IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THIS THE 4th DAY OF OCTOBER, 2009 CRIMINAL APPEAL NO.2522 of 2004 Between: Bali Savitri and another ….APPELLANT (S) and State of A.P., rep by its Public Prosecutor, High Court, Hyderabad. …RESPONDENT(S) HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.2522 of 2004 JUDGMENT: This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short hereinafter referred to as ‘Cr.P.C.’), is directed by accused nos.1 and 2 against the judgment dated 30.11.2004 in Sessions Case No.328 of 2002 on the file of the VI Additional District & Sessions Judge, (Fast Track Court), East Godavari, Rajahmundry, whereunder and whereby both the appellants were found guilty of the offences punishable under Sections 304B and 498A of the Indian Penal Code, 1860 (for short hereinafter referred to as ‘I.P.C.’), accordingly convicted and were sentenced to undergo rigorous imprisonment for seven years each for the offence under Section 304B I.P.C.; further sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.500/- each and in default of payment of fine, directed to suffer simple imprisonment for four months each for the offence under Section 498A I.P.C. and both the substantive sentences were directed to run concurrently. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows. The deceased Bali Suneetha is none other than the wife of A-4. The marriage of A-4 with the deceased was performed on 24.02.1999. At the time of marriage, P.W.1 paid Rs.1,00,000/- as dowry and presented 9 sovereigns of gold and 2 sovereigns of gold chain and one sovereign of gold ring to A-4 and also paid Rs.20,000/- towards adapaduchu lanchanam to A-1. At the time of marriage, a dispute arose with regard to payment of amount to the music band party. After marriage, they went to Annavaram temple. After return from Annavaram, the deceased joined with her husband at Rajahmundry. A-1 is mother-in-law of the deceased; A-2 and A-3 are sisters-in-law of the deceased; and A-5 is husband of A-3. While sending the deceased to A-1’s house, the deceased was given sare samans worth Rs.25,000/-. Later, when the deceased became pregnant, she was sent to her parents’ house for medical treatment. At that time, P.W.1 came to know that A-1 to A-3 were harassing her on the pretext that the dowry brought by her is very meager. The deceased gave birth to a female child in a private nursing home at Rajahmundry. Later, when accused were asked to take the deceased and child to their house, they did not do so. Then the deceased prepared a report narrating her plight to the Family Counseling Centre, Kakinada. But, on the intervention of elders, the matter was settled, and in pursuance of that settlement, accused took the deceased to their house on 09.11.2000. On 09.01.2001, at about 2.00 P.M., A-4 informed P.W.1 through telephone that the deceased was in a serious condition. Then immediately P.W.1 rushed to the house of accused along with his wife who was shown as L.W.2 in the charge sheet. Thereafter, the deceased was admitted in Government Hospital for treatment, but, on the same day night, she succumbed to burn injuries. On receipt of Ex.P.13 Hospital Intimation, P.W.19-Head Constable went to the hospital and recorded the statement of deceased as in Ex.P.23. Basing on Ex.P.23 statement of deceased the police registered a case. After registering the first information report, P.W.17 visited the scene of offence, which is a house bearing Door No.42-9-29, in the presence of P.W.8 and others and seized the incriminating material objects. Later, he visited the Government Hospital and examined P.Ws.1 to 5. On receipt of death intimation, the police altered the section of law from 498A I.P.C. to 304B I.P.C. P.W.18- Sub-Divisional police Officer took up further investigation, examined the witnesses and gave requisition to P.W.11-Mandal Revenue Officer to hold inquest. Accordingly, P.W.11 held inquest in the presence of P.W.10 and others. After inquest, the dead body of deceased was subjected to post mortem examination by P.W.12. After completion of investigation, the police filed charge sheet. The charges framed against the accused are as follows. “FIRSTLY, that all of you on 10th day of January 2001 at 0.45 hours at Government Hq. Hospital, Rajahmundry caused the death of Bali Suneetha W/o. A-4 of you within seven years of her marriage before her death by subjecting her to cruelty and harassment in connection with the demand of Dowry and you thereby committed an offence punishable under sec.304.B IPC and within my cognizance. SECONDLY, that A-4 of you being the husband of Bali Suneetha and A-1 to A-3 and A-5 of you being the relatives of A-4 of you, subjected Bali Suneetha to cruelty and harassment in connection with the demand of Dowry and you thereby committed an offence punishable under sec.498.A IPC and within my cognizance.” 3. When the charges are read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 19 and got marked Exs.P.1 to P.23 besides case properties M.Os.1 to 7. 5. After the prosecution evidence was closed, the accused were examined under Section 313 of Cr.P.C. with regard to the incriminating material appearing against them in the evidence of prosecution witnesses for which they denied the same. On behalf of defence, no oral evidence has been adduced but Exs.D.1 to D.3 were marked. The trial Court, after appreciation of the evidence on record, found the appellants herein (A1 and 2 in trial Court) guilty of the offences punishable under Sections 498A and 304B I.P.C. and, accordingly, convicted and sentenced them as stated above. However, A-3 to A-5 are found not guilty of the said offences and, accordingly, they were acquitted. Challenging the convictions and sentences passed against the appellants herein, the present appeal is filed. 6. Now the point for determination is whether the prosecution proved the guilt of the appellants beyond all reasonable doubt for the offences punishable under Sections 498A and 304B I.P.C. 7. Learned counsel appearing for the appellants contends that the evidence of P.Ws.1 to 3, 6 and 7 is nothing but improvements, which go to root of prosecution case that when they were examined by P.W.11 during the course of inquest, these witnesses did not stale that the deceased was subjected to cruelty or harassment soon before her death for, or in connection with, demand of dowry and, therefore, the improvements made by these witnesses for the first time in Court cannot be given much importance; that the dying declarations said to have been given by the deceased to P.Ws.14, 17 and 19 cannot be accepted as the deceased was not in a fit state of mind to give statement in view of the fact that she was given sedatives to get relieved of the pain and suffering, that the dying declarations are mutually contradictory to each other and that the trial Court placed reliance on Ex.P12(A)-dying declaration recorded by P.W.14, which would not disclose that there was any demand for, or in connection with, demand of dowry soon before her death, and that the trial Court which gave benefit of doubt to A-3 to A-5 ought to have extended the same benefit to the appellants herein also because the evidence adduced by the prosecution against all the accused is one and the same, and, therefore, sought to set aside the conviction and sentence recorded against the appellants. 8. On the other hand, the learned counsel appearing for the Public Prosecutor contended that the evidence of P.Ws.1 to 5, 6 and 7 is very clear that the deceased was subjected to cruelty and harassment prior to her death and that they were demanding additional dowry of Rs.1,00,000/-; that there was no reason for the prosecution witnesses to speak falsehood against the appellants. It is further contended that in view of the fact that the names of appellants have been clearly mentioned in Ex.P.12 (A) the appellants were rightly convicted by the trial Court and that the trial Court has, after elaborate consideration of the evidence on record, rightly convicted and sentenced them and there are no grounds to interfere with the same. 9. To establish the guilt under Section 304B I.P.C., the ingredients required to be proved are- 1) that the death of a married woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances; 2) that death must have occurred within 7 years of her marriage; 3) that soon before her death she was subjected to cruelty or harassment by her husband or by any relatives of her husband; and 4) that the said harassment must be for, or in connection with, any demand of dowry. 10. To establish the offence under Section 498A I.P.C., the ingredient required to be proved is that a married woman was subjected to cruelty or harassment by her husband or by the relatives of her husband; and for the purpose of this section “cruelty” means – (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related o her to meet such demand. 11. When once the ingredients under Section 304B I.P.C. and 498A I.P.C. are proved, the presumption under Section 113B of the Indian Evidence Act, 1872, can be drawn. Section 113B of the Indian Evidence Act says that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 12. It is not in dispute that the deceased committed suicide on 09.01.2001 by setting fire to her. The Mandal Revenue Officer who was examined as P.W.11 conducted inquest on the dead body of the deceased in the presence of P.W.10 under Ex.P.7 inquest report. The inquest mediators opined that the deceased died as a result of burn injuries. P.W.12 is the Doctor, who conducted autopsy on the dead body of the deceased on 10.01.2001 at 4.00 P.M., found the following injuries. “1. Burn injuries present on the face frontal region of scalp, neck, front and back of chest, front and back of abdomen, both upper limbs, both lower limbs up to the feet, burns are superficial in nature, singing of frontal scalp hair present, skin is peeled off here and there leaving red raw areas, cut section shows congestion of subcutaneous tissues. Spared areas:- Pubic area and perineum, lateral aspect of right leg and right foot. 2. Venesection would present on the left foot near the medial malleolus.” He gave Ex.P.12 post mortem report. The Doctor opined that the cause of death to the best of his knowledge was shock due to extensive superficial burns amounting to approximately 90 to 95 percentage of total body surface area. 13. It is not in dispute that P.W.17 inspected the scene of offence and observed the same in the presence of P.W.8 under Ex.P.4 observation report. P.W.8 deposed that incriminating articles i.e. M.Os.1 and 7 have been seized from the scene of offence. The scene of offence is also not in dispute. 14. It is not in dispute that the marriage of deceased with A-4 was performed on 24.02.1999 in accordance with the Hindu rites and caste customs. It is also not in dispute that in the night of 09.01.2001 the deceased died as a result of burn injuries. Therefore, it is clear that her death occurred otherwise than under normal circumstances and within 7 years of her marriage. Therefore, the first two ingredients of the offence under Section 304B I.P.C. have been established beyond all reasonable doubt. 15. P.W.1 is father; P.W.2 is a friend; P.W.3 is a neighbour; P.W.6 is a brother; and P.W.7 is a cousin, of the deceased. The prosecution mainly relies of P.Ws.1 to 3, 6 and 7; and the dying declarations recorded by P.W.14 as in Ex.P.12A; P.W.17 as in Ex.P.19; and P.W.19 as in Ex.P.23. Similarly, the prosecution also relied upon the oral dying declarations said to have made to P.Ws.1 to 3, 6 and 7. Where the death of a person is in question, the statement made by such person as to the cause of death or any of the circumstances resulting in the death, is admissible under Section 32(1) of the Indian Evidence Act, 1872. The law is well settled that once a dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by the relatives and if it is shown to have been made voluntarily, conviction can be maintained thereon even without any corroboration. On this aspect, it is pertinent to refer to a decision reported in KHUSHAL RAO vs. STATE OF BOMBAY[1] wherein at para-17 it was held thus: “Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.” 16. The prosecution relied upon a decision reported in LAXMI VS. OM PRAKASH[2] wherein at para-29 it was held that “A dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinize all the relevant attendant circumstances {see Tapinder Singh vs. State of Punjab - (1970) 2 SCC 113 : 1970 SCC (Cri) 328 : (1971) 1 SCJ 751}. One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it. In Bagwan Das vs. State of Rajasthan (AIR 1957 SC 589 : 1957 CriLJ 889) the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh vs. State of M.P. (1981 Supp SCC 25) the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made a coherent statement. In Darshan Singh vs. State of Punjab {(1983) 2 SCC 411} this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh vs. State of Punjab (1981 Supp SCC 18) the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present.” 17. The prosecution relied upon a letter said to have been prepared by deceased, which was marked as Ex.P.3 through P.W.6. Though deceased intended to give it to the Family Counseling Centre, the same was not submitted to the Family Counseling Centre on the advice of elders. Ex.P.3 does not contain any date or signature of the deceased. Even assuming for a moment that Ex.P.3 was scribed by the deceased, it does not disclose that she was subjected to cruelty or harassment for, or in connection with, any demand of dowry. The relevant portion of Ex.P3 reads as follows: “……… They are saying to keep your daughter with you. Since after marriage they are mentally harassing my parents, my brothers and also me. They asked to send us after the baby attaining 3 months. All of them in my in- laws house abused me several times even by then that I did not bring “Saree Samans”. She used to tell with the relatives who came to the house that my daughter-in-law did not bring anything with her. When they asked to send me in the 3rd month, as they are saying like that in respect of “Saree Samans” our people said they cannot give “Sari” now as such to send me after spending two nights sleep there at the end of third month and we will give “Sari” in the 5th or 9th month, then they said Don’t you have money even to give Cots like that they abused us. ………” As mentioned above, the statement given by the deceased certainly would not attract the ingredients required to prove the offence under Section 498A or 304B I.P.C. For the first time, Ex.P.3 was brought into existence during the examination of P.W.6. P.W.6 did not give Ex.P.3 to the police during the course of investigation. Therefore, no reliance can be placed on Ex.P.3. 18. Coming to Ex.P19-dying declaration made to P.W.17, the relevant portion thereof reads as follows: “……… Today i.e., on 9-1-2001 Tuesday my mothe-in- law Savitri and younger sister-in-law Sridevi abused me and I am unable to bear the situation and got frustrated in life and I does not know what to do, then at that time at about 2.00 P.M. I poured kerosene and set fire to myself in the bathroom. At that time my mother-in-law Savitri and Sister-in-law Sridevi stood at a distance looking at me. But my husband came to me and poured water on me. ………” 19. A perusal of the above dying declaration would go to show that the appellants abused the deceased. Mere ‘abuse’ or ‘beating’ would not come within the meaning of ‘cruelty’ or ‘harassment’ under Section 498A I.P.C. There must be unlawful demand or physical cruelty which is likely to drive a woman to commit suicide. Nowhere it is stated in Ex.P.19 that the deceased was subjected to cruelty or harassment for, or in connection with, any demand of dowry. ‘Dowry’ means an agreement between the parties for payment in connection with the marriage agreed to be payable before or after the marriage. The evidence of P.Ws.1 to 3, 6 and 7 does not disclose that there was an agreement in connection with marriage to pay some amount towards “Saree Samans” or bringing “Saree Samans” at the time of marriage or after the marriage. 20. Coming to the statement of deceased recorded by P.W.19 the Head Constable which was marked as Ex.P.23, the relevant portion thereof reads as follows: “I am a resident of Kothapeta, Rajahmundry. My husband is doing fancy business. At about 1½ years ago my marriage was performed with one Ram Prasad. At the time of marriage my father gave one lakh rupees as dowry and Rs.20,000/- towards “Adapaduchu Katnam” and 10 sovereigns of gold. Today i.e. on 09-01- 2001 at about 2.00 P.M. unable to bear the harassment of my mother-in-law viz. Savitri and sisters-in-law Devi and Mani I poured Kerosene and set fire to myself. Unable to bear the burning pain I came out of the kitchen and came to the bathroom and fell down. As a result of which I sustained burning injuries from face upto the feet. One hour later my father viz., Paparao and brother viz., Sridhar came there and took me to the Government Hospital for treatment and joined me. Because I sustained burning injuries on my hands I put my impression with my left leg thumb finger.” The above statement would only disclose that the accused 1 to 3 (appellants herein and A-3) were harassing the deceased. Mere harassment is not an offence unless such harassment is made for, or in connection with, any demand of dowry. Therefore, even if the contents in Ex.P.23 are taken to be true and correct, it cannot be said that the deceased was subjected to cruelty or harassment for, or in connection with, any demand of dowry. 21. Coming to Ex.P.12A dying declaration said to have been recorded by P.W.14, the relevant portion thereof reads as follows: “My mother-in-law and my sister-in-law viz. Sridevi are abusing me as I did not brought anything from my parents house. My husband is a good person and he did not said anything. Today afternoon at about 2.00 P.M. at my mother-in-law’s house I poured kerosene and set fire to me with a match stick. While I am burning my mother- in-law, husband and sister-in-law came there. My mother-in-law is looking at me by standing far away from that place. My husband poured water. My sister-in-law also did not come near to me. My sister-in-law viz., Mani is residing in Morampudi. She is not present when this happened. I studied up to Inter. I am suffering with pain now and I am cannot sign.” 22. A perusal of the above statement would go to show that the appellants abused her as she did not bring anything from her parents’ house. Except that there is no other allegation that the deceased was subjected to cruelty or harassment for, or in connection with, any demand of dowry. 23. The learned counsel for appellants relied upon a decision reported in APPASAHEB vs. STATE OF MAHARASHTRA[3] wherein at para-9 it was held as follows. “In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or