THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.1594 of 2006 Date: 19.01.2010 Between : Gajula Sivaiah @ Siva … Appellant And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.1594 of 2006 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the appellant, as well as the learned Public Prosecutor appearing for the respondent-State. 2. Appellant is the sole accused in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 27.10.2006, in Sessions Case No.283 of 2005, passed by the Special Sessions Judge-cum- X Additional District and Sessions Judge, Krishna at Machilipatnam, convicting the accused for the offence punishable under Section 302 of Indian Penal Code (for brevity “IPC”) and sentencing him to suffer life imprisonment and to pay a fine of Rs.100/- and further convicting him for the offence punishable under Section 498-A IPC and sentencing him to suffer Rigorous Imprisonment for two years and also to pay a fine of Rs.100/-. 4. The case of the prosecution, in brief, is that P.Ws.1 and 2 are the parents, P.W.3 is the brother and P.W.7 is maternal uncle of the deceased-Sravanthi. The accused and the deceased were married just one month prior to the date of incident. The facts relating to the other circumstances under which their marriage was performed are not relevant and hence there is no need to refer all those details. On 29.9.2004 at 11-00 p.m., the accused came to his house in a drunken state of mind and beat the deceased and dragged the deceased to her parents house, which was situated adjacent to his house. The proximity between these two houses appears to be very close. Thereafter there was a scuffle took place between the parents of the deceased and the accused and when the deceased had intervened, the accused poured kerosene on her and set her fire. Later the deceased was shifted to Government Hospital, Avaigadda with burn injuries for treatment and medical intimation was sent to the police. Then P.W.26 S.I. of Police, Avanigadda, rushed to the hospital and recorded Ex.P.30 complaint statement of the injured Sravanthi in the presence of P.W.24 duty Doctor, and basing on the same P.W.26 registered a case in Crime No.154 of 2004 against the accused for the offences punishable under Sections 307 and 498-A IPC and issued F.I.R. Thereafter, P.W.25 Additional Judicial First Class Magistrate, Avanigadda, on receipt of medical intimation, rushed to the hospital and recorded Ex.P.29 dying declaration of the deceased. Thereafter the deceased was taken to Government Hospital, Bandar, for better treatment, where she succumbed to burn injuries. Accordingly, the police altered the section of law from 498-A, 307 IPC to Section 304-B and 302 IPC and took up investigation. After completion of investigation and necessary formalities, the police laid the charge sheet. 5. When the charges under Sections 302, 498-A and 324 IPC were framed, read over and explained to the accused, he pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 27 and got marked Exs.P-1 to P-34. On behalf of the accused, none were examined and no documents were marked. 7. The Court below, having considered the entire material including the evidence, both oral and documentary, available on record, found the accused guilty of the offences under Sections 302 and 498-A IPC and accordingly convicted and sentenced him as stated above. Aggrieved by the same, the accused has preferred the present criminal appeal. 8. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant-accused contends that even though the dying declarations are the substantive piece of evidence, the variations in the said dying declarations have also to be taken into account for the purpose of arriving at a right conclusion. According to the learned Senior Counsel there are some material variations in the dying declarations recorded by P.W.25 Magistrate and P.W.26 S.I. of Police under Exs.P.29 and P.30, respectively. It is his further contention that though the deceased stated that the accused is responsible for her death, while narrating the facts, she gave absolutely contradictory statements as regards the nature in which the offence had taken place. Therefore, it is his contention that in view of such serious material contradictions, the contents of the said two dying declarations have to be eschewed from consideration, inasmuch as it is unsafe for the Court to rely on such incoherent dying declarations. Therefore, the learned counsel sought to set aside the conviction and sentence recorded against the accused. 9. In support of his contentions, the learned Senior Counsel relied on the judgment rendered by the apex Court in DANDU LAKSHMI REDDY v. STATE OF A.P.[1]. 10. On the other hand, the learned Public Prosecutor sought to sustain the impugned judgment of the Court below in all fours. 11. Now, the point that arises for consideration in this criminal appeal is whether the Court below was right in appreciating the evidence on record, particularly the dying declarations under Exs.P.29 and P.30, while recording a finding that the accused alone was responsible for the death of the deceased in connection with the harassment for dowry? 12. In this regard, it is to be first noticed that there is no witness who spoke on the material aspects either regarding the death of the deceased or about the cause of the death or about the person who is responsible for the death of the deceased. The persons, who were examined by the prosecution in this regard are P.Ws.1 to 16. But, unfortunately all those witnesses turned hostile and nothing could be elicited from the cross-examination of those witnesses in order to implicate the accused. Therefore, we are of the view that the evidence of P.Ws.1 to 16 is of no consequence and accordingly it is a futile exercise to refer the evidence of the said witnesses. 13. The only substantive pieces of evidence on record are Exs.P.29 and P.30, recorded by P.W.25 learned Magistrate and P.W.26 S.I. of Police, respectively, coupled with the medical evidence of P.W.18 the Doctor, who conducted autopsy over the dead body of the deceased and issued Ex.P.20 Postmortem Certificate. There is no other evidence on record to arrive to arrive at a just conclusion. 14. At the first instance, on hospital intimation, P.W.26 S.I. of Police, Avanigadda, came to the hospital and recorded the statement of the deceased under Ex.P.30, wherein she stated that she was set to fire by the accused in connection with demand of dowry. The relevant portion of Ex.P.30 is as under: “My name is Sravanthi. One month is over of my marriage. Today night at about 11-00 p.m., my husband came to my house while I am staying in house, beat my mother, my father and my brother. When I went to save them, he poured kerosene on my body, lit fire. Beat me for want of dowry. My parental house and my husband house are side by side. He dragged me from my house to my parental house. I think you are Police personnel. I studied Xth class. I cannot sign now.” 15. From the above, what strikingly appears to us is that at 11- 00 p.m., the accused came to the house and while he was beating the father and brother of the deceased, the deceased tried rescue them and upon such interference the accused had resorted to pour kerosene on her body and lit fire. She further stated that such assault was in relation to demand of dowry. 16. It is to be seen that recording of the statement by P.W.26 S.I. of Police under Ex.P.30 had commenced at 1-45 a.m., and was concluded by 2-00 a.m. Almost immediately thereafter Ex.P.29 dying declaration of the deceased was recorded by P.W.25 learned Magistrate. From the record, it appears that the learned Magistrate posed some questions to the deceased since she was suffering from serious burn injuries and satisfied with the answers given by her that she was in a conscious and coherent state of mind and fit for giving statement. 17. Under Ex.P.29, dying declaration recorded by the learned Magistrate, the deceased had stated about the cause of her death, the relevant portion of which is as under: “Today night at about 11.00 p.m. my husband poured kerosene, lit fire. Reason is for not giving dowry. Prior to this, harassed me for want of dowry. Day before he pressed my neck. Oftenly he is beating me. My husband Siva is held responsible for the burn injuries. Lit with match box. Neighbourers protected me while I am crying. Gajula Balakrishna, Gajula Rangarao, Tungala Balakrishna took me to this place. Now I cannot sign.” 18. In this statement also, the main aspect to be noticed is about the cause of the death of the deceased. It is obvious from the statement of the deceased that her husband was quite often beating her for dowry and there was harassment on the part of the accused in connection with demand of dowry. She further categorically stated that at about 11-00 p.m., the accused poured kerosene on her and set fire. 19. What is conspicuous from the above statements under Exs.P.29 and P.30 is – firstly; the accused came to the deceased at 11-00 p.m., secondly; there was harassment meted out to her by the accused with regard to dowry, and thirdly; the accused was quite often beating the deceased in connection with the demand of dowry and quarrelling with her parents and owing to the interference of the deceased, the accused poured kerosene on her and set her fire. 20. Though the earlier incidents that were incidentally mentioned by the deceased in those two statements, what appears to us is all the events have taken place in the same context. Of course, there are certain deviations as pointed out by the learned Senior Counsel. Basing on the facts and circumstances and the method and manner in which the questions were posed by the witnesses i.e., P.W.25 learned Magistrate and P.W.26 S.I. of Police and also the answers that were given by the deceased, that there were certain omissions which appear to be deviations or variations. But, in our considered view, the same cannot be considered as deviations for the reason that, answers were elicited from the deceased by two different officers in different manner. If the questions were the same, the answers, in normal course, would also be in the same manner. But, normally it would not happen. Therefore, the Courts have to necessarily look into the facts and circumstances of each case and arrive at a conclusion as to whether there was really any deviation or variation of material aspects, which is capable of defeating the case of the prosecution. 21. As already pointed out by us, on all the above three aspects the deceased had sent a message to the world in unequivocal terms that the accused alone was responsible for her burn injuries, which resulted in her death. The time and the manner in which she sustained the burn injuries also appear to be almost the same. Minor deviations, if any, cannot and need not be viewed very seriously, inasmuch as the same will not create any doubt in the mind of the Court nor capable of vitiating the case of the prosecution. 22. Another most important aspect that has to be taken into consideration is the evidence of P.W.18 Doctor, who conducted autopsy over the dead body of the deceased and issued Ex.P.20 Postmortem Certificate. As per Ex.P.20 the doctor opined that the deceased appear to have died of shock due to extensive burns of 95%. He also found that the scalp of the deceased has smelling of kerosene. 23. A conjoint reading of the dying declarations under Exs.P.29 and P.30 on one hand, and the opinion of the doctor under Ex.P.20 Postmortem Certificate, on the other hand, would only show that the version of the deceased expressed last was true to the effect that the deceased died due to burn injuries which were inflicted by the accused only in connection with the demand of dowry. The harassment regarding dowry was also explicit from the dying declarations under Exs.P.29 and P.30. In both the declarations the deceased made a specific mention about the demand of dowry by the accused. Therefore, there need not be any other evidence as regards the offence under Section 498-A IPC than the one presented by the deceased herself in her dying declarations. 24. Coming to the judgment of the apex Court relied upon by the learned Senior Counsel, though the facts in the said case are some what similar insofar as two dying declarations and omission of certain facts, upon careful consideration of the said facts, we are of the view that the facts and circumstances in which those statements were recorded and the circumstances that led to the commission of offence in the said case are different from the facts and circumstances of the present case. Of course, the observations or the principles laid down by the apex Court in the said judgment are unexceptionable, but the same cannot be made applicable to the facts and circumstances of the present case. 25. Therefore, the reasons assigned by the Court below, while arriving at the conclusion that the accused is guilty of the offences under Sections 498-A and 302 IPC, in our considered view, are cogent and the evidence on record was well appreciated before arriving at such a conclusion. 26. For the foregoing, the conviction and sentence recorded by the Court below under the impugned judgment does not call for any interference and the criminal appeal is liable to be dismissed as having no merits. 27. In the result, the criminal appeal is dismissed confirming the judgment, dated 27.10.2006, in Sessions Case No.283 of 2005, passed by the Court below. _________________________ JUSTICE D.S.R.VARMA ______________________________________ JUSTICE NOOTY RAMAMOHANA RAO 19.01.2010. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.1594 of 2006 19.01.2010 (Msr) [1] AIR 1999 SC 3255