THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.169 of 2007 Date of Judgment: 22-06-2010 Between: Panga Shankar ..Appellant and State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.169 of 2007 Oral Judgment: (Per Honourable Sri Justice K.C.BHANU) 1. The sole accused in S.C.No.161 of 1990 on the file of II Additional Sessions Judge, Karimnagar filed the present appeal under Section 374 (2) Cr.P.C. challenging his conviction for the offences punishable under Sections 498-A, 304-B and 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced him to suffer rigorous imprisonment for two years, seven years and imprisonment for life respectively and to pay a fine of Rs.500/- on two counts. All the sentences are directed to run concurrently. 2. The case of the prosecution is that P.W.2 is the mother, P.W.4 is the grandmother, P.W.5 is the maternal uncle and P.W.12 is the brother of Panga Lavanya @ Sujatha (hereinafter referred to as “deceased”). The accused and P.W.3 worked as AR PC and they were residing in the Police Head Quarters/Sub-Head Quarters at Godavarikhani. The marriage of the deceased was performed with the accused at about eight months prior to the incident. P.W.2 agreed to give Rs.30,000/- as dowry to the accused; at the time of marriage Rs.20,000/- was given and promised to pay the remaining amount of Rs.10,000/- later. After the marriage, both the accused and the deceased lived happily for some time. Later the deceased informed P.Ws.2, 4, 5 and 12 that the accused was harassing her by demanding dowry and used to beat, abuse and burn with cigarettes. When once P.W.4 visited the house of the accused, the accused beat the deceased in her presence. Then, the deceased left to her parents’ house along with P.W.4 and after 8 days the accused took her back. While so, on 03-02-1990 at about 7.40 A.M., P.Ws.1 and 3 heard some cries; P.W.3 rushed to the quarters of the accused and found smoke was coming from the quarters of the accused; then he along with one Maraiah (not examined) knocked the doors of the accused. As the doors are not opened, due to bolted from inside, then they pushed the doors forcibly, got opened and found the deceased in flames. Immediately, P.W.3 picked up a blanket and covered her; when P.W.3 enquired the deceased as to how the incident has happened, she did not disclose anything. Thereafter, she was shifted to the Area Hospital, Godavarikhani. Subsequently, on receiving information, P.Ws.2, 4, 5 and 12 rushed to the hospital and on their enquiry the deceased alleged to have informed them that the accused poured kerosene and set fire to her. Then, at about 1.P.M., on the basis of Ex.P3—report lodged by P.W.2, P.W.8, the Head Constable registered the same as case in Cr.No.16 of 1990 and issued FIR, which is marked as Ex.P9; visited the Area Hospital and recorded the statement of the deceased, which is marked as Ex.P10. He also visited the scene of offence and prepared an observation report in the presence of P.W.6 and one Mamidala Chandraiah, which is marked as Ex.P11. Ex.P12 is the rough sketch of the scene of offence. On 05-02- 1990, on a requisition—Ex.P14, P.W.10 the MRO, recorded the dying declaration of the deceased, which is marked as Ex.P16. P.W.11 is the Sub-Inspector of Police who took up further investigation and recorded the statements of P.Ws.1, 3 to 5; and on receiving the death intimation, he altered the section of law and issued altered FIR-Ex.P17. Then P.W.8 held inquest over the dead body of the deceased. On 08-02- 1990, Dr. A.Pochammalu (not examined since died) held autopsy over the dead body of the deceased and opined that the cause of death was due to shock and septicemia as a result of extensive deep burns. Ex.P13 is the postmortem report. Further investigation was done by the Inspector of Police (not examined, but his signature was identified by P.W.11), who arrested the accused on 12-02-1990 and after completion of investigation he filed the charge sheet. 3. The charges framed against the accused are: “Firstly, on 03-02-1990 at about 12 noon and prior to that at Godavarikhani being the husband of Panga Lavanya @ Sujatha harassed and ill-treated her for dowry and thereby committed an offence punishable under Section 498-A IPC. Secondly, on 07-02-1990 at Godavarikhani your wife Panga Lavanya @ Sujatha died within seven years of her marriage with you and the said death occurred otherwise than under normal circumstances, namely, you poured kerosene on her body on 03-02-1990 and set fire to her while she was in the kitchen room and you subjected her to cruelty and harassment in connection with dowry and thereby committed an offence punishable under Section 304-B IPC. Thirdly, you at the same time and place and during the course of the same transaction referred to above in Charge No.1, did commit murder by intentionally and knowingly causing the death of your wife Panga Lavanya @ Sujatha by pouring kerosene on her body and setting fire to her, while she was in the kitchen room and thereby committed an offence punishable under Section 302 IPC. When the said charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution has examined P.Ws.1 to 12 and got marked Exs.P1 to P18 besides case properties— M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. No oral or documentary evidence was adduced on behalf of the defence. 6. The trial court basing on the evidence on record particularly, the two written dying declarations—Exs.P10 and P16 and oral dying declarations made to P.Ws.2, 4, 5 and 12, found the accused guilty and accordingly convicted and sentenced him as stated above. Challenging the same, the present appeal is filed. 7. The point for determination in this appeal is: “Whether the prosecution has proved the guilt of the accused for the offences punishable under Sections 498-A, 304-B and 302 IPC beyond all reasonable doubt”. 8. The learned counsel for the appellant contended that in view of enmity, the deceased has falsely implicated the accused in this case and the evidence of P.W.3 would go to show that they opened the doors forcibly; that by that time accused was not present and the said fact was stated by the accused when he was examined under Section 313 Cr.P.C.; that the dying declarations are inconsistent with regard to time and offence; that the mediators who observed the scene of offence did not find starch and food at the scene of offence, as it is the specific case of the prosecution that when she is separating the starch from the food, the accused came behind back, poured kerosene and set fire to her; that at the time of recording the statements, relatives of the deceased are present; that there is every possibility for the deceased to give false statement, in view of the fact that the accused severely harassed the deceased prior to the incident, it is not safe to place reliance on the oral dying declarations as well as written dying declarations. Hence, he prays to set aside the convictions and sentences imposed against the accused. 9. On the other hand, the learned Public Prosecutor contended that the oral dying declarations coupled with the written dying declarations lead to an irresistible conclusion that it is the accused who poured kerosene and set fire to the deceased an none else; that the dying declarations are consistent with regard to manner in which the accused came to the kitchen while the deceased was preparing the food, poured the kerosene and set fire to her; that if really she committed suicide, she would not have implicated the appellant/accused falsely, that the trial court after elaborately considering the evidence on record found the accused guilty and there are no grounds to interfere with the same. 10. There are no eyewitnesses to the incident. The entire case rests upon the oral statements made by the deceased to P.Ws.2, 4, 5 and 12 and the statement of the deceased recorded under Section 161 (3) Cr.P.C. by P.W.8 covered under Ex.P10 and another statement recorded by P.W.10 covered under Ex.P16. When the statement, written or verbal, made by a person as to the cause of the death or any of the circumstances resulting the death, in case in which the cause of that person’s death comes into question are admissible in evidence under Section 32 (1) of the Indian Evidence Act, 1872 (for short “the Act”). Once the dying declaration is found to be voluntary statement of a person as to cause of death and it is not an outcome of some other interested persons or tutoring by the relatives and it is found to be true and trustworthy, it can be a sole basis for conviction even without any corroboration. On this point it is pertinent to refer the decision of the Supreme Court in KHUSHAL RAO v. STATE OF BOMBAY [1] wherein it is held as under: “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”. 11. P.W.10 is the Mandal Revenue Officer who held inquest over the dead body of the deceased in the presence of mediators. The mediators opined that the deceased died due to burn injuries. 12. Thereafter, the dead body was subjected to post mortem examination by the Doctor—A.Pochamallu, who conducted autopsy on the dead body of the deceased on 08-02-1990 in between 4.30 P.M. and 6.00 P.M. As per the post mortem report, the deceased suffered from burn injuries on front and back of neck, front of chest, abdomen, front of perineum, back of the chest and trunk, both upper limbs and lower limbs front and back. The deceased suffered 65% to 70% deep extensive burns, which are anti mortem in nature. The Doctor opined that the deceased died due to shock and due to septicaemia as a result of extensive deep burns. 13. In view of the fact that the Doctor—A.Pochamallu who conducted autopsy on the dead body of the deceased died in March 2004, his handwriting and signature was duly identified by P.W.9. That evidence was admissible under Section 32(2) of the Act, which reads thus: “32 (2) When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him, in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him, of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.” In view of the above, since P.W.9 identified the signature of the Doctor —A.Pochamallu, his evidence comes under Section 32(2) of the Act. Therefore, recitals in Ex.P13 can be used as have been approved and admissible in law, as the accused has not denied the cause of death as mentioned in Ex.P13 i.e. due to shock and septicaemia as a result of extensive deep burns. 14. P.Ws.2, 4 and 5 who are close relatives of the deceased have specifically stated that on coming to know about sustaining burn injuries by the deceased, they went to the Area Hospital, Godavarikhani and found Lavanya @ Sujatha (deceased) with burn injuries. When, they enquired the deceased how she sustained burn injuries, the deceased informed them that while she was preparing food, the accused poured kerosene and set fire to her. Though their evidence is consistent with regard to accused pouring kerosene and setting fire with a matchstick, but in view of the fact that they are the close relatives of the deceased, their evidence has to be evaluated carefully and cautiously. 15. Further, P.W.3 and another rushed to the scene of offence on hearing the cries, but the deceased did not inform P.W.3 as to how she sustained burn injuries. It is an admitted fact that P.W.3 and another took the deceased to the hospital and got admitted her. Since P.W.3 was resiling from his earlier statement, he was declared hostile by the prosecution. Though he was declared hostile, his evidence cannot be wiped out from the record, but such part of his testimony, which inspires confidence, can be used either by the accused or by the prosecution for the purpose of corroboration to the other acceptable evidence, if any, available on record. 16. The evidence of P.Ws.2, 4, 5 and 12 would go to show that they were inimical terms with the accused, because the deceased used to inform them that the accused was harassing her to demand dowry; that the accused insisted her to be nude in the house; that he was in the habit of burning her with cigarette buds and used to beat her, abused her and also suspecting her character. Therefore, these witnesses must have grouse or enmity against the accused. For that reason, there was a scope or possibility for these witnesses to implicate the accused falsely taking advantage of the death of the deceased, as a result of burn injuries. That appears to be probable in view of the fact that when the neighbour—PW.3 and another who rushed to the scene of occurrence on hearing the cries, forcibly break open the doors and P.W.3 is the person who covered the blanket on the wife of the accused; when he enquired with the wife of the accused, she did not disclose anything. He also stated that the accused was not present in the house and thereafter, he and Maraiah shifted the deceased to the hospital. Though P.W.1 stated that the accused was found in his portion at about 11 A.M. but she did not enter into the portion where the accused and deceased were residing. She also stated that she does not know whether the accused was residing in his portion at the time of incident. Therefore, her statement that she observed the deceased in his portion, cannot be accepted, in view of the fact that she did not enter into the portion of the accused. Even otherwise, she was also declared hostile by the prosecution. But her evidence would go to show that the incident has taken place at about 11 A.M., whereas the deceased stated to the MRO—P.W.10 in Ex.P16—dying declaration that incident has taken place at about 8 A.M.; in Ex.P10 which is the statement recorded under Section 161 Cr.P.C. by P.W.8, the deceased stated that the incident has taken place while she was cooking food, but whereas Ex.P9, which is the FIR lodged by P.W.2, who is none other than the mother of the deceased, would go to show that the deceased informed her at about 12 noon while the deceased was cooking food, accused poured kerosene and set fire to her. 17. The time of death as stated in all the dying declarations is not consistent, but in the oral dying declarations made to P.Ws.2, 4, 5 and 12, it is clear that while the deceased was preparing food, the accused poured kerosene and set fire to her. In the written dying declarations, it is clear that after cooking food, she was separating starch from the cooked rice and at that time, the accused came behind her and set fire to her. If really that is the case, the mediators, who were observing the scene of offence i.e. kitchen room of the accused, would definitely noticed starch as well as the cooked rice. 18. P.W.8, who observed the scene of offence in the presence of mediators, only seized a plastic cane, matchbox and pieces of burnt petty coat under Ex.P11—panchanama wherein it is clearly mentioned that what they have seen at the spot was incorporated in the panchanama. If really starch and cooked rice were available in the kitchen, they would not have missed that fact. Therefore, non-finding of starch and cooked rice in the kitchen where the incident has taken place would create any amount of doubt with regard to the manner in which the incident has taken place. 19. In view of the fact that there is continuous harassment to the deceased, who suffered mentally and physically at the hands of the accused, there was scope or possibility for the deceased to give a false statement so as to implicate the accused. The evidence on record would clearly go to show that there was continuous harassment by the accused to the deceased with regard to demand of dowry. The accused was suspecting the character of the deceased. Whenever she was talking with any other person, he used to beat the deceased indiscriminately. For these reasons, the deceased must have entertained a grouse against the accused to implicate him falsely. The possibility of implicating the accused, for the aforementioned reasons, cannot be ruled out. 20. The actual time of offence is not being established. The specific charge levelled against the accused is that on 03-02-1990 at about 12 noon he poured kerosene and set fire to the deceased. Therefore, the accused has totally misled by the prosecution with regard to actual time of incident. The case of the accused is that he was not present in the house. Though it is not established, he stated when he was examined under Section 313 Cr.P.C. that he was on sentry duty at different place. Though it is not proved, it can be taken into consideration if any other evidence is available on record. P.W.3 though turned hostile, his evidence is clear that accused was not present at the scene of offence. Therefore, we are unable to place any reliance on the oral dying declarations made to P.Ws.2, 4, 5 and 12 and the written dying declarations made to P.Ws.8 and 10, as they do not appear to be truthful dying declarations of the deceased. 21. P.W.3 who rushed to the scene of offence and who extinguished the fire is the best person to speak about how the deceased sustained injuries. He asked the deceased how she sustained injuries, the deceased did not reveal anything. If really the accused is the assailant of the deceased, the deceased at the earliest point of time, immediately after extinguishing the fire would have stated to P.W.3 that her husband poured kerosene and set fire while she was cooking food. So it raises any amount of doubt with regard to the deceased giving oral dying declarations to P.Ws.2, 4, 5 and 12 and written dying declarations to P.W.8 and P.W10. 22. For the aforesaid reasons, dying declarations do not inspire confidence. Therefore, they require some corroboration. There is no other evidence to show that the accused was present in the house at the relevant point of time of incident or that he set fire the deceased after pouring kerosene. As a matter of fact, the accused has no motive to commit ghostly incident of this nature. After the marriage, they lived happily for two years. Thereafter, it was continuous harassment of beating her, torturing her and harassing her. At no point of time, he made any attempt to do away with the life of the deceased. Therefore, as there was no immediate motive to commit the murder, the deceased for the reasons best known to her, may be due to harassment, implicated the accused falsely to take vengeance. Therefore, in the absence of any other evidence, the conviction and the sentence recorded by the trial court against the accused for the offence punishable under Section 302 IPC is unsustainable. Therefore, the accused is liable for acquittal of the charge under Section 302 IPC. 23. Coming to the offences under Sections 498-A and 304-B IPC, there is evidence of P.Ws.2, 4, 5 and 12 to the effect that part of dowry amount was not paid. The relatives of the deceased agreed to pay the entire amount and for that reason, the accused was harassing the deceased to bring the remaining dowry. The death of the deceased happened within seven years of her marriage. P.W.2 stated that marriage of the deceased was performed 8 months prior to her death. The death of the deceased occurred otherwise than under normal circumstances because, it is not a natural death. When the deceased was subjected to cruelty for her not bringing the remaining dowry and such cruelty and harassment was seen and before her death, she was subjected to cruelty and harassment, then it can be said to be dowry death. At the time of marriage, P.W.2 agreed to give Rs.30,000/- to the accused and the deceased, but she gave only Rs.20,000/- as dowry at the time of marriage. She was due an amount of Rs.10,000/-. For about two months, they lived happily and thereafter it is alleged that the accused was harassing the deceased to bring the remaining amount of dowry. Therefore, as per the evidence of P.Ws.2, 4, 5 and 12, it can be said that there was harassment by the appellant/accused to the deceased with regard to payment of dowry. 24. Therefore, the prosecution has established its case beyond all reasonable doubt for the offences punishable under Sections 304-B and 498-A IPC. Once the prosecution proved its case beyond all reasonable doubt and once the ingredients of Section 304-B IPC are established, the presumption under Section 113-B of the Act can be drawn. If it is drawn, it is presumed that the appellant/accused committed the offence of dowry death. Of course, it is rebuttable presumption. The appellant/accused can rebut such presumption by producing evidence or eliciting from the prosecution witnesses. But the appellant/accused has not discharged his burden to show that it is not a dowry death. Therefore, we have no hesitation to hold that the trial court correctly found the appellant/accused guilty for the offences punishable under Sections 304-B and 498-A IPC. 25. Accordingly, the conviction and sentence of the appellant/sole accused for the offence punishable under Section 302 IPC made in S.C.No.161 of 1990, dated 11-08-2006 by the III Additional Sessions Judge, Karimnagar are set aside, while confirming the convictions and sentences recorded against the appellant/sole accused for the offences punishable under Sections 304-B and 498-A IPC. The period of detention during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 26. The Criminal Appeal is partly allowed, to the extent indicated above. _________________ A.GOPAL REDDY, J. _____________ K.C.BHANU,J. 22-06-2010 Murthy [1] AIR 1958 SC 22