THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1074 of 2006 Date:27th October, 2010. Between: Shaik Abdul Raheem S/o.Shaik Moula Saheb ….Appellant/A1 And State rep. by its Public Prosecutor, High Court of A.P., Hyderabad. ….Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1074 of 2006 JUDGMENT: This Criminal Appeal is directed against the judgment dated 14.08.2006 passed in Sessions Case No.185 of 2004 on the file of VI Additional Sessions Judge (Fast Track Court), Narsapur, West Godavari District, whereby and whereunder the learned Additional Sessions Judge convicted A1 Shaik Abdul Raheem for the offence under Section 498-A IPC and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month. 2. A1 Shaik Abdul Raheem, A2 Shaik Babji Saheb and A3 Shaik Hussenbee were tried for the offences under Sections 304-B and 498-A IPC. 3. The prosecution case, in brief, is: PW.1 Shaik Musthapha and PW.2 Shaik Nannibibi are husband and wife. PW.4 Shaik Hussain Beebi, PW.5 Shaik Asha Begum and Shaik Shaina Begum @ Sunni Begum are their children. Smt.Sunni Begum was married to A1 Shaik Abdul Raheem on 26.04.2001. Their marriage was officiated by PW.16 Mohammad Akthar Quasmi. Ex.P2 is the copy of the marriage certificate issued by him. At the time of marriage, PW.1 Shaik Musthapha and PW.2 Shaik Nannibibi gave cash of Rs.1,10,000/- to A1 Shaik Abdul Raheem and gifted 90 cents of wet land to Smt.Sunni Begum. A2 Shaik Babji Saheb and A3 Shaik Hussenbee are parents of A1 Shaik Abdul Raheem. Smt. Sunni Begum joined with A1 Shaik Abdul Raheem for marital life. She brought Sare Saman worth of Rs.50,000/- from her parental home at the time of her joining with A1 Shaik Abdul Raheem for martial life. A1 Shaik Abdul Raheem insisted Smt.Sunni Begum to sell the land gifted by her parents at the time of marriage and harassed her on that score. A2 Shaik Babji Saheb and A3 Shaik Hussenbee joined with A1 Shaik Abdul Raheem in insisting her to sell the land gifted by her parents at the time of marriage. Smt.Sunni Begum informed her parents about the demand of the accused and consequential harassments. Some mediation took place, wherein A1 Shaik Abdul Raheem assured the parents of Smt.Sunni Begum that he would treat her properly. On 26.06.2003 at about 6.00 P.M. Smt. Sunni Begum being not able to put up the harassment, set fire to herself and received burn injuries. A1 Shaik Abdul Raheem shifted her to Government Community Health Centre, Palcol, for treatment. PW.1 Shaik Musthapha received information at about 6.30 P.M. and rushed to the hospital and found Smt.Sunni Begum with burn injuries on her person. PW.14 Dr.V.Nalini, CAS, Govt. Community Health Centre, Palcol, sent Ex.P8 hospital intimation to the Station House Officer, Palcol Town Police Station. PW.13 A.Chakradhara Rao, ASI, received Ex.P8 hospital intimation, rushed to the Government Community Health Centre and recorded the statement of Smt.Sunni Begum, which has been exhibited as Ex.P9. PW.14 Dr.V.Nalini, endorsed on Ex.P9 statement about the state of mind of Smt.Sunni Begum while her statement being recorded by PW.13 A.Chakradhara Rao. Ex.P10 is the case sheet maintained by the Government Community Health Centre, Palcol, in respect of Smt.Sunni Begum. PW.13 A.Chakradhara Rao, ASI, sent Ex.P8 hospital intimation and Ex.P9 statement of Smt.Sunni Begum to the Station House Officer, Mogalturu P.S. on the point of jurisdiction. PW.17 M.J.V.Bhaskara Rao, S.I. of Police, Mogalturu P.S., received Ex.P8 hospital intimation and Ex.P9 statement of Smt.Sunni Begum and registered a case in Crime No.104 of 2003 for the offence under Section 498-A IPC and issued Ex.P14 FIR. He examined PW.1 Shaik Musthapha and PW.2 Shaik Nannibibi and recorded their statements under Section 161 Cr.P.C. He recorded the statement of Smt.Sunni Begum. Ex.P17 is the statement of Smt.Sunni Begum recorded by him. He inspected the scene of offence in the presence of PW.10 Elamachili Veereswara Sarma and PW.11 Kasani Kumar Nehru and prepared Ex.P4 observation report. While observing the scene of offence, he effected seizure of MO.1 Kerosene Plastic Tin. PW.19 Sri R.J.Viswanadham, the then Judicial Magistrate of First Class, Palcol received Ex.P19 hospital intimation on 26.026.06.2003 at 10.15 P.M. to record the dying declaration of Smt.Sunni Begum. He recorded the dying declaration of Smt.Sunni Begum, after satisfying himself about the fit state of mind of Smt.Sunni Begum and on obtaining the certificate from the duty doctor (PW.14). Ex.P20 is the statement of Smt.Sunni Begum recorded by him. PW.14 Dr.V.Nalini referred Smt.Sunni Begum to the Government Headquarters Hospital for better treatment. But, PW.1 Shaik Musthapha admitted Smt.Sunni Begum in a private nursing home viz., Sanjeevini Emergency Hospital, Palcol. While undergoing treatment, Smt.Sunni begum succumbed to the burn injuries on 15.07.2003 at about 8.30 A.M. On receipt of death intimation, PW.17 M.J.V. Bhaskara Rao, SI of Police, Mogalturu P.S., altered the FIR. PW.18 Sri V.Satyanarayana, the then MRO, Mogalturu, conducted inquest on the deadbody of Smt.Sunni Begum (hereinafter referred to as ‘the deceased’) in the presence of PW.10 Elamanchili Veereswara Sarma and PW.12 Shaik Allah Mohammad. Ex.P5 is the inquest report. After the inquest, deadbody of the deceased was subjected to postmortem examination. PW.9 Dr.G.Prabhakara Rao, CAS, Govt. Community Health Centre, Palcol, conducted autopsy on the deadbody of the deceased on 15.07.2003 and issued Ex.P3 postmortem certificate, opining that the deceased died of septic shock due to extensive burns about 24 to 30 hours prior to postmortem examination. After completing the investigation, PW.20 K.V.Babji, Sub-Divisional Police Officer, Narsapur, laid charge-sheet before the Additional Judicial Magistrate of First Class, Narsapur. 4. The learned Magistrate took the charge-sheet on file as P.R.C.No.7 of 2004 and committed the case to the Sessions Division, West Godavari District at Eluru, as the offence under Section 304-B IPC is exclusively triable by the Court of Session. The learned Sessions Judge took the case on file as Sessions Case No.185 of 2004 and made over the same to VI Additional Sessions Judge (Fast Track Court), Narsapur, for trial. 5. The learned VI Sessions Judge (Fast Track Court), Narsapur, on hearing the prosecution and the accused, framed charges under Sections 304-B and 498-A IPC against the accused. Read over and explained the charges to the accused, for which they pleaded not guilty and claimed to be tried. 6. To bring home the guilt of the accused with which they stood charged, prosecution examined 20 witnesses as PWs.1 to 20 and exhibited 21 documents as Exs.P1 to P21 and marked one material object as MO.1. The plea of the accused is that the deceased caught fire at her parental home and that A1 Shaik Abdul Raheem divorced her on 25.03.2003 and that her parents shifted her to Government Community Health Centre, Palcol. On their behalf, they marked three documents, as Exs.D1 to D3. 7. The learned VI Additional Sessions Judge, on considering the evidence brought on record and on hearing the prosecution and the accused, came to the conclusion that the prosecution failed to make out the charge against A1 Shaik Abdul Raheem, A2 Shaik Babji Saheb and A3 Shaik Hussenbee for the offence under Section 304-B IPC and so also charge under Section 498-A IPC against A2 Shaik Babji Saheb and A3 Shaik Hussenbee and accordingly, acquitted them. However, the learned Additional Sessions Judge, found that the prosecution is able to bring home the guilt of A1 Shaik Abdul Raheem for the offence under Section 498-A IPC and accordingly, convicted him and sentenced him to suffer Rigorous Imprisonment for three years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month, by judgment dated 14.08.2006. Hence, this Criminal Appeal by the appellant/A1 Shaik Abdul Raheem, challenging his conviction and sentence for the offence under Section 498-A IPC. 8. Heard Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant/A1 and learned Additional Public Prosecutor appearing for the respondent/State. 9. Learned senior counsel appearing for the appellant/A1 submits that the trial Court recorded the conviction of the appellant/A1 for the offence under Section 498-A IPC mainly relying on the statements of the deceased recorded by PWs.13, 17 and 19 and ocular evidence of PW.1 and PW.2 and that once a charge under Section 304-B IPC had been found to be not established, the statements of the deceased cannot be made use of for sustaining a conviction under Section 498-A IPC. A further submission has been made that ocular evidence of PW.1 and PW.2 cannot be relied upon, since what all they stated before the Court is an improvement over their statements recorded under Section 161 Cr.P.C. and in which case, their evidence is liable to the eschewed. In a nutshell, the contention of the learned senior counsel is that the trial Court recorded the conviction of the appellant/A1 for the offence under Section 498-A IPC without there being any legal evidence and in which case, the conviction and sentence of the appellant/A1 for the offence under Section 498-A IPC is liable to be set aside. The learned senior counsel refers the relevant portion of the judgment in support of his contention that the trial Court relied upon the evidence of PW.1 and PW.2, which is in admissible to sustain a charge under Section 498-A IPC. Relevant portion of the judgment of the trial Court, on which reliance has been placed by the learned senior counsel, reads as hereunder: “I have discussed supra on more than one occasion evidence from the side of prosecution witnesses is consistent, convincing and most reliable that A1 harassed his deceased wife and subjected her to cruelty to sell her land to meet his unlawful demand. The dying declarations recorded by PWs.13, 17 and 19 support the oral evidence that deceased was harassed by A.1 only to coerce her to meet his unlawful demand. Thus, A1 subjected the deceased to cruelty strongly established the guilt of A.1 beyond all reasonable doubts for offence punishable under Section 498-A IPC.” Learned senior counsel to buttress his submission that the statement of the deceased cannot be relied to sustain a charge under Section 498-A IPC, placed reliance on the Judgments of the Supreme Court in 1) Yudhishtir v. The State of M.P.[1]; 2) Inderpal v. State of M.P.[2]; 3) Gananath Pattnaik v. State of Orissa[3]; 4) Bhairon Singh v. State of M.P.[4] and the decisions of this Court in G.M.Ravi @ G.Purushotham v. State of A.P.[5] and Sangannagari Narasimulu v. State of A.P.[6]. 10. I n Bhairon Singh’s case (4 supra), a question came up for consideration as to whether the oral evidence of witnesses about what the deceased had told them against the accused about the treatment meted out to her is admissible under Section 32(1) of the Evidence Act to sustain conviction under Section 498-A IPC? The Supreme Court answered the question that the statements of the deceased cannot be made use to sustain a conviction under Section 498-A IPC, since for an offence under Section 498-A IPC simpliciter, the question of death is not and cannot be an issue for consideration. Paras.10 and 11 of the cited judgment need to be noted and they are thus: “10. The only evidence to bring home charge under section 498- A, IPC, is that of PW-4 and PW-5. In their deposition PW-4 and PW-5 stated that their sister told them that accused was torturing her as he wanted that her brothers arrange a job for him or the house at Ganj Basoda is given to him or a cash of Rs. 1 lac is given to enable him to do some business. They deposed that as and when their sister come to their house, she would tell them that accused used to insert cloth in her mouth and give beatings for dowry. The trial court as well as the High Court relied on the evidence of PW-4 and PW-5 and held that charge under Section 498-A, IPC, against the accused was proved. Apart from the statement attributed to the deceased, none of the witnesses had spoken anything which they had seen directly insofar as torture and harassment to Ranjana Rani @ Raj kumari was concerned. 11. The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani @ Raj kumari to cruelty as contemplated under Section 498-A, IPC. In our considered view, the evidence of PW-4 and PW-5 about what the deceased Ranjana Rani @ Raj Kumari had told them against the accused about the torture and harassment is inadmissible under Section 32 (1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32 (1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence. The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of PW- 4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32 (1) of the Evidence Act does not get attracted.” 11. A Division Bench of this Court in G.M.Ravi @ Purushotham’s case (5 supra), held that the statement of the witnesses that deceased told them regarding the harassment meted out to her by her husband did not come under the purview of Section 32 of the Evidence Act. Hence, they are not admissible in evidence. 12. Learned Additional Public Prosecutor submits that the statement of the deceased recorded by Pw.19 R.J.Viswanadham, Judicial First Class Magistrate and the statement of the deceased recorded by Pw-13 A.Chakradharrao amply establish that the appellant/A-1 demanded additional dowry, attributed illicit intimacy with someone in the bazaar and harassed her on that score and that itself is sufficient to satisfy the ingredients of Section 498-A IPC and in which case, conviction the appellant for the offence under Section 498-A IPC recorded by the trial Court does not warrant interference in this criminal appeal. Learned Additional Public Prosecutor refers Ex.P-17 statement of the deceased and also Ex.P-20 dying declaration of the deceased in support of his contention. 13. Keeping in view the proposition of law laid down in the above-referred cases, let me examine whether there is any evidence to sustain the conviction and sentence of A1 Shaik Abdul Raheem for the offence under Section 498-A IPC. 14. In view of the judgment of the Division Bench of this Court in G.M.Ravi @ Purushotham’s case (5 supra), the statements of the deceased, which have been exhibited as Ex.P-9, Exs.P.17 and P.20 do not come under the purview of Section 32 of the Evidence Act since the trial Court recorded acquittal of the accused for the offence under Section 304-B IPC. 15. PW-1 is the father, PW-2 is the mother and PWs.4 and 5 are the sisters of the deceased. PW-3 belongs to the village of PWs.1 and 2 and he claims to be present at the time of marriage of the deceased with appellant/A-1. PW-6 is brother-in-law of PW-1, PW-7 is the brother of PW-1 and they are the witnesses to speak of harassments meted out by the deceased in the hands of the appellant/A-1. 16. PW-1 states in the chief-examination that once he went to the house of appellant/A-1, appellant/A-1 beat the deceased in the presence of him and his wife. In the cross-examination he admits of his omission before Police with regard to appellant/A-1 giving blows on the deceased in his presence. For better appreciation, I may refer the cross-examination of PW-1 in his words: “I do not state before police that A-1 kicked my daughter in the presence of me and my wife on one occasion when we went to his house.” 17. PW-2 states in the chief-examination that the appellant/ A-1 beat the deceased in her presence. But the Investigating Officer states in the cross-examination that PW-2 omit to state before him her witnessing appellant/A-1 giving blows on the deceased. For better appreciation, I may refer the relevant portion of the cross- examination of Investigating Officer, who has been examined as PW- 17: “PW-2 did not state before me that at times she also gave money to deceased. PW-2 did not state before me that no one occasion A-1 beat deceased in the presence of her and her husband. PW-2 did not state before me that deceased told her in the hospital about the warning given by A-1 that either deceased should commit suicide or else he would commit suicide if not land is sold and further he beat her.” 18. It is also tried to note that PW-17 admits in the cross- examination with regard to omission of PW-1 as to his giving sare samans worth Rs.50,000/- to the deceased. For better appreciation, I may refer the cross-examination of PW-17 in his words: “PW-1 did not state before me that sare worth Rs.50,000/- was given to the deceased. PW-1 did not state before me he gave 15 sovereigns of gold to the deceased. PW-1 did not state before me that on one occasion A-1 beat the deceased when himself and his wife went to the house of Accused. PW-1 did not state before me that police came to the hospital at 9.30 A.M. and recorded the statement of deceased and so also PW-1 did not state before me that Judicial Magistrate came to the hospital and recorded the statement of deceased. PW-1 did not state before me that deceased told him Accused (A-1) gave warning that she should die after his return to the house from the Bazar or he would commit suicide. PW-1 did not state before me that deceased told him A-1 refused to send her to see her eldest sister.” 19. PW-3 states in the chief-examination that he called PW-1 and told him that A-1 promised that he would not repeat to sell the land of deceased. According to PW-3, the appellant/A-1 promised him that he would treat the deceased properly and he would not demand the deceased to sell the land. PW-3 admits in the cross-examination that he omit to state before Police regarding the appellant/A-1 approaching him and requesting him to intervene and so also assurance made by the appellant/A-1. For better appreciation I may refer the cross-examination of PW-3 in his words: “I did not state before Police that A-1 approached me and requested me to intervene on the assurance that he would never subject the deceased to harassment to sell her land. I did not state before police that I talked to deceased at her house in Mogalthuru on 26.6.2003 and that deceased told me the demand of A-1 to sell her land and refusing to send her to Palakol in connection with function of the birth of the child by her eldest sister.” 20. PW-4 states in her chief-examination that on two or three occasions at the instigation of A-2 and A-3, A-1 beat the deceased and demanded her to sell her land. She further stated in her chief- examination that on 13-05-2003 the deceased came to Palakol and complained against appellant/ A-1. PW-20 K.V. Babji states in his cross-examination that PW-2 omitted to state before him with regard to the incident said to have been taken place on 13-05-2003. For better appreciation I may refer the cross-examination of PW-20 in his words: “PW-4 did not state before me that on the first occasion when the accused beat the deceased her father went and brought the deceased to the house. PW-4 did not state before me on 13-05-2003 the deceased told her at Palakol she was seriously assaulted by A-1 and that she feared to go to the house of accused.” 21. PW-5 states in the chief-examination that she over heard the deceased informing her mother that the accused were harassing her to sell the land standing in her name. She does not claim that the deceased informed the harassments meted out by her in the hands of appellant/A-1 to her. What all stated by PW-5 is only hearsay evidence and therefore, it needs no credence. 22. PW-6 states in chief-examination that the deceased told him on enquiry that A-1 refused to send her to Palakol to attend the function though she requested him to give permission. In the cross- examination, he admits of his not stating before the Police with regard to the statement made to him by the deceased. For better appreciation, I may refer the cross-examination of PW-6 in his words: “I did not state before police when I enquired the deceased at the house of PW-1, she told the accused were harassing her to sell her land and bring cash. I did not state before police that I was told by PW-1 that the deceased was sent to the house of accused on intervention of the elders.” 23. PW-7 states in the chief-examination that the appellant/ A-1 gave assurance that he would not harass the deceased to sell her land and promise to look after her. In cross-examination, he admits of his omitting to state before Police that appellant/A-1 tortured the deceased to sell her land and that what all stated by the above- referred witnesses with regard to the appellant/A-1 harassing the deceased on the ground of additional dowry is an improvement over their pre-police statement. This improvement is being on a vital aspect and the same is liable to be excluded from consideration. When once the evidence of above referred witnesses with regard to harassment is excluded, there is no evidence to bring home the guilt of appellant/A-1 for the offence under Section 498-A of the Indian Penal Code. 24. Accordingly, the conviction of the appellant/A-1 for the offence under Section 498-A of the Indian Penal Code cannot be sustained. 25. In the result, this Criminal Appeal is allowed setting aside the conviction and sentence of appellant/A-1 for the offence under Section 498-A of the Indian Penal Code and he is acquitted of the same. Bail bonds furnished by him shall stand cancelled. Fine amount paid, if any, shall be repaid to the appellant/A-1. ________________________ B. SESHASAYANA REDDY, J October 27, 2010. Cs/Pn THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1074 of 2006 October 27, 2010. [1] 1971 (3) Supreme Court Cases 436 [2] (2001) 10 Supreme Court Cases 736 [3] (2002) 2 Supreme Court Cases 619 [4] AIR 2009 S.C. 2603 [5] 2004 Crl.L.J. 1861 [6] 2006 (1) Acquittal 29