THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1519 of 2007 Dated : 04.07.2011 Between : P.Ramesh & another …. Appellants-A.1 & A.2 a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1519 of 2007 JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellants-A.1 and A.2 questioning the judgment of conviction passed in Sessions Case No.23 of 2007 by the III Additional Sessions Judge, Karimnagar, on 25.10.2007 wherein A.2 was acquitted under Section 235 (1) Cr.P.C. for the charge under Section 302 of Indian Penal Code (for short ‘IPC’) or the alternative charge under Section 304B IPC, A.1 was convicted under Section 235 (2) Cr.P.C. and sentenced to suffer imprisonment for life and also to pay fine of Rs.500/- for the offence under Section 302 IPC. Further A.1 and A.2 were sentenced to suffer rigorous imprisonment for six months each and to pay fine of Rs.1000/- each in default to suffer simple imprisonment for one month each for the offence under Section 498A IPC. A.1 and A.2 were also sentenced to suffer rigorous imprisonment for six months for each offence under Sections 3 and 4 of Dowry Prohibition Act and also to pay fine of Rs.1000/- each for each offence, in default to suffer simple imprisonment for one month each for each offence. 2) The Prosecution case, in a nutshell, is that the marriage of the deceased P.Rama @ Vasantha was performed with A.1 about six years prior to the incident in the present case. Later, A.1 harassed the deceased for additional dowry and in that regard a panchayath was conducted at Molangur village before the caste elders wherein A.1 and A.2-the father-in-law of the deceased demanded additional dowry of Rs.60,000/-, which was given by the father of the deceased before the mediators. But, A.1 continued his harassment towards the deceased due to which she along with her children went to her parents’ house. About ten days prior to the occurrence, A.1 and A.2 took back the deceased and her children to the matrimonial house. It is further alleged that on 05.03.2006 at 7.00 p.m. A.1 and A.2 harassed the deceased for additional dowry and poured kerosene on her person and set fire by saying if she die, A.1 would marry again and will get more dowry. On hearing the cries of the deceased, neighbour reached the scene and shifted her to MGM hospital, Warangal. On coming to know the incident from L.W.5 Swarna Devi, the father of the deceased rushed to the hospital and on 06.03.2006 at 1400 hours he lodged a complaint before Police, basing on which, a case in Crime No.44 of 2006 for the offence punishable under Sections 498A and 307 of Indian Penal Code and Sections 4 and 6 of Dowry Prohibition Act was registered. While undergoing treatment on 10.03.2006 the deceased succumbed to injuries. Subsequently, the Section of Law was altered to Sections 498A and 302 IPC and Sections 4 and 6 of Dowry Prohibition Act. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge sheet against A.1 and A.2 for the offence punishable under Sections 498A, 302 IPC and Sections 3 and 4 of Dowry Prohibition Act and the said charge sheet was numbered as P.R.C. No.58 of 2006 by the Judicial Magistrate of First Class, Huzurabad. 4) On committal of said P.R.C., the Court of Sessions registered the same as S.C.No.23 of 2007. The learned Sessions Judge examined A.1 and A.2 under Section 228 of the Code of Criminal Procedure and framed charge under Sections 498A, 302 read with 34 IPC or alternative charge under Section 304B IPC and Sections 3 and 4 of Dowry Prohibition Act, in which, the accused denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 13 and marked Exs.P.1 to P.15 apart from marking MO.1. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. On behalf of the accused, no oral and documentary evidence was adduced. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Sessions Judge rendered the impugned judgment as stated above. 6) Heard the learned counsel for the appellants and the learned Public Prosecutor for the State. 7) PWs 1 and 2 are the father and mother of the deceased respectively. P.Ws 3 and 4 are the persons who acted as elder for settlement of the dispute. P.W.5 is the person residing in opposite house of the accused. P.W.6 is the driver of the auto engaged in shifting the deceased to hospital. P.W.7 is the panch witness for inquest. P.W.8 is the witness for scene of offence. P.Ws 9 and 10 are the investigation officers. P.W.11 is the Executive Magistrate, who conducted inquest over the dead body of the deceased. P.W.12 is the Junior Civil Judge, who recorded the dying declaration of the deceased, and P.W.13 is the Professor in Forensic Department of Kakatiya Medical College, Warangal, who deposed regarding the autopsy held over the dead body of the deceased. 8) PWs 1 and 2, the parents of the deceased, in their evidence deposed that the entire occurrence is due to demand of dowry by the accused and there was continuous harassment by the accused. Admittedly, in this case at the time of admitting the deceased in hospital A.1 and A.2 were also present and they accompanied the deceased to hospital. 9) The learned Sessions Judge while convicting the accused also placed reliance on Exs.P.10 and P.14. Ex.P.10 is the statement of the deceased recorded by the investigation officer. Ex.P.14 is the dying declaration recorded by the learned Magistrate (P.W.12) wherein the deceased narrated about the incident. For better adjudication of the matter, relevant portion of Ex.P.14 is hereby extracted: “ … Q.7: What happened to you and how did you receive the injuries to your body? Ans: I was married about 6 years ago. Two children. My husband Ramesh is harassing me due to illegal contacts with one lady (Sujatha). There are disputes between us. Today evening i.e. on 06.03.2006 evening at 7.00 p.m. my husband poured kerosene and set fire with matchstick. Due to unbearable flames I cried on that my father-in-law, husband set off the flames. Q.8: Who is responsible for causing the said injuries? Ans: My husband is having illegal contacts with another lady and he himself poured kerosene and set fire with matchstick. He and she are responsible. …..” 10) It is projected by the prosecution in charge sheet that the entire occurrence was due to harassment by the appellants in connection with demand of dowry. But from a reading of Ex.P.14 dying declaration given by the deceased before the Magistrate it is evident that the quarrel between the deceased and A.1 on the date of incident is in connection with illicit intimacy of A.1 with another lady by name Sujatha. The deceased also stated that for the entire occurrence, her husband and said Sujatha are responsible, which goes to show that the entire allegations are against the husband of the deceased (A.1) and said Sujatha only. Further, it is crystal clear from the said statement of the deceased that the occurrence is not due to any harassment in connection with demand of dowry as projected by the Prosecution. 11) Further more, basing on the dying declaration of the deceased, FIR has been registered and after registration of F.I.R. the investigation officer recorded the statement of the deceased under Ex.P.10. Interestingly, though the dying declaration does not speak about any dowry harassment by the appellants, the statement recorded by the investigation officer after recording the dying declaration projects that there was demand of dowry in connection with purchase of an auto. Further, the investigation officer also implicated the father- in-law of the deceased as an accused (A.2) stating that he also demanded dowry and thereby involved in the commission of the crime. 12) On perusal of the entire record, it is categorically stated by the deceased that her father-in-law i.e. A.2 tried to save her and she has not stated anything against A.2 and more particularly she has given totally a different reason for the occurrence. The evidence of PW.5, who is residing in the opposite house of the accused, is more significant in this case. He deposed that on hearing the hues of the deceased, he went to the house of the accused where the deceased was found with flames and A.1 and A.2 were attempting to put off flames by pouring water. Thereafter, A.2 brought an auto and took the deceased to hospital, which indicates that A.2 tried to save the deceased and there is no evidence to the effect that he also participated in the commission of crime along with A.1. 13) As far as A.1 is concerned, the evidence on record coupled with the contents of dying declaration of the deceased would reveal that the occurrence is due to quarrel between A.1 and deceased in connection with illicit intimacy of A.1 with one Sujatha. Even admitting the entire evidence, the occurrence is only for the said reason, which happened in the spur of moment and the husband of the deceased (A.1) poured kerosene on the deceased and set fire. But, at the same time, it is the evidence adduced by the deceased that her husband tried to save her by pouring water and her husband and father-in-law i.e. A.1 and A.2 accompanied her to the hospital. 14) In such a situation, we are of the view that the Prosecution miserably failed to establish its case against A.2, the father-in-law, for the charges leveled against him. As far as A.1 is concerned, the admissible evidence adduced by the Prosecution proved only an offence under Section 304 part-II IPC but not an offence punishable under Section 302 IPC as held by the learned trial Judge. 15) In the result, the Criminal Appeal is allowed in part. The conviction and sentence imposed on Appellant No.2-A.2 by the learned III Additional Sessions Judge, Karimnagar, in Sessions Case No.23 of 2007 on 25.10.2007 for the offence punishable under Sections 498A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act are hereby set aside and he is acquitted of the said charges. Fine amount paid by A.2, if any, shall be returned to him. Further, the conviction and sentence imposed by the learned Sessions Judge on Appellant No.1-A.1 for the offence punishable under Sections 302 and 498A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act are set aside. However, the appellant No.1-A.1 is convicted for the offence punishable under Section 304 Part-II of Indian Penal Code and he is sentenced to undergo rigorous imprisonment for seven years. The period of detention already undergone by A.1 be given set off under Section 428 Cr.P.C. The fine amount paid by the appellant No.1-A.1 for the offence punishable under Sections 302 and 498A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 4th July, 2011 sur