* HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA + Crl..A. No. 708 of 2000 %14-12-2010 # 1. Mogilicherla Bhixapathi 2. Mogilicherla Rajeswaramma .. Appellants/ A1 & A2 Vs. $ The State of A.P. rep. By its Public Prosecutor, High Court of A.P., Hyderabad .. Respondent !Counsel for the Appellants: Smt A.Gayatri Reddy Counsel for the Respondent: The Addl. Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 2008(1) ALD (Crl.) 880 (SC) 2. 1958 SCR 552 3. 2008(1) ALD (Crl.) 316 (SC) JUDGMENT: (Per Hon’ble Sri Justice B.N.Rao Nalla) This Criminal Appeal is preferred by the accused-A1 and A2 against the Judgment dated 21.03.2006 delivered in S.C.No.252 of 2005 by III Additional Sessions Judge, Karimnagar, whereby the accused are found guilty of the offence punishable under Sections 498-A, 302 read with 34 IPC, 304-B IPC and Sections 3 and 4 of Dowry Prohibition Act and convicted and sentenced them to under imprisonment for life and pay a fine of Rs.1,000/- each, in default of payment of fine, they shall undergo Simple Imprisonment for a period of two months each for the offence punishable under Section 302 read with 34 IPC. They are further sentenced to undergo Rigorous Imprisonment for a period of ten years each for the offence punishable under Section 304-B IPC, and further sentenced to undergo Rigorous Imprisonment for a period of two years each and pay a fine of Rs.1,000/- each, in default, to suffer Simple Imprisonment for a period of four months each for the offence punishable under Section 498-A IPC, and further sentenced to undergo rigorous imprisonment for a period of three years each and pay a fine of Rs.15,000/- each, in default, to suffer simple imprisonment for a period of one year each for the offence punishable under Section 3 of Dowry Prohibition Act and also sentenced to undergo rigorous imprisonment for a period of six months each, and pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for a period of two months each for the offence punishable under Section 4 of Dowry Prohibition Act, and all the sentences shall run concurrently. The case of the prosecution in brief is that PW1 – M.Rajalaxmi, who is the mother of Kalavathi – deceased, performed the marriage of her daughter with A1 about four years prior to her death and agreed to give Rs.45,000/- as dowry. Out of the agreed dowry, she paid Rs.35,000/- at the time of marriage and promised to pay the balance dowry subsequently. A2 is the mother of the A1. The couple lead marital life happily for sometime, and thereafter, the accused used to ill-treat Kalavathi for getting balance dowry and also additional dowry of Rs.15,000/-. The deceased used to disclose her owes to her parents whenever she visited their house, but they used to console her and send back to her-in-laws’ house. While so, on 13.04.2004, at about 05.30 p.m., when PW1 was in Jaya Bharathi School, where she was working as Attendant, PW3, who is her son, informed that Kalavathi sustained burn injuries and he shifted the victim to MGM Hospital. Immediately, she rushed to the hospital, found the deceased with burn injuries. When she enquired with the deceased as to how the incident happened, she stated that the accused poured kerosene on her and set fire to her on the ground that she failed to bring balance dowry. The deceased succumbed to injuries while undergoing treatment in the hospital. While undergoing the treatment, PW10 – IV Additional Junior Civil Judge, Warangal, recorded her dying declaration. PW1 lodged complaint against the accused. PW15 – Assistant Sub-Inspector of Police, Kamalapur Police Station, registered a case against the accused and PW16 – Sub-Divisional Police Officer, took up investigation, arrested the accused on 18.06.2004, and after completing the investigation filed charge sheet. The charges under Sections 498-A IPC, 302 read with 34 IPC, 304-B IPC and Sections 3 & 4 of Dowry Prohibition Act, which are levelled against the accused, were read over and explained to them, but they pleaded not guilty. To substantiate the case of the prosecution, it examined PWs.1 to 16 and got marked Exs.P1 to P19 besides case property M.Os.1 to 4. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.PC. wherein they denied the incriminating circumstances appearing in the prosecution evidence. No oral or documentary evidence was adduced on behalf of the accused. The trial Court, after considering the evidence of the prosecution witnesses, found the accused guilty and convicted and sentenced them as stated supra. Being aggrieved by the same, the accused have filed the present appeal. The point for determination is whether the prosecution proved the guilt of the accused for the offences punishable under Sections 498-A IPC, 302 read with 34 IPC, 304-B IPC and Sections 3 and 4 of Dowry Prohibition Act, beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? PW1 – mother of the deceased, deposed as to the performance of marriage of her younger daughter-Kalavathi with A1; her agreement to give dowry of Rs.45,000/-, out of which Rs.35,000/- was paid, demand of additional dowry of Rs.10,000/- by the accused and also as to the commission of offence by A1 and A2 subjecting her daughter to mental and physical cruelty, pouring kerosene and setting fire to her. In cross-examination, she denied the suggestion that they did not perform the marriage of her daughter with A1. PW2 – father of the deceased and PW3 – brother of the deceased also deposed on the same lines as deposed by PW1. In cross-examination, they denied the suggestion that they did not perform the marriage of Kalavathi with A1. PW4, neighbour of the deceased, who was declared hostile, deposed that at 5.00 p.m. on the date of occurrence of offence, he heard some noise from the house of the accused and immediately rushed there and observed the deceased in flames and he covered her body with blanket and he did not know the reasons for the burn injuries. PWs.5 and 6 deposed that they do not know the terms of the marriage nor the disputes between the deceased and A1, and they came to know about the deceased sustaining burn injuries and was being shifted to M.G.M. Hospital, Warangal. Their evidence is not of much avail. PWs.7 and 8 were declared hostile. PW9, resident of Katnepalli, deposed as to the inquest held over the dead-body of the deceased by the Mandal Revenue Officer. PW10, the then IV Additional Junior Civil Judge, Warangal, deposed that on 13.04.2004, at 07.30 P.M. on receipt of a requisition from out-post police, M.G.M. Hospital, Warangal, for recording dying declaration, he went to the hospital, but before he recorded dying declaration, the deceased was certified by the duty Medical Officer that she was in fit state of mind, conscious and coherent to give her statement, and the Doctor also made an endorsement to that effect, and then PW10 recorded her dying declaration, which is marked as Ex.P12, and he read over and explained the contents to her, who accepted the same, and he obtained her right toe impression at the end of the dying declaration. PW11 deposed as to the seizure of M.Os. 1 to 4 by the police under Ex.P15. PW12 – Dr.L.Vinod Kumar, who was Assistant Professor, Department of Forensic Medicines, Warangal, deposed that on 14.04.2004, on receipt of requisition from the Mandal Revenue Officer, he conducted autopsy over the dead body of the deceased and opined that the deceased suffered 90% of burns and died of burn injuries. PW13, the then Mandal Revenue Officer, Warangal deposed as to the conduct of inquest over the dead body of the deceased. He and other panchas opined that the deceased died of burn injuries. PW14, photographer, deposed that he took photographs of the dead body of the deceased at mortuary of M.G.M. Hospital, Warangal. PW15, the then Sub-Inspector of Police, Kamalapur, deposed that he gave requisition to PW13 for conducting panchanama because she died within seven years from the date of marriage. He visited the scene of offence, prepared rough sketch and seized M.Os. 1 to 4. PW16, the then Sub-Divisional Police Officer, Karimnagar, who took up investigation in the matter, deposed that on 16.04.2004 he visited the scene of offence i.e. the house of the accused, secured the presence of PWs.1 to 8 and PW14, examined them and recorded their statements under Section 161 Cr.P.C. Heard the learned counsel for the appellants and the learned Additional Public Prosecutor appearing for the State. We have carefully perused the records and given our anxious considerations of the contentions urged by both the parties. From the evidence of the prosecution witnesses coupled with Exs.P1 to P19, the facts that the marriage of the deceased with A1, the demand of dowry of Rs.45,000/- by the accused and payment of Rs.35,000/- to the accused by the parents of the deceased, and the demand of balance dowry and additional dowry of Rs.10,000/- by the accused are not disputed. Inasmuch as the evidence of PWs.1 to 3 to the effect that the accused demanded dowry of Rs.45,000/- and additional dowry of Rs.15,000/- remains uncontroverted, we hold that the accused undoubtedly demanded the alleged dowry from Kalavathi, which constitutes an offence punishable under Sections 3 and 4 of Dowry Prohibition Act. The second aspect of the matter is that most of the witnesses other than the members of the family of the deceased, spoke as to the burns suffered by the deceased miserably after she was set ablaze by the accused. With regard to the ingredients, which attract the offences punishable under Sections 302 and 304-B IPC, i.e. subjecting a woman to cruelty and causing her murder within seven years from the date of the marriage, this Court has to examine the evidence of prosecution witnesses and the medical evidence in the light of the dying declaration of the deceased recorded by PW10 – IV Additional Junior Civil Judge, Warangal. The Apex Court, in Vikas and Others Vs. State of Maharashtra[1], while referring to earlier cases, summed up principles governing dying declaration as under. i) There is neither rule of law nor prudence that dying declaration cannot be acted upon without corroboration. ii) If the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. ix) Normally, the Court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. x) Whether the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. The Apex Court further held that one of the principles formulated by this Court in Khushal Rao vs. State of Bombay[2], was that where a dying declaration is recorded by a competent Magistrate, it would stand on a much higher footing. In another case in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur. A.P. (S.C.)[3] the Apex Court observed thus: “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.” PW10, the then IV Additional Junior Civil Judge, Warangal, specifically deposed in his evidence at the time of recording the dying declaration of Kalavathi, that she was in a fit state of mind, conscious and coherent and after recording her statement, he obtained her right toe impression on the dying declaration, and the same was read over to her. He further deposed that the mental condition of the deceased was also endorsed by the duty Medical Officer, who was present during the recording of the dying declaration. Ex.P12-dying declaration reveals that both the Medical Officer and IV Addl. Junior Civil Judge certified to the effect that the deceased, at the time of making her statement, was conscious and coherent and her mental faculties are normal throughout the proceedings of dying declaration. It further reveals that at the time of the marriage, Rs.35,000/- was given to the accused and when she failed to pay the balance of Rs.10,000/- the accused harassed her, subjected to physical and mental cruelty, poured kerosene and set her ablaze. The deceased answered to question No.7 in the dying declaration that “her husband and mother- in-law poured kerosene on her and set her ablaze by liting a match- stick for the reason that she did not comply with the demand of balance dowry of Rs.10,000/-“. Further, to question No.8, she stated in clear terms that “her husband and mother-in-law set her ablaze and action may be taken against them.” From this, it is crystal clear that the deceased gave her statement when she was in a fit state of mind. Further, the evidence of PWs.1 to 3, parents and brother of the deceased to the effect that the accused subjected her to cruelty and harassment demanding additional dowry of Rs.10,000/- and pouring kerosene and setting her ablaze, receives full corroboration from the dying declaration as well. Obviously, there is no contrary evidence indicating that the deceased at the time of her statement being recorded, was tutored or prompted by PW1 or any external agency or was there any product of imagination, and moreover, her statement is fully supported by Duty Doctor, who also opined in Ex.P12 – dying declaration that she was in a fit state of mind. Therefore, the dying declaration, which is the substantial piece of evidence, has inspired confidence so as to make it safe to act upon. Apart from the above, the evidence of PWs.1 to 3, who are interested witnesses, as to the cause of the death of Kalavathi, is fortified by the evidence of PWs.12 – Assistant Professor of Department of Forensic Medicines and PW13 – Mandal Revenue Officer, who conducted autopsy over the dead body of the deceased opining that the deceased died of 90% of burns. Hence, this Court is thoroughly satisfied with the entire narration of events stated by the deceased in her dying declaration recorded by PW10 and the cumulative effect of the other evidence including the medical evidence and the circumstances that are taken into consideration, as such, the same cannot be discounted. In that view of the matter, we hold that the accused, for the reason that the deceased failed to pay the balance dowry amount, harassed her by subjecting her to physical and mental cruelty, and ultimately poured kerosene on her and set her ablaze and committed an offence punishable under Sections 498-A IPC and 302 read with 34 IPC. Further, admittedly, the occurrence of offence took place on 13.04.2004 and the marriage of A1 with the deceased, according to the evidence of PWs.1 and 2, took place about five years prior to the date of offence which was corroborated by the evidence of PW15 - Sub- Inspector of Police, Kamalapur who stated that he gave requisition to PW13 for conducting panchanama because Kalavathi died within seven years from the date of her marriage. This piece of ocular evidence has remained uncontroverted and unrebutted. Hence, this Court has no hesitation in inferring that the marriage of the deceased with A1 took place within seven years from the date of their marriage, which attracts the ingredients of the offence punishable under Section 304-B IPC. Thus, the contentions put forth by the learned counsel for the appellants are wholly unsustainable, and the judgment of the trial Court, in our considered opinion, is correct, legal and proper. For the foregoing reasons, the appeal is dismissed. The judgment of conviction and sentenced recorded against the appellants are upheld. _______________ V. ESWARAIAH,J 14th December, 2010 ________________ B.N.RAO NALLA, J Note: L.R. Copy to be marked B/o bcj [1] 2008(1) ALD (Crl.) 880 (SC) [2] 1958 SCR 552 [3] 2008(1) ALD (Crl.) 316 (SC)