THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 5 of 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Reddy) 1. Five persons stood for trial in Sessions Case No.69 of 2001 before the learned III Additional Metropolitan Sessions Judge, Hyderabad. The appellant herein is A . 1 . The learned Sessions Judge, by impugned judgment dated 20.12.2006, convicted the appellant of the offences punishable under Sections 302 and 498A of the Indian Penal Code, 1860 (for short, ‘I.P.C.’) and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for two months, and rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for one month, respectively, while acquitting A.2 to A.5 of the offence punishable under Section 498A I.P.C.. Challenging the convictions and sentences, the present appeal is preferred by the appellant/A.1. 2. The gravamen of the case of prosecution is that A.1 is the husband, A.2 and A.3 are the in-laws, A.4 is the sister-in-law and A.5 is the husband of sister-in-law, of Kiranmai (hereinafter referred to as ‘the deceased’). On 12.5.1999, P.W.1 lodged Ex.P1-complaint before P.W.23- Sub Inspector of Police, R.P.S., Khammam stating that about 12 years back, the deceased married A.1, who is their relative, against the wish of her parents; A.1 was loitering without any work and developed habit of drinking and other activities, and he also doubted integrity of the deceased in every matter and never allowed her to go out and used to beat her in drunken condition for money; as the deceased married A.1 without their permission, she never used to reveal anything. It is further stated that, though the deceased married A.1 against their wish, they gave Rs.2,00,000/- to A.1 with a hope that he would look after his daughter well; but, again, he started torturing his daughter in many ways and made her to ask for Ac.4.50 of land and they gave the same to him; two years back, A.1 also tried to pour kerosene on the deceased, but the deceased came out of the house, and so he could not do anything, but she did not disclose it to them; after some time, A.1 beat the deceased and broke household articles, for which their relatives admonished him. It is further stated that, about a year back, unable to bear the troubles, the deceased informed the same to his son Rajesh, who came to Khammam and took the deceased to Hyderabad, and his son disclosed the matter to him and asked them to stay along with the deceased; accordingly, he and his wife went to Hyderabad and residing there; three months thereafter, A.1, having known that he went to Lakshmipuram, came to their house and knocked at the door, and when the deceased opened the door, he tried to stab her, but the deceased at once closed the door and made hue and cry, and on that, he ran away; in that connection, a panchayat was held at Khammam wherein the deceased made a hell of commotion; thereafter, A.1 used to telephone the deceased and tell her that he would kill by pouring acid and throw her in Hussain Sagar, and being afraid of the same, he lodged a complaint in Kushaiguda police station, and when the case was still pending, they filed a case for divorce. It is further stated that, when his brother- in-law informed that he was constructing a house, he went to Lakshmipuram on 5.5.1999, and on 6.5.1999, his wife, the deceased and grandson came there; thereafter, after going to Kuntla, they came to Khammam on 11.5.1999, and at 7.00 AM on 12.5.1999, his wife, the deceased, grandson and P.W.3-his sister’s son were waiting at Khammam railway station, A.1 came from behind of the deceased, filled petrol in a water bottle, poured it on her head, ignited with match stick and ran away; on that, the deceased fell down on ground with flames on her body; P.W.3 and some other passengers joined together, extinguished the flames and shifted her to hospital; while he was in Lakshmipuram, this incident was informed to him on phone by P.W.3, and on that, he came there and lodged the complaint. Thereafter, the deceased was shifted to Government Headquarters Hospital for treatment. On receipt of the same, police registered a case and issued Ex.P15-F.I.R. P.W.23 recorded statements of P.Ws. 1 to 5, went to scene of offence, conducted observation panchanama of scene of offence in the presence of P.Ws. 12 and 13 and seized M.Os. 1 and 2, under cover of Ex.P2-panchanama. He examined P.Ws.6 and 7 and L.W.7-Gudipudi Seethaiah and recorded their statements. P.W.20 is the Civil Assistant Surgeon, Government Hospital, Khammam rendered first aid to the injured and referred her to Appollo Hospital, Hyderabad. P.W.21-II Additional Judicial Magistrate of First Class, Khammam recorded Ex.P14-dying declaration of the deceased. P.W.16-III Metropolitan Magistrate, Hyderabad, on Ex.P7-requisition, recorded Ex.P8-dying declaration of the deceased in Appollo Hospital, Hyderabad. On receipt of Ex.P24-death intimation from hospital at 10.00 AM on 22.5.1999, P.W.14-Sub Inspector of Police registered a case in crime no.227 of 1999 and issued Ex.P5-F.I.R. P.W.22-Head Constable of Police conducted inquest over the dead body of the deceased in Appollo Hospital in the presence of mediators under Ex.P15-inquest report. P.W.15-Doctor conducted autopsy on the dead body of the deceased on 22.5.1999 and issued Ex.P6-post-mortem report. After completion of investigation, P.W.24 laid the charge sheet. 3. The trial Court framed the following charges against the accused. “Firstly: That you A.1 prior to 12.5.1999 at Guvvalagudem being the husband of the deceased Kiranmai with the instigation of A.2 to A.5 subjected her to cruelty by torturing her physically and mentally by collecting additional dowry of Rs.2,00,000/- and thereby committed an offence punishable U/s. 498-A of IPC and within my cognizance; Secondly: That you A.1 on 12.5.1999 at 7.00 a.m. at Khammam Railway Station did commit murder by intentionally causing the death of Kiranmai poured kerosene on her person and lit fire by matching with a stick and thereby you committed an offence punishable U/s. 302 of IPC and within my cognizance;” When the charges were read over and explained to the respective accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 24 and got marked Exs.P1 to P18, besides case properties M.Os. 1 and 2. 5. After completion of the prosecution side evidence, accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of the prosecution witnesses, for which they denied. The accused reported no defence evidence, but exhibited Ex.D1-contradiction. 6. The learned Sessions Judge, considering evidence on record, found the appellant/A.1 guilty of the offences punishable under Sections 302 and 498A I.P.C., accordingly convicted and sentenced him as stated above, while acquitting A.2 to A.5 of the charge levelled against them. Challenging his convictions and sentences, A.1 filed the present appeal. 7. Sri C.Damodar Reddy, learned counsel appearing for the appellant/A.1 strenuously contended that all the prosecution witnesses are close relatives to the deceased and they are partisan witnesses; that, it is the case of prosecution that the appellant poured petrol on the head of the deceased and lit match stick, but no injuries as such were found on her head; that, the presence of P.Ws. 2 to 5 is not mentioned in Exs.P8 and P14-dying declarations and therefore their presence at the scene of occurrence at the relevant point of time of the incident is doubtful, and they are planted witnesses; that the prosecution failed to explain the delay in lodging the report, which was received at 4.30 PM on 4.5.1999 and reached the concerned Magistrate on the next day in forenoon, and therefore, the appellant is entitled for benefit of doubt. It is also his contention that in the absence of any evidence to prove that the appellant harassed or subjected the deceased to cruelty, in connection with demand of additional dowry, the conviction for the offence under Section 498A I.P.C. is unwarranted. Hence, he prays to set aside the convictions and sentences. 8. On the other hand, the learned Public Prosecutor seeking to sustain the conviction and sentence, contended that there is no contradiction in the dying declaration recorded by P.Ws. 16 and 21; that, when the incident occurred at 7.30 AM in the morning between 8.30 AM and 9.10 AM, first dying declaration was recorded, wherein the deceased categorically stated that it is the appellant who poured kerosene on her and lit fire to her; that, the dying declarations are not shown to be on account of tutoring or prompting; that, the evidence of P.Ws. 2 to 5 is consistent with regard to the occurrence of the incident proper and the appellant being the assailant; that, there was harassment by the appellant towards the deceased to meet unlawful demand; that, the learned Sessions Judge, after an elaborate consideration of the evidence on record, rightly convicted and sentenced the appellant and there are absolutely no grounds to interfere with the same. 9. In view of the rival submissions as referred to above, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellant/A.1 for the charges leveled against him beyond all reasonable doubt and whether the convictions and sentences recorded by the learned Sessions Judge are liable to be set aside or modified ? 10. P.W.22 is the then Head Constable of Police, who conducted inquest on the dead body of the deceased on 22.5.1999 at about 10.00 AM in Appollo Hospital, Banjara Hills, Hyderabad, under Ex.P15-inquest report. It is his evidence that the inquest mediators opined that the deceased died due to burn injuries caused by her husband. 11. P.W.15 is the then Professor of Forensic Medicine, Gandhi Medical College, Hyderabad, who conducted autopsy on the dead body of the deceased on 22.5.1999 from 2.30 PM to 3.30 PM, and found ante- mortem burns superficial in nature, over the face, neck, chest, upper part of abdomen, both upper limbs and left thigh an complete back. He issued Ex.P6-postmortem certificate. He opined that the cause of death of deceased is due to burns. Nothing has been elicited to discredit the testimony of P.Ws. 22 and 15. From their evidence and the recitals in Exs.P6 and 15, the homicidal nature of death of the deceased is established beyond reasonable doubt. Now, it has to be seen whether the appellant/A.1 is the assailant of the deceased or not ? 12. P.W.1 is the father of the deceased. He set the criminal law into motion. He is not an eye-witness to the incident. He rushed to the hospital after having come to know about the admission of the deceased in the hospital with burn injuries through his nephew P.W.3 by way of telephone call and found his daughter with burn injuries, and on his enquiry, the deceased narrated about the incident. He deposed in the lines of the contents of his report Ex.P1. So, his evidence is not much relevant to prove the incident proper. 13. P.Ws. 2, 3 and 4 are the eye-witnesses to the incident. P.W.2 is the mother and P.W.4 is the son, of the deceased. It is their evidence that at 7.00 AM on the fateful day of the incident, they along with the deceased were on plat form no.2 of Khammam railway station to board Satavahana express; that, when the train arrived, P.Ws. 3 and 4 went ahead to secure seats for them, and when P.W.2 and the deceased were waiting, A.1 came behind the deceased with a petrol bottle in his hand, poured petrol on the head of the deceased and set her ablaze with the help of match box and stick, and ran away from the spot. It is their further evidence that, they with the help of the passengers there, put off the flames and shifted the injured to the Government Hospital, Khammam, where she succumbed to the injuries. 14. P.W.5 is resident of Khammam. He is brother-in- law of P.W.3 and also related to P.Ws.2, 4 and the deceased. It is his evidence that P.Ws.2, 4 and the deceased stayed in his house in the night of 11.5.1999, and that on 12.5.1999 at about 6.30 AM, they left his house to go to Hyderabad by Satavahana express, and at about 8.30 AM, he was informed by P.W.3 about the incident. No doubt, he is not an eye-witness to the incident and is only hear-say evidence and his evidence is not much relevant to prove the occurrence of the incident proper, but his evidence is very clear that P.Ws.2, 4 and the deceased stayed in his house in Khammam on the previous day night of the date of the incident. 15. P.W.6 is not an eye-witness to the incident. His evidence is that he only saw P.Ws.2 to 4 and the deceased on the railway platform on the fateful day of the incident as he also was there on the platform to go to Warangal on personal work. So, his evidence is also not much relevant to the occurrence of incident proper. But, he identified A.1 in the test identification parade conducted by P.W.17 under Ex.P11. 16. Similarly, P.W.7 is not an eye-witness to the incident. He worked as Lecturer in K.V.C.M. Degree College, Wyra, Khammam at the relevant point of time of the incident. His evidence is that, as usual, in order to go to Warangal by Satavahana express, he came to railway station on the fateful day also and when he was trying to board the train, he heard some cries and came to know about the incident. So, his evidence is also not much relevant to the occurrence of incident proper. But, he also identified A.1 in the test identification parade conducted by P.W.17 under Ex.P11-Test identification proceedings. 17. P.W.8 is also not an eye-witness to the incident. His evidence would only go to show that when he went to house of deceased and A.1, they were quarrelling with each other. Similarly, P.W.9 is also not an eye-witness and he only deposed about some quarrels that took place between the couple. So, their evidence is also not much relevant to the occurrence of incident proper. 18. The evidence of P.W.10 is also not much helpful to the case of prosecution, as he only deposed about the deceased and A.1 residing in Kamalanagar, Secunderabad and about some disputes between the couples during their stay there. P.W.11, who is the then Assistant Manager of Vijaya Bank, Khammam, only deposed sanctioning of loan of Rs.35,000/- to the deceased by their bank. 19. P.Ws.12 and 13 are the panchayatdars present when police observed the scene of occurrence under Ex.P2-scene observation report and seizure of M.Os. 1 and 2 from the scene of occurrence. 20. P.W.14, who is the then Sub Inspector of Police, Banjara Hills, Hyderabad, only deposed about receipt of death intimation Ex.P4 on 22.5.1999 at about 10.00 AM and registration of case in crime no.227/1999. 21. P.W.20, who worked as Civil Assistant Surgeon, Government Headquarters Hospital, Khammam at the relevant point of time of the incident, treated the injured immediately after the incident and issued Ex.P12-injury certificate. P.W.21, who worked as the II Additional Junior Civil Judge, Khammam, at the relevant point of time of the incident, recorded Ex.P14-dying declaration of the deceased on 12.5.1999 at about 8.55 AM in Government Headquarters Hospital, Khammam. P.W.20 certified that the deceased was conscious and coherent to give the statement. The deceased stated in Ex.P14 that she was residing separately form her husband at Hyderabad; that one week prior to the date of incident, she went to her maternal uncle’s house in Khammam, and on that day, when she came to Railway Station, Khammam to go to Hyderabad, her husband (A.1) poured petrol on her body at about 7.30 AM and lit fire resulting in burns and that she was shifted to hospital by son of her paternal uncle. Nothing has been elicited to discredit the testimony of P.W.21 and the contents in Ex.P14. P.W.21 categorically stated that relatives of the patient were outside the casualty ward, but not near or around the patient. 22. P.W.16, who worked as III Metropolitan Magistrate, Hyderabad at the relevant point of time of the incident, recorded Ex.P8-dying declaration of the deceased at about 00.50 hours on 13.5.1999 in Appollo Hospital, Banjara Hills, Hyderabad. He stated that, the duty doctor endorsed that the patient was conscious and coherent to give the statement. The deceased stated in Ex.P8 that her husband poured petrol on her head and she tried save herself, lit fire at the Railway Station, Khammam, when she went there to go to Hyderabad by Satavahana Express. He categorically stated that except the duty doctor and nurse, no third person was present by the time he went to the deceased for recording the statement. Nothing has been elicited to discredit the testimony of P.W.16 and the contents in Ex.P8. 23. It is well settled that, if the dying declaration is found to be true and trustworthy, and not an outcome of tutoring or prompting by any of the relatives of the victim, then it can be acted upon without any corroboration when the cause of death of the said person comes into question, and in such a case, there is no bar to base a conviction solely basing on the dying declaration.. As can be seen from Exs.P8 and P14, they are consistent with regard to appellant/A.1 pouring petrol on the body of the deceased and litting fire to her in Khammam railway station. They are not shown to be an outcome of tutoring or prompting by the relatives of the deceased. They were recorded by the competent Magistrate after the competent doctor certified that the deceased was conscious and coherent to give the statement. Hence, Exs.P8 and P14 can be acted upon. 24. P.W.17, who worked as VIII Additional Metropolitan Magistrate, Hyderabad, conducted test identification parade in Central Prison, Musheerabad, Hyderabad, under Ex.P11, after observing required formalities. In the test identification parade, P.Ws.6 and 7 identified A.1 as the culprit. Nothing has been elicited to discredit the testimony of P.W.17 and the contents in Ex.P11. 25. P.W.14 worked as Sub Inspector of Police, Banjara Hills police station at the relevant point of time of the incident. He deposed that on receipt of Ex.P4-death intimation from Appollo Hospital, on 22.5.1999 at 10.00 AM, he registered crime no.227 of 1999 and issued Ex.P5-F.I.R. P.W.18 worked as Sub Inspector of police, Kushaiguda police station. He deposed about receipt of written complaint from the deceased on 11.9.1998 and registration of crime no.242 of 1998, and about forwarding the same to Women Police station, Saroornagar after recording statements of witnesses in the said case. P.W.19, who worked as Sub Inspector of Police, Women police station, Saroornagar, deposed about laying of charge sheet in the above crime after completion of investigation. 26. P.Ws. 23 and 24 are the investigating officers, who deposed about registration of crime, conducting of scene of observation panchanama, seizure of material objects, giving requisition for conducting test identification parade, recording statements of witnesses and filing of charge sheet after completion of investigation. 27. A perusal of the evidence of prosecution witnesses would go to show that the evidence of P.Ws. 2 to 4 is consistent and trustworthy. Though they were cross- examined at length, nothing has been elicited to discredit their testimony. They have no grouse or enmity against the appellant/A.1 to implicate him falsely in a case of this nature. Their presence at the relevant point of time of the incident is quite natural and probable, and is established beyond reasonable doubt. Their names, as eye- witnesses to the incident, were mentioned in Ex.P1- complaint in the earliest point of time, which was lodged within a few hours after the occurrence of the incident. It is well settled that F.I.R. is a vital and valuable piece of evidence for corroborating the oral evidence of prosecution witnesses. Their evidence is corroborated with the contents in the first information report. They identified the material objects M.Os. 1 and 2. 28. No doubt, P.Ws.6 and 7 are strangers to the appellant/A.1. It is clear from their evidence that P.W.6 came to Railway Station, Khammam by Satavahana express to go to Warangal on personal work, and so also, it is clear from the evidence of P.W.7, who was Lecturer working in Khammam, that at the relevant point of time of the incident, he was going to Warangal every day in connection with spot valuation work, and was returning to Khammam, and on the fateful day, he was there in Railway Station, Khammam to go to Warangal by Satavahana express. It is their evidence that they noticed A.1 running away from the spot. Normally, identification parade is generally held during the course of investigation with the primary object of enabling the witnesses to identify the assailants who are suspected to have committed the offence and who are not previously known to the witnesses. The purpose of test identification parade is to test the memory and veracity of the witnesses, who claim to identify an accused person who participated in commission of offence. Identification is necessary where the accused is not known to the witnesses prior to the offence or when he had an occasion to see the accused person while at the commission of the offence. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression. P.Ws.6 and 7 identified the appellant/A.1 in the test identification parade conducted by P.W.17 in jail. Therefore, their identification of A.1 in the test identification parade conducted by P.W.17 is also one of the circumstances to show that it was the appellant/A.1 who ran away on the fateful day from the scene of offence. 29. The above evidence, coupled with Ex.P8 and P14, would clearly go to show that the prosecution clinchingly established that it is the appellant/A.1 who poured petrol on the deceased and lit fire to her. The trial Court, on appreciation of the evidence on record in right perspective, convicted and sentenced the appellant/A.1 of the offence punishable under Section 302 I.P.C. and there are no grounds to interfere with the same. 30. Coming to the conviction and sentence recorded against the appellant/A.1 for the offence punishable under Section 498A I.P.C., whoever, being the husband or the relative of the husband of a woman subjects her to cruelty, he shall be punishable under Section 498A I.P.C. Explanation: For the purposes of this section “cruelty” means- “(a) any willful conduct which is of 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 to her to meet such demand. 31. P.W.1 himself categorically stated that the deceased never informed that she was subjected to harassment by her in-laws or the sister of A.1 or the husband of sister of A.1, and that he does not know whether A.1 harassed his daughter on his own or at the instigation and abetment by somebody else. Admittedly, there are no eye-witnesses to the alleged harassment by A.1 to the deceased. The evidence of witnesses is only hear-say. The deceased also, in her dying declarations Exs.P8 and 14, did not state anything with regard to the harassment by A.1 in connection with demand of additional dowry. Further more, The evidence