My husband used to talk about dowry. That is all., as per which, the accused was abusing and beating the deceased since one month; on the date of incident also he bet her unnecessarily saying not go to neighbour's house: on the date of the incident at about 10.00 a.m., he poured kerosene on her and burnt with fire wood; at that time the accused alone was present at the house and none else; the locality people extinguished the fire and at the time of the incident her-in-laws were not in the house.
12. Thus, in this dying declaration also there is absolutely no reference to any harassment for dowry. On the other hand, the accused has allegedly beat the deceased asking her not to go to neighbour's house. May be, the husband had some objection for the deceased going to neighbour's house. This dying declaration also makes it clear that other than the husband none else were present at the time of the incident. It is specifically stated in the dying declaration that her-in-laws were not at all present in the house; whereas the prosecution case is that A-2 (father-in-law) was present and both of them poured kerosene and set fire to her and when neighbour's tried to extinguish fire, A-2 obstructed them asking to allow her to burn and die. Thus it appears to be a case of attempted false implication of, at least, A-2, as, as already stated, the dying declaration specifically excludes the presence of A-2, at the time of the incident.
13. Now, the question is how far the dying declaration with regard to the appellant (A-1) can be accepted:
14. Illustration (g) under Section 114 of the Indian Evidence Act, 1872, reads as follows:
114. Court may presume existence of certain facts : The Court may presume the existence of any fact which it things likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case:
The Court may presume:
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
Thus, withholding of evidence has to be interpreted adversely to the party, which withholds the same. The evidence of PW-13 shows that he recorded the statement of the deceased. He has specifically stated "I found the victim, Radha with injuries. I examined her and recorded her statement under Section 161, Cr. P.C." Thus the statement re-corded by PW-13 becomes dying declaration, on account of the death of the deceased and is admissible in evidence. The prosecution never filed this statement into the Court. The learned Additional Public Prosecutor could not explain as to why the above statement was not filed by the prosecution.
15. In Shaik Meheboob alias Hetak v. State of Maharashtra the Hon'ble Apex Court held that when the prosecution has withheld a written report about the incident made by the complainant to the police, the irresistible conclusion is that the prosecution has suppressed the document. The Hon'ble Apex Court ultimately held that in such circumstances the accused is entitled for acquittal.
16. The learned Additional Public Prosecutor relied on a decision of our High Court in Harijana Mulinti Bhushanna v. State of A.P. 2004 (2) ALT (Cri) 571 (DB) AP, wherein it was held that due to non-production of a dying declaration of one of the deceased, the entire prosecution case cannot be thrown out. The Division Bench further held that though under Section 114, illustration (g) of the Indian Evidence Act, the Court can draw adverse inference against the party not producing a vital document, that cannot effect the entire prosecution case, if there is satisfactory oral evidence. In that particular case, the witnesses have consistently deposed before the Court about the incident, in detail, and they were found to be truthful.
17. In a recent decision in Sayarabano alias Sultanabegum v. State of Maharashtra 2007 (2) Supreme 49 : 2007 Cri LJ 1458, where there were two dying declarations recorded by a Magistrate, where, in the first dying declaration, the deceased has not attributed overt-acts to the accused-mother-in-law and when a subsequent dying declaration was recorded by the Magistrate, the deceased attributed overt-acts to the accused-mother-in-law, the Hon'ble Supreme Court held that conviction can be based on such a subsequent dying declaration, in spite of the fact that in the earlier dying declaration no overt-acts were attributed to the accused-mother-in-law. The reason given was, at the time of recording of the first declaration, the accused-mother-in-law and her people were present and the deceased, at the time of recording the second dying declaration, has stated that, earlier, at the instance of the accused-mother-in-law, she gave the dying declaration not implicating her (mother-in-law) and the Hon'ble Supreme Court observed that by the time of recording of second dying declaration, as parents of the deceased and her other people came, the deceased must have picked-up courage and gave the true facts about the cause of her death.
18. Thus the above two decisions--Harijana Mulinti Bhushanna (second read above) and Sayarabano alias Sultanabegum 2007 Cri LJ 1458 (third read above) would make it clear that even in cases where a dying declaration of the deceased is not made available by the prosecution and even in cases where the same deceased gave two dying declarations, and in the earliest dying declaration the deceased did not implicate the accused and in a subsequent dying declaration, the deceased implicated the accused, also, in case the prosecution case is found acceptable, on the basis of the other evidence, the accused can be convicted. In view of the above legal position, mere non-production of a document, however important it is, cannot effect the prosecution case in spite of it being hit by illustration (g) of Section 114 of the Act, in case there is other material in support of the prosecution case.
19. In view of this legal position even in case some very important documents could not be produced by the prosecution also, the accused cannot be acquitted on account of illustration (g) of Section 114 of the Act, in case there is other evidence and the prosecution case is found to be otherwise acceptable.
20. Now, it has to be seen as to whether there is any other material, other than Ex. P 15 dying declaration in this case, to accept the prosecution case. No material witness, including the kith-and-kin of the deceased, have supported the prosecution case and the contents of the dying declaration (Ex. P-15) recorded by the learned Magistrate are not in consonance with the prosecution case, as, as per the prosecution case, both the accused (A-1 and A-2) have set fire to the deceased, and, in fact, A-2 prevented the neighbours that came to rescue the de-ceased from extinguishing the fire; but, the deceased, in Ex. P-15, her dying declaration completely ruled out the presence of A-2 saying that he was not at all present in the house. Thus, as there is no other evidence in this case and as the dying declaration (Ex. P-15) recorded by the learned Magistrate (PW-17) is not consistent with the prosecution case, the circumstance of suppression of the statement of the deceased recorded by PW-13 assumes important role, as in case it was against the prosecution case, there was no possibility of holding the accused guilty, such being the case, it is not at all safe to hold the accused guilty of the offence with which he is charged, on the basis of the dying declaration (Ex. P-15) and accordingly the accused is entitled to be acquitted.
21. In the result, the appeal is allowed.
22. The conviction and sentence imposed on the appellant-A-1 in S.C. No. 119 of 2003 by the learned II Additional Sessions Judge (Fast Track Court) Adilabad is set aside. The appellant-A-1 shall be set at liberty forth- with, if he is not required to be detained in any other case. Fine amount, if any, paid by the appellant-A-1 shall be refunded to him after appeal time is over.