THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE N.RAVISHANKAR CRIMINAL APPEAL No.218 of 2008 JUDGMENT: (Per THE HON’BLE SRI JUSTICE A.GOPAL REDDY) Appellant is the first accused in Sessions Case No.384 of 2004 on the file of the Court of I Additional Metropolitan Sessions Judge, Hyderabad (trial court). He was tried on two charges viz., offences punishable under Sections 498-A and 302 IPC on the allegation that he committed murder of his spouse by name Shareefa Bee (hereinafterwards referred to as ‘the deceased’) by setting her ablaze after subjecting her to cruelty both mentally and physically since after the marriage. 2. The trial court by its judgment dated 04.08.2007 considered the evidence in detail with regard to the charges, upheld the prosecution case and convicted the appellant of the said charges. Regarding sentences, it awarded life imprisonment for the offence punishable under Section 302 IPC and rigorous imprisonment for two years for the offence punishable under Section 498-A IPC besides imposing fines on both the counts with default clause prison sentences. This appeal is filed questioning that judgment. 3. The facts, in brief, of the prosecution case are as follows. P.W.1 is mother and P.W.2 is paternal uncle of the deceased. On receipt of intimation from Osmania General Hospital (OGH) on the intervening night of 22/23.05.2003 at 01.00 hrs stating that a lady was admitted in the hospital with burn injuries, P.W.12, Balasaheb @ Balaji, who was on night duty as head constable in Amberpet police station, went to OGH, recorded Ex.P.12 statement of the deceased, obtained her right thumb impression thereon and after returning to police station he handed over the same to the Inspector G.S.Karunakar (P.W.16). Then P.W.16 registered the same as FIR in Cr.No.186 of 2003 for the offence punishable under Section 498-A IPC and entrusted investigation to the Sub- Inspector of Police T.Ram Prasad (P.W.15). 4. P.W.15 took up investigation, visited OGH and recorded the statement of the deceased. Thereafter, P.W.15 went to the scene of offence which is a residential house at Patelnagar, Amberpet, drafted scene of offence panchanama in the presence of mediators P.Ws.7 and 8, seized one kerosene tin, two match boxes and burnt cloth pieces (marked as M.Os.1 to 3), got photographed the scene of offence through P.W.10 and also examined and recorded the statements of P.Ws.3, 4, 5 and 6 who are said to be neighbours to the scene of offence. P.W.15 also sent Ex.P.10 requisition to the concerned Magistrate for recording dying declaration of the deceased. Accordingly, P.W.11 who was the then XI Metropolitan Magistrate, Secunderabad, recorded Ex.P.11 dying declaration of the deceased. 5. As the deceased succumbed to injuries on 29.05.2003 while undergoing treatment in the hospital, P.W.15 gave requisition to P.W.13, the Mandal Revenue Officer, Hyderabad (MRO), for conducting inquest. After P.W.13 conducting inquest panchanama under Ex.P.8 in the presence of P.Ws.7 and 8, P.W.15 sent the dead body for postmortem examination and examined the father, mother (P.W.1), paternal uncle (P.W.2) of the deceased and basing on their statements he added the offence punishable under Section 306 IPC and, after receiving a copy of the dying declaration from P.W.11, handed over the further investigation to P.W.16. Thereafter, P.W.16 took up further investigation, arrested the appellant, interrogated him in the presence of two mediators and sent him to judicial custody. On receipt of the relevant reports and on completion of investigation, P.W.16 laid charge sheet against the appellant and his mother for the aforesaid offences. It may be noted that the charge sheet was not taken on file against one Smt Kulsum Bee who is mother of the appellant though she was shown as the second accused in the case. 6. On committal of the case, the trial court framed the charges punishable under Sections 498-A and 302 IPC against the appellant, read over and explained to him in the language known to him. The appellant pleaded not guilty. To prove its case, the prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.16 and M.Os.1 to 3. On conclusion of the trial, when the appellant was examined under Section 313 Cr.P.C., he (appellant) denied the incriminating material that appears against him and opted not to adduce any evidence on his behalf. The learned Sessions Judge on appreciation of the oral and documentary evidence on record found the appellant guilty of the charges framed against him, convicted and sentenced him as aforesaid. 7. The appellant was provided with legal aid for preferring this appeal. Mrs. Shanthi Neelam the learned counsel appearing for the appellant has taken us through the entire evidence and contended that all the material witnesses have turned hostile and that, in all, two dying declarations were recorded i.e. the one recorded by P.W.12 Head Constable at about 1.30 AM on 22/23.05.2003 and the other recorded by the Magistrate P.W.11 on 23.05.2003 and that both of them are inconsistent to one another so also to the evidence on record and therefore it is highly unsafe to convict the accused solely on the basis of those dying declarations. She further contended that the learned Sessions Judge simply accepted the evidence of, and the dying declaration recorded by, P.W.11 in convicting the appellant and failed to consider the chance of the deceased being tutored by her relatives in the time available to them between recording the two statements i.e. Ex.P.12 and Ex.P.11 to implicate the appellant with commission of the offences. She also contended that in the absence of any evidence to show that sooner before the death, or at any time after the marriage, of the deceased, she was subjected to cruelty, conviction of the appellant for the charge under Section 498-A IPC is improper. She also contended that since the evidence on record is not sufficient to prove the prosecution case beyond reasonable doubt, this is a fit case for interference by this court and the judgment of the trial court is liable to be set aside. 8. Per contra, the learned Additional Public Prosecutor would contend that the dying declaration recorded by the Magistrate P.W.11 should be preferred than any other statement as he elicited answers from the deceased to the questions posed by him and the consciousness of the deceased at the time of making such declaration was certified by the duty doctor and therefore the judgment of the trial court needs no interference by this court. 9. In the light of the above rival contentions the only point that arises for consideration is whether the prosecution is able to bring home the guilt of the appellant for the offences punishable under Sections 302 and 498-A IPC beyond all reasonable doubt and, if so, whether the conviction and sentences recorded by the trial court are liable to be set aside. 10. It may be noted that to establish the charge of murder punishable under Section 302 IPC the prosecution has to prove the homicidal death of the deceased by the appellant and similarly to establish the charge under Section 498-A IPC the prosecution has to prove that either the appellant or his relatives have subjected her to cruelty. 11. The prosecution has no doubt proved the death of the deceased by adducing the evidence of P.W.13 MRO who conducted inquest over the dead body of the deceased, P.W.8 who is inquest panchayatdar, and by marking Ex.P.16 postmortem examination report. To prove the homicidal death of the deceased, the prosecution examined P.Ws.1 and 2 who are mother and paternal uncle of the deceased respectively who are not eye witnesses to the incident and added to the same they have not supported the prosecution case and both of them were declared hostile. Similarly, P.Ws.3, 4, 5 and 6 who are shown as neighbours to the scene of offence and circumstantial witnesses also did not support the prosecution case and they were also declared hostile. P.W.7 who is a panch witness spoke about the seizure of M.Os.1 to 3 under Ex.P.7 scene of offence panchanama. P.W.9, who is brother of the appellant, deposed that he came to know that the deceased died due to burn injuries. P.W.9 is not an eye witness to the incident and his evidence is of no help to the prosecution case. P.W.10 is the photographer who photographed the scene of offence. 12. P.W.11, the Magistrate, deposed that on receipt of Ex.P.10 requisition from P.W.15 (Sub-Inspector of Police), he proceeded to OGH, obtained certificate from the duty doctor that the patient is of sound mind, conscious and coherent to give statement, and after putting some preliminary questions to the deceased so as to satisfy himself that she is fit to make a declaration, recorded her dying declaration which is marked as Ex.P.11. In the cross- examination, P.W.11 admitted that the deceased gave answer to question No.7 to the effect that kerosene was put on her body and for question No.10 she did not specifically mention kerosene fell on her saree but she stated in Urdu to the effect that Gas ka Tel fell on her saree which means kerosene. P.W.11 further admitted that the deceased stated that only one match stick was lit. He also stated that while he was recording the statement of the deceased none of her relatives were present nearby that place. 13. It may be noted that P.W.12, the Head Constable, who recorded the statement of the deceased in the first instance, in his cross-examination, admitted that while recording Ex.P.12 statement of the deceased, he directed her relatives to stay away at some distance and they were not present near that place when he recorded that statement. 14. It may also be noted that P.W.13 MRO deposed that he conducted inquest over the dead body of the deceased and recorded the statement of her (the deceased) father who stated that there was harassment by the husband of the deceased and on the date of incident there was quarrel between the deceased and accused and due to that the deceased poured kerosene on herself and committed suicide. 15. It may be noted that the deceased, in her earlier statement Ex.P.12, on the basis of which the above case was registered, categorically stated that one Akhil (Aquil), who is not living with his wife, is a friend of her husband (appellant) and they both are drinking daily. It is also stated by the deceased that when she questioned the appellant as to why Akhil (Aquil) is coming to their house, the appellant started beating her regularly on that issue. The deceased also stated that on the date of the incident i.e. on 22.05.2003 in the afternoon her relatives came to the house and talked to them on Akhil’s (Aquil’s) issue and when they left the house, the appellant started beating her and after some time due to the harassment she poured kerosene on her body and set fire herself at her house at about 3.30 p.m. and immediately her aunt who was residing in the same locality brought her to hospital where the duty doctor admitted her in hospital. The deceased in her statement reiterated that due to the harassment of her husband (appellant) she set fire to herself at her house. 16. However, in Ex.P.11 dying declaration recorded on 23.05.2003 by the Magistrate P.W.11, in the answer given by her for question No.7, she has given a go bye to her earlier version given in Ex.P.12 and stated that yesterday in the afternoon at 2.00 p.m. appellant came and quarreled with her on the keeping of his brother-in-law Syed Aqeel and when she objected for it, he (appellant) beat her and put kerosene on her body and lit a match stick and she was burnt over upper body. It may also be noted that in the answer given by her for question No.10 as to how her husband poured kerosene and lit match sticks, she stated that on their quarrel she stated that she will die and on that he (appellant) said “to marna chahti haina to mar. Phir Gas ke Tail ka Sheesha wha par tha our hum do no ke beech main takar hoi aur sheeshaw ke teil meri saree pur hai gaya aur who kasti kheech kar laga di aur mein jal gai.” (When the quarrel ensued between them, she stated that she wants to die. On that, her husband stated that if you want to die you can die. A kerosene bottle was at the place between them and while quarrelling that kerosene fell on her saree and he lit the match stick and set her on fire and she burnt). 17. The above statement of the deceased in Ex.P.11 is totally inconsistent with her earlier statement in Ex.P.12. The learned Sessions Judge in para-17 of the judgment, except relying upon the evidence of P.W.11 the Magistrate who recorded the dying declaration and the recitals in Ex.P.11 dying declaration, has not discussed anything about the above contradiction. The evidence of P.W.12 head constable clearly shows that he directed the relatives of the deceased who were standing by the side of the deceased to stay at some distance while recording her statement. Here the contention of the learned counsel for appellant that the chance of the deceased getting tutored by her relatives to give a different statement so as to implicate the appellant in the case and therefore on the next day when P.W.11 recorded her statement she might have given a different version to that of the earlier one cannot also be ruled out. This aspect has not been considered by the learned Sessions Judge. 18. Having regard to fact that all the prosecution witnesses have turned hostile, it is unsafe to convict the appellant solely basing upon the subsequent dying declaration i.e. Ex.P.11 recorded by the Magistrate. This conclusion is also fortified with the evidence of P.W.13 MRO who deposed that he conducted inquest over the dead body of the deceased and he also recorded the statement of the father of the deceased who stated that on the date of incident there was quarrel between the deceased and the appellant and due to that the deceased poured kerosene on herself and committed suicide. It is now well settled that when there are two dying declarations and when there are glaring contradictions in both the dying declarations and when there are no eye witnesses to the alleged incident, it is unsafe to rely upon a particular dying declaration and convict the accused. (See State of Maharashtra vs. Sanjay[1] and Chinnamma vs. State of Kerala[2]). Therefore it is clear that the prosecution could not prove the charge under Section 302 IPC against the appellant beyond all reasonable doubt. 19. With regard to the charge under Section 498-A IPC also, no evidence is forthcoming from the prosecution witnesses to show that the appellant ever subjected the deceased to cruelty i.e. the conduct of the appellant is of such a nature as is likely to drive the deceased to commit suicide or that the appellant ever harassed the deceased with a view to coerce her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Therefore, the findings of the learned Sessions Judge for the charge under Section 498A IPC cannot also be sustained. 20. Having regard to the facts and circumstance of the case and for the reasons stated hereinabove, we are of the view that the appellant (Accused No.1) who is charged with the offences punishable under Sections 498-A and 302 IPC is liable to be acquitted of the said charges and he is accordingly acquitted. Therefore, the convictions and sentences recorded by the I Additional Metropolitan Sessions Judge, Hyderabad, in Sessions Case No.384 of 2004 by judgment dated 04.08.2007 are set aside and the appellant (Accused No.1) shall be set at liberty forthwith if he is not required in any other case. The fine amount if paid shall be refunded to the appellant. 21. The Criminal Appeal is accordingly allowed. ______________________ A. GOPAL REDDY, J _____________________ N. RAVISHANKAR, J 1st December 2011 CVRK [1] (2004) 13 Supreme Court Cases 314 [2] (2004) 12 Supreme Court Cases 244