THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.167 of 2006 BETWEEEN: Shaik Sardar … Appellant AND 1. The State of A.P. & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.167 of 2006 JUDGMENT: The appellant/accused is husband of the deceased Shaheen Begum. He was convicted by the lower Court under Section 304 Part-II I.P.C. and was sentenced to rigorous imprisonment of eight years and fine of Rs.500/-; and was also convicted under Section 498-A I.P.C. and was sentenced to rigorous imprisonment of two years and fine of Rs.300/-. Questioning the same, the accused filed this appeal. 2. Marriage of the deceased with the accused took place in the year 1990. They have four daughters. It is alleged that the accused started harassing the deceased asking her to bring money from her parents. It is further alleged that on 17.04.1998 during morning hours, the accused poured kerosene on the deceased and set fire to her and committed murder of the deceased. Plea of the accused is one of total denial and not guilty. Even though the accused was tried for the offences under Sections 302 and 498-A I.P.C., after trial, the lower Court found him guilty under Sections 304 Part-II and 498-A I.P.C. 3. The lower Court based its conclusions on Ex.P1- Statement of the deceased recorded by PW1, who is a Police Officer and also Ex.P10- Dying declaration of the deceased recorded by PW9/Magistrate, apart from evidence of PWs 2 to 4, who are parents and neighbour of the deceased. The lower Court did not place reliance on evidence of DWs 1 and 2 who are daughter and another neighbour of the accused. In the grounds of appeal, it is contended for the appellant that there is no direct evidence against the accused and that evidence of the parents/PWs 2 and 3 is not sustainable and that the lower Court should have rejected the prosecution case. 4. The deceased with burning injuries was admitted in Osmania General Hospital, Hyderabad. PW1 who was the then Sub-Inspector of Police, Bahadurpura Police Station, after receiving telephonic message about her admission, rushed to the hospital, after making entry in general diary of the Police Station. In the hospital, PW1 recorded Ex.P1 statement of the injured/deceased. He says that after recording statement, he read over contents of the same to her who accepted the same to be true and correct. PW1 registered Ex.P1 as case and issued Ex.P7- First Information Report for offences under Sections 307 and 498-A I.P.C. 5. PW9 was the then XIII Metropolitan Magistrate, Hyderabad. He received Ex.P9- Requisition from Bahadurpura Police Station for recording dying declaration of Shaheen Begum at 11:15 A.M. and went to acute medical ward of the said hospital by 11:45 A.M. He recorded Ex.P10- Dying declaration of Shaheen Begum in the hospital. He obtained endorsement of the Duty Doctor to the effect that the patient was conscious and coherent and was having fit state of mind to make her statement. He says that after hearing answers of the patient for his preliminary questions, he was satisfied that the patient was conscious and coherent and was in fit state of mind to give statement. It is only thereupon, PW9 recorded Ex.P10- Dying declaration of the patient Shaheen Begum. 6. In Ex.P1, the deceased stated that since the time of marriage, her husband was harassing her and that on that day at about 5:30 hours, her husband picked up quarrel with her on petty matter with an intention to beat her and poured kerosene oil on her body in the kitchen room and set fire to her with an intention to kill her, as a result of which, she received severe burn injuries all over her body. It is further stated in Ex.P1 that she fell down on ground after sustaining burn injuries and that her husband went into bathroom to take bath and that after some time, he came out and covered bed sheet on her body and that on receipt of information, her parents rushed to her and shifted her to Osmania General Hospital. Parents of the deceased are residents of the same locality in which the accused and the deceased were residing. In Ex.P10- Dying declaration recorded by the Magistrate, the deceased stated that in the night, her husband beat her mercilessly and later tortured her both mentally and physically and that he asked her to heat milk and she refused to heat milk and thereupon, the accused came to her speedily to beat her and that out of fear, she proceeded towards kitchen for heating milk on stove and that at that moment, the accused lifted gas oil can immediately and poured gas oil on her body and took a match stick from match box and set fire to her. She continued to say that thereafter, the accused went into bathroom for bathing and that when she was screaming loudly as ‘mummy, mummy’ due to unbearable pain, on hearing the screams, the accused came out of bathroom and wrapped her body in a blanket hurriedly and took her in auto to Bahadurpura Police Station and that subsequently, her parents brought her and admitted her in hospital. It is further complained in Ex.P10 by the deceased that her husband frequently harassed and tortured her mentally and physically and that he was asking her account for even Rs.10/- given by him for more than ten times and that if any food items are exhausted, the accused used to ask her in angry voice number of times whether it was due to handiwork of members of her mother’s house, who might have come there and ate food items and that the accused harassed her daily. The defence counsel in the lower Court could not elicit anything contra in cross-examination of PWs 1 and 9. 7. From Exs.P1 and P10- Dying declarations of the deceased which are consistent in nature, it is a case of homicide of the deceased committed by the accused. The accused examined his daughter as DW1 and one of the neighbours as DW2. DW2 was not an eye witness to the occurrence. She claims that after hearing cries of the deceased in full flames, she brought a blanket and covered her body to extinguish flame. She is stated to have enquired as to what happened from DW1 and came to know that the accused was not in the house. She says that the deceased was not in speaking condition and was unconscious. DW1 was aged seven years by the date of offence. It is her evidence that she brought milk at about 5:30 A.M. and handed over milk to her mother and that she was brushing teeth at a side and that after keeping milk vessel on the stove, her mother poured kerosene and set fire to herself. She says that when her mother raised cries, she also raised cries and called neighbours. According to DW1, the accused was not present in the house at that time. She says that in the hospital, her grandfather instigated her mother to speak as if the accused poured kerosene and set fire to her and that accordingly, the deceased stated to the officers in that manner. In cross- examination, DW1 admits that she has been residing with her paternal aunt. Evidence of DW1 was recorded about seven years after the incident. She had influence of the paternal side as she has been residing with her paternal aunt. In the circumstances, the lower Court rightly came to the conclusion that evidence of DW1 was motivated by the accused party. I do not find any circumstances to disbelieve version of the deceased contained in Exs.P1 and P10. 8. It is evidence of PWs 2 and 3 also to the effect that when they enquired the deceased, the deceased informed them that the accused poured kerosene on herself and set fire to her. It is evidence of PWs 2 to 4 that the accused had always harassed the deceased. Though previously case in Crime No.90 of 1991 of Kulsumpura Police Station was registered against the accused for offences under Sections 498-A, 324, 341, 406 I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, after the parties compromised the dispute, the proceedings were dropped by the Police. In Exs.P1 and P10, though it is version of the deceased that the accused was harassing her both mentally and physically, she did not state that the said harassment was for the sake of any additional dowry or money or presents from her parents. Therefore, evidence of PWs 2 and 3 about the alleged demand of the accused for the sake of additional dowry, should not have been accepted by the lower Court. Since it is a case of homicide and not suicide, Clause-(a) of Explanation to Section 498-A I.P.C. has no application herein. Similarly, as there are no allegations for demand of additional dowry etc., Clause- (b) thereof is also not applicable herein. The lower Court should not have found the accused guilty under Section 498-A I.P.C. The accused would be liable under Section 498-A I.P.C. in case DW1’s evidence of suicide by the deceased is accepted. 9. At the same time, the lower Court having placed reliance on Exs.P1 and P10- Dying declarations recorded by PWs 1 and 9 respectively and evidence of PWs 2 and 3 on this aspect, strangely came to the conclusion that the facts lead to the conclusion under Section 304 Part-II I.P.C. and not 302 I.P.C. The State did not choose to prefer any appeal in this regard. There are no circumstances in favour of the accused to show that it is not a case of homicide. Ex.P6-post mortem certificate issued by the Doctor/PW7 shows that the deceased was having 95% burns on her body and that the deceased died of the said burns. Evidence on record shows that after setting fire to his wife and when the deceased was raising hue and cry, the accused coolly went into bathroom and leisurely came back and wrapped the deceased in a blanket. This behaviour of the accused is some what cruel in nature. There are also no circumstances to be lenient towards the accused in awarding the sentence than the sentence imposed by the lower Court. 10. In the result, the Criminal Appeal is partly dismissed with regard to offence under Section 304 Part-II I.P.C.; and the Criminal Appeal is partly allowed setting aside the conviction and the sentence passed by the lower Court on the accused/appellant under Section 498-A I.P.C. ​_______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dated:14.11.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.167 of 2006 DATED: 14.11.2011 ysk