THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1679 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/sole accused, who faced trial for the offences under Sections 498-A and 302 I.P.C in S.C.No.148 of 2006 on the file of the Sessions Judge, Prakasam Division, Ongole, was found guilty of the said offences, convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/- for the offence under Section 302 I.P.C, and rigorous imprisonment for one year and to pay a fine of Rs.100/-, in default to undergo simple imprisonment for one month, for the offence under Section 498-A I.P.C, by judgment dated 23.07.2007. Questioning the said conviction and sentence, the appellant preferred this appeal. 2. The gravamen of the charges against the accused is that prior to 04.12.2005 at Chirala he being the husband of Dodda Suvartha (hereinafter referred to as ‘the deceased’) subjected her to cruelty to bring money and thereby committed an offence punishable under Section 498-A I.P.C and that on 04.12.2005 at 3.00 p.m at Chirala he committed murder of the deceased intentionally by pouring kerosene and setting fire to her and thereby committed an offence punishable under Section 302 I.P.C. 3. The brief facts that are necessary for disposal of the present case may be delineated as follows: The accused and the deceased fell in love about 20 years ago and wanted to marry. The parents of the accused were reluctant for their marriage and performed his marriage with one Vajramma. However, the accused continued his intimacy with the deceased and married her about 12 years ago and out of their wedlock, they begot one female child by name Dodda Emarthamma @ Sravanthi (PW4). The accused was working as mason and looking after both the families, but, thereafter, he addicted to drinking and could not meet the expenditure, and thus, he was compelling the deceased to fetch money for his vices by attending coolie work. The accused was also beating the deceased abusing her in filthy language insisting for money. As the deceased could not earn money by attending coolie work due to her ill health, the accused developed hatred towards her and wanted to get rid of her. Smt Chinna Vandanam (L.W.1) and Chinna Adam (P.W.1) were consoling the deceased, whereas Patibandla Pushpamma (P.W.2), Janga Samson (P.W.3), Dodda Emarthamma @ Sravanthi (P.W.4), Moparthi Sujatha (P.W.5), Yalnati Sekhar (L.W.7 since died), Nakka Mariyadas @ Nakkadas (P.W.6), Nama Yesudas (P.W.7), and Nama Udaya Kumar (P.W.8) and K.T.Ananda Kumar (P.W.9) are also witnesses to the cruelty meted out by the deceased in the hands of the accused, out of them one Yalnati Sekhar and P.W.7 promised to solve her grievances with the accused by placing the matter before their caste elders. While so, on 04.12.2005 at about 12 Noon the accused, while consuming liquor along with Nakka Mariyadas (P.W.6) at the house of the deceased, picked up a quarrel with the deceased abusing her in filthy language and when P.W.6 chastised the accused for abusing the deceased in the presence of his daughter baby Sravanthi (P.W.4), the accused grew wild and sent away P.W.6. Thereafter, the accused started threatening the deceased to kill her with knife. Due to fear, the deceased called her neighbours, but they refused to come stating that the accused may abuse them too if they interfere. On the same day i.e., on 04.12.2005 at about 3 p.m., the accused having sent out P.W.4 on the pretext of calling Moparthi Sujatha (P.W.5), the sister of the deceased since he predetermined to kill the deceased, poured kerosene on her and set her ablaze. Owing to flames all over the body, the deceased rushed out of the house by raising cries. The accused also raised cries as if the deceased set herself ablaze by pouring kerosene. At that time Janga Samson (P.W.3) and others put out the flames and sent the deceased/injured to the Government Hospital accompanied by the accused. On receipt of Ex.P.11 hospital intimation on the evening of 04.12.2005 from the Medical Officer of the Government Hospital, Chirala, E.Samuel, Head Constable (LW 20) (since died) went to the hospital, recorded the statement of the deceased on the same day at about 7.00 p.m under Ex.P.12 while the accused was present along with the deceased. The Head Constable sent Ex.P12 to II Town Police Station, Chirala on the point of jurisdiction. Sk.Mahaboob Vali (P.W.11), Head Constable of II Town Police Station, Chirala entered Ex.P.12 in the General Diary on 05.12.2005 at 00.45 hours (after midnight of 04.12.2005). Based on Ex.P.12 statement of the deceased, S.Malla Reddy (P.W.12), the Assistant Sub Inspector of Police registered a case in Crime No.133 of 2005 for the offence under Section 498-A I.P.C., issued Ex.P.15-F.I.R and took up investigation. During the course of investigation, P.W.12 visited the scene of offence on the morning of 05.12.2005, prepared Ex.P.16 rough sketch of the scene, seized M.O.1-empty plastic kerosene container with cap under the cover of Ex.P.7-observation report in the presence of K.T.Ananda Kumar (P.W.9) and Nama Subba Rao (L.W.12), who attested the same, examined M.Sujatha (P.W.5), Yalnati Sekhar (L.W.7 since died) and others, and recorded their statements under Section 161 Cr.P.C. P.W.10-Dr.M.Ch.Subba Rao sent Ex.P13 hospital intimation to Sri T.Sreenivasa Rao-Additional Munsif Magistrate, Chirala (P.W.14) for recording the dying declaration of the deceased. Thereupon, P.W.14 recorded the dying declaration of the deceased under Ex.P.14, in which P.W.10 made Ex.P.14(A) & P.14(B) endorsements. Later, on 08.12.2005 at about 1.00 p.m., the deceased breathed her last and on receipt of Ex.P.17-death intimation, P.W.12 altered the Section of Law from 498-A I.P.C to 302 and 498-A I.P.C and submitted Ex.P.18 altered express F.I.R dated 08.12.2005 to the Court and copies to the concerned. Thereafter, Y.T.Naidu (P.W.15), the Inspector of Police took up further investigation. During his investigation, P.W.15 conducted inquest over the dead body of the deceased in the presence of P.W.9 and L.W.13 N.Bhushanam under the cover of Ex.P.9 inquest report dated 09.12.2005 and sent a requisition to the Medical Officer to conduct autopsy over the dead body of the deceased. He also examined the witnesses and recorded their statements. On 19.12.2005, he arrested the accused in the presence of two mediators viz., Golla Yesobu and Gumpu Nohabu (LW14 and LW15 not examined since given up) and produced the accused before the Court for judicial remand. Based on Ex.P.19-requisition, Smt B.Mary Sara Danamma (P.W.13)-Magistrate recorded the statements of P.W.4, P.W.6, and Yalnati Sekhar (L.W.7 since died) under Section 164 Cr.P.C., and the same were marked as Exs.P.4 , P.5 and P.20. Dr.M.Ch.Subba Rao (P.W.10) held autopsy over the dead body of the deceased and issued Ex.P.10 post mortem report dated 09.12.2005 opining that the deceased would appear to have died of hypovolamic shock due to 60 to 70% of superficial burns. P.W.15, after receipt of Ex.P.10 post mortem report and after closure of the investigation establishing the complicity of the accused in the crime, filed the charge sheet. 4. On committal, the learned Sessions Judge framed two charges against the accused for the offences under Sections 302 and 498-A I.P.C. When the said charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the accusation made against the accused, the prosecution examined as many as 15 witnesses and got marked 21 documents, besides M.O.1-plastic kerosene tin. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., with regard to the incriminating material made against him by the prosecution, which he denied. However, he did not choose to adduce any evidence either oral or documentary on his behalf. 6. The learned Sessions Judge, on appreciation of the oral and documentary evidence, found the accused guilty of the offences under Section 302 and 498-A I.P.C, and accordingly, convicted and sentenced him as aforementioned. 7 . Learned counsel for the appellant contended that in the statement recorded by the Head Constable under Ex.P.12 on the basis of which, the crime was registered, the deceased stated that she herself committed suicide, but in the dying declaration recorded by the Magistrate under Ex.P.14, the deceased improved her version stating that her husband poured kerosene on her, but she has not stated that he lit fire to her and in the process she received injuries and she further stated that her husband brought her to the hospital. Therefore, mere pouring of kerosene on the deceased and in the absence of complicity of the accused in setting fire to her, the accused cannot be convicted for the above said offences on said the presumption. He further contended that except the dying declaration under Ex.P.14, there is no other evidence to connect the accused with the commission of the offence and therefore, the impugned order is liable to be set aside and the accused is entitled to acquittal. 8. On the other hand, the learned Additional Public Prosecutor submitted that the prosecution proved the case beyond all reasonable doubts and therefore, the impugned judgment does not suffer from any illegality. 9. P.Ws.1 to 3 and 7 to 9 have not supported the case of the prosecution and turned hostile. Then there remains the evidence of P.Ws.4 to 6 and the official witnesses-P.Ws.10 to 15. 10. P.W.4, who is the daughter of the accused and the deceased and who was studying 6th class at the time of giving evidence, stated that the accused got a second wife by name Vajramma; that the family of the second wife of the accused is also situated at their colony- Jayanthipeta; that the accused was staying with her mother-deceased and also his second wife for three days here and three days there; that the accused addicted to alcohol, come home under intoxication condition and frequently beat the deceased raising altercations and that on 04.12.2005 at about 10.00 a.m the accused collected Rs.50/- from the deceased having already under intoxication condition, again consumed liquor, came to the house at about 12 noon along with P.W.6 and one brandy bottle and both of them consumed liquor in the house. She further stated that when the deceased prepared lunch, the accused abused the deceased for not preparing many items in the lunch, and when P.W.6 chastised him, the accused scolded him and sent him away; that the accused started threatening the deceased to kill her with knife; that due to fear, the deceased went to the houses of Lasar and Yesudas (P.W.7) and requested them to question the accused, but they refused to come stating that the accused may abuse them too if they interfere; that at about 3.00 p.m., the accused sent her out on the pretext of calling her aunt-Moparthi Sujatha (P.W.5); that she went to the house of P.W.5 and informed her that the accused was calling her; that while she was at the house of P.W.5, N.Udaya Kiran (P.W.8) rushed there and informed them that the deceased sustained burn injuries and was shifted to hospital; that herself and P.W.5 rushed to their house and from there to hospital; that at the hospital, the deceased advised her to be cautious for her future; that she did not enquire with the deceased with regard to cause of injuries; that she was believing that that the accused lit fire to the deceased. 11. P.W.5, who is the sister of the deceased, deposed that on the date of occurrence, at about 3.00 to 3.30 p.m., P.W.4 came to her house and informed that the accused was threatening the deceased holding a knife; that the accused asked P.W.4 to bring her to their house; that when she prepared to start with P.W.4, P.W.8 came there and informed that the deceased sustained burn injuries and that by the time herself and P.W.4 reached the house of the deceased and the accused, the deceased was shifted to Government Hospital for treatment. She further deposed that when she enquired the deceased at the hospital, the deceased informed her that the accused set fire to her, but later he pleaded her not to disclose his role in order to take care of P.W.4 and thereby informed the police as if she set fire herself. 12. P.W.6, who is not an eyewitness, deposed that on the date of occurrence at about 11.30 a.m., when he met the accused and asked him the amount due for him for electrical repairs, the accused took him to the house of the deceased and that at the house, the accused had consumed alcohol. He has not stated about his taking meals at the house of the deceased. But he stated that the accused scolded the deceased and when he questioned the unjustifiable conduct of the accused in scolding the deceased before him, the accused warned him not to interfere in his family affairs and to go out and then he left their house. 13. P.W.10, the doctor, who conducted autopsy over the dead body of the deceased, issued Ex.P.10 post mortem report opining that the cause of death of the deceased was due to hypovolemic shock due to 60 to 70% of superficial burns. 14. P.W.11, the Head Constable, deposed that on the intervening night of 04/05.12.2005 at about 0.45 hours, on receipt of hospital intimation under Ex.P.11 and the statement of the deceased under Ex.P.12, he entered the same in the General Dairy and handed over the same to P.W.12 for registration of the same and for issuing F.I.R. 15. P.W.12, the Assistant Sub Inspector of Police, deposed that on the basis of Exs.P.11 and P.12, he registered a case in Crime No.133 of 2005 for the offence under Section 498-A I.P.C, issued Ex.P.15- F.I.R and took up investigation. He further deposed that he visited the hospital and found that the deceased, who was with burn injuries, was not in a position to give any statement. Thereafter, he proceeded to the scene of offence, visited the house of the accused and the deceased, conducted scene observation proceedings under Ex.P.7 in the presence of P.Ws.9 and 10, seized M.O.1 empty kerosene tin, prepared rough sketch of the scene of offence under Ex.P.16, examined P.W.4, L.W.7 and others and recorded their statements. On receipt of death intimation, he altered the Section of Law and issued altered F.I.R under Ex.P.18. 16. P.W.13, who worked as A.M.M, Parchur, deposed that on receipt of requisition under Ex.P.19, she recorded the statements of P.W.4, Y.Sekhar (died) and P.W.6 under Exs.P.4, P.5 and P.20. In the cross examination, she admitted that in Ex.P.4, P.W.4 stated that she got information from one Babu a neighbour that her mother was set fire by her father. 17. P.W.14, the Magistrate, who recorded the dying declaration of the deceased under Ex.P.14, deposed that on 04.12.2005 at about 4.30 p.m., on receiving hospital intimation under Ex.P.21, he rushed to the Government Area Hospital, Chirala, verified the condition of the patient with the help of the doctor-P.W.10, who certified that the deceased was in fit state of mind, and after putting preliminary questions regarding her state of mind and satisfied with the same, he recorded the statement of the deceased and obtained the left thumb impression of the deceased. 18. P.W.15, the Inspector of Police took up further investigation in the matter and after completion of investigation laid charge sheet. In the cross-examination he admitted that P.W.5 did not state before him that she questioned the accused on the complaint made by the deceased with regard to the ill treatment or about abusing, or she took P.W.4 along with her to the hospital to see the deceased or she asked the deceased about the occurrence of her disclosing about the occurrence. 19. In the earliest statement recorded by L.W.10 under Ex.P.12, on the basis of which, the crime was registered, the deceased stated that her husband used to quarrel and abuse her and also beat her subjecting to cruelty; that unable to bear the harassment, she decided to commit suicide by pouring kerosene; that in the meanwhile, her husband got admitted her in the Government Hospital, Chirala, for treatment, whereas, in Ex.P.14-dying declaration, the deceased stated that her husband poured kerosene on her for her death and that her husband brought her to the hospital, but nowhere it is stated that after pouring the kerosene her husband set fire to her, which resulted in receiving burn injuries by her. Hence, it is clear that the deceased improved her version in Ex.P.14 by stating that the accused poured kerosene on her. 21. The Supreme Court, i n Nallapati Sivaiah v. Sub-Divisional Officer, Guntur. A.P (S.C)[1] summed up the principles governing dying declarations and held as under: “It is equally well-settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court in more than one decision cautioned that the Courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the Courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the Courts have to look for the medical opinion.” 22. Admittedly, in the instant case, they are two dying declarations one recorded by the Head Constable and another by the Magistrate and they are inconsistent with each other with regard to complicity of the accused and the cause of death, and therefore, the same requires corroboration. 23. In the dying declaration recorded by the Magistrate, the deceased has not stated that the accused lit fire to her and in the process, she received injuries, whereas, in the earliest statement, the deceased stated that unable to bear the harassment by the accused, she committed suicide by pouring kerosene. Further, P.W.5 in her evidence deposed that when she enquired with the deceased in the hospital, the deceased stated that the accused poured kerosene on her and lit fire to her, but when she was examined by the Investigating Officer, she omitted to state the same before him. In view of the same, the above piece of evidence of P.W.5, which she has not stated in the earliest point of time, is also an improvement. 24. In view of the above, and since the deceased has not stated in the earliest statement that the accused lit fire to her and she has improved the same in the dying declaration, we are of the view that it is unsafe to convict the accused solely relying upon the said dying declaration, and therefore, the accused is entitled to benefit of doubt for the offence punishable under Section 302 I.P.C. 25. Coming to Ex.P.12 statement, even if we believe the same, wherein the deceased stated that unable to bear the harassment by the accused, she committed suicide, the same will amount to cruelty. Therefore, the conviction and sentence recorded against the accused in the impugned judgment for the offence under Section 498-A I.P.C cannot be interfered with. 26. Accordingly, the conviction and sentence recorded against the appellant/accused for the offence punishable under Section 498-A I.P.C in Sessions Case No.148 of 2006, dated 23.07.2007, by the Sessions Judge, Prakasam, are confirmed. However, the conviction recorded against the appellant/accused for the offence punishable under Section 302 I.P.C and sentence of imprisonment for life and fine of Rs.100/- are set aside and he is acquitted of the said charge. He shall be set at liberty forthwith, if he is not required in any other crime. The fine amount, if any, paid by the appellant for the offence under Section 302 I.P.C., shall be refunded. 27. In the result, the Criminal Appeal is allowed in part to the extent indicated above. _________________ A.GOPAL REDDY, J ________________ RAJA ELANGO, J Dt.21.07.2011 va [1] 2008(1) ALD (Crl.) 316 (SC)