THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1411 of 2007 Dated : 23.06.2011 Between : G.Basheer Ahmed …. Appellant-accused 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.1411 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 appellant- accused questioning the judgment of conviction passed in Sessions Case No.553 of 1996 by the VI Additional Sessions Judge, Anantapur at Gooty, on 21.09.2007 wherein the appellant was convicted under Section 235 (2) Cr.P.C. and sentenced to suffer life imprisonment and also to pay fine of Rs.200/-, in default to suffer simple imprisonment for one month, for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’) and was further sentenced to suffer rigorous imprisonment for two years for the offence punishable under Section 498A IPC. 2) The case of the Prosecution, in brief, is that the marriage of the deceased Smt.Khurshid was performed with the appellant-A.1 on 14.11.1990. At the time of marriage, A.1 and his mother i.e. A.2 were given cash of Rs.15000/- towards dowry besides 13 tulas of gold ornaments being presented to the deceased. After sometime, accused started harassing the deceased to handover her jewellery, which was given to her parents for safe custody. When the deceased refused to do so apprehending that the accused would utilize the same for their personal benefit, accused bore grudge against her. A panchayath was also conducted in that regard wherein the elders advised A.1 to put up a separate family with his wife away from A.2. The father of the deceased secured employment to A.1 in a Stone Polishing Factory at Nandalapadu to which place subsequently A.1 shifted his residence along with his wife. There also, A.1 again started harassing the deceased to hand over the jewellery. The father of the deceased gave two tulas of gold to the accused to enable him to do business. A.1 squandered the amount. While so, on 26.02.1992 deceased went to Proddutur to attend a function in which she wear the gold jewellery and again returned the same to her father, due to which A.1 became angry against the deceased. Keeping the same in mind, on 27.02.1992 A.1 poured kerosene on the deceased and set her on fire. In the mean time, the brother and father of the deceased rushed to the spot, took the deceased to Government Hospital, Tadipatri. On 11.03.1992, she succumbed to burn injuries. Basing on the statement of the deceased, Police registered a case in Crime No.49 of 1992. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge sheet against A.1 and A.2 alleging that A.2 abetted A.1 in harassing the deceased and thereby A.1 committed the offence punishable under Sections 498A, 304B and 302 IPC and A.2 committed the offence punishable under Sections 498A, 304B, 302 read with 109 IPC and the said charge sheet was numbered as P.R.C. No.24 of 1992 by the Judicial Magistrate of First Class, Tadipatri. 4) On committal of said P.R.C., the Court of Sessions registered the same as S.C.No.123/1993 and thereafter case against the present appellant i.e. A.1 was split up due to pendency of non-bailable warrant and was allotted present S.C.No.553 of 1996. 5) On production of A.1 on execution of non-bailable warrant, case against him was proceeded and the learned Sessions Judge examined him under Section 228 of the Code of Criminal Procedure and framed charge under Sections 498A, 304-B and 302 IPC, in which, the accused denied the charges and claimed for trial. 6) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 6 and marked Exs.P.1 to P.15 apart from marking MOs 1 to 4. After closure of Prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied the incriminating evidence put to him available in the evidence of Prosecution witnesses. Accused did not choose to adduce any oral and documentary evidence on his behalf. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Sessions Judge rendered the impugned judgment acquitting A.1 for the offence punishable under Section 304B IPC and convicting for the offence punishable under Sections 498A and 302 IPC as stated above. 7) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 8) P.W.1, the brother of the deceased, deposed that A.1 married the deceased in November, 1990. At the time of marriage, Rs.15,000/- of cash and 13 tulas of gold were given as dowry to the accused and they lived at Muddanur for about 4 months. A.1 was demanding money and gold from the deceased and used to beat her. According to this witness panchayat was also held. Later, A.1 and deceased shifted to Tadipatri and they secured employment to A.1 in a Stone Polishing Factory at Tadipatri and A.1 worked there for about 4 or 5 months. Later, he stopped working there and again started demanding money and gold from deceased. P.W.1 further stated that on 27.02.1992 he went to the house of A.1 to invite them for lunch at about 9.00 a.m. and found the main door closed and bolted from inside. When he knocked the door, it was not opened, but he heard the cries of his sister. He saw the beating of A.1 through the hole of the door demanding the deceased for money. Then, he returned back to his house and informed the same to his parents. The said witness again went back to the house of A.1 and found the door open. He entered into the house and noticed that the deceased was burnt. When he questioned the same, A.1 did not give proper reply and on his enquiry, the deceased informed him that A.1 poured kerosene on her and lit fire for not bringing money and gold. Then, he brought a rickshaw and took the deceased to Govt. Hospital, Tadipatri. Fourteen days thereafter, the deceased died. 9) P.W.2 Abdul Majid, who acted as mediator to the panchayat, was declared hostile by the Prosecution and his statement to Police under Section 161 Cr.P.C. is marked as Ex.P.1. P.W.3 is the mediator for inquest held over the dead body of the deceased and his signature on inquest is marked as Ex.P.2. According to him, the deceased died due to burns sustained by her. 10) P.W.4 is the then Mandal Revenue Officer, who recorded the dying declaration of the deceased. He deposed that on 27.02.1992 on receiving intimation from Police he went to hospital at about 12 noon, recorded the dying declaration of the deceased Kurshid under Ex.P.3. After the death of the deceased, P.W.4 also held inquest over the dead body and Ex.P.4 is the inquest report. During the course of inquest, he recorded the statements of K.Khaja Moddin and S.Jharabee under Exs.P.5 and P.6. 11) P.W.5 is the doctor who sent intimation under Ex.P.7 to the Police about admission of the deceased Khursheed on 27.02.1992 at about 10.15 a.m. into the hospital with burns. According to him, on the same day Police visited hospital and recorded the statement of the deceased wherein he made endorsement under Ex.P.8 to the effect that the deceased was conscious while recording the statement. Further, the endorsement of the said witness in the dying declaration recorded by the I/c.M.R.O., Tadipatri, about the condition of patient at the time of recording Ex.P.3 is marked as Ex.P.9. Ex.P.10 is the death intimation sent by P.W.5 to the SHO, Town PS Tadipatri, intimating the death of the deceased. Ex.P.11 is the post-mortem certificate. 12) P.W.6 the then S.I. of Police, Tadipatri, deposed that on receiving medical intimation from Govt. Hospital, Tadipatri, he visited the hospital, recorded the statement of the deceased, got endorsement from the Medical Officer that she is in fit condition to give statement, returned to Police Station, registered case in crime No.49 of 1992, examined LWs 1 to 5 and recorded their statements, visited scene of offence, prepared rough sketch of the scene under Ex.P.13, prepared observation Mahazar under Ex.P.14, seized material objects under cover of proceedings, after receiving death intimation of the deceased issued altered F.I.R. under Ex.P.15, sent requisition to the MRO for conducting inquest over the dead body of the deceased, examined other witnesses and recorded their statements and arrested the accused on 19.03.1992. After completion of entire investigation, he filed charge sheet. 13) The evidence of P.W.1 before the Court is that he visited the house of A.1 and deceased. On the fateful day on hearing the noise from inside the house, he saw into the house through a hole in the main door and witnessed that the accused and deceased were quarrelling with each other and P.W.1 also informed the same to his parents and his parents asked him to go back to the house of A.1 by cycle and they followed in a rickshaw. P.W.1 also stated that he took the deceased to the hospital and A.1 also came to the hospital and disappeared subsequently. But, in the cross examination, he stated that he is not aware as to who admitted his sister in the hospital and also stated that he has not informed the Police at the time of investigation regarding the fact that he witnessed the quarrel between the deceased and the accused. He also admits that he has not informed the same to the neighbours. 14) The above-elicited evidence of P.W.1 is in total contradiction with Ex.P.6, the statement of the mother of the deceased, in which she has categorically stated that while they reached the house of the deceased, the deceased was not there and she was already taken to the hospital. The said evidence of P.W.1 is not cogent in nature and also suffered with infirmities and he improved his version on material aspects and he cannot be termed as an eye-witness either to the incident or to the subsequent events. 15) Further, P.W.1 also stated that a panchayath was held by P.W.2. But, P.W.2 turned hostile and he stated that the said panchayath was in connection with the partition of properties among the appellant-accused family. P.W.3 is the witness who was present at the time of inquest. 16) The evidence of P.W.4 has more importance in the present case. P.W.4 is the then Mandal Revenue Officer who recorded the dying declaration of the deceased Kursheed, which is marked as Ex.P.3, and the same was recorded by him on 27.02.1992. In the cross examination, the said witness has stated that he attended the Government hospital on oral requisition by the police and no written requisition was given by the Police. Even though Ex.P.3 claims to be recorded on 27.02.1992, the same was signed by the witness on 11.03.1992 i.e. the date on which the injured was succumbed to injuries. Further, he has also stated that the attestors of Ex.P.3 were not present at the time of recording the declaration and he called the attestors from outside and obtained signatures in Ex.P.3. The signatures in Ex.P.3 and the manner in which it was recorded clearly indicate that the same was not recorded as projected by the prosecution on the date of occurrence. 17) The statement of the deceased before the Police marked as Ex.P.10-A is recorded by the Police on the same day i.e. on 27.02.1992. The investigation officer stated that on the basis of the statement of the deceased, he registered F.I.R. On perusal of the said document i.e. F.I.R., it is evident that the investigation officer falsely deposed that the FIR is registered on the basis of the statement given by the deceased. In normal course, the police will register the F.I.R. on the basis of any document and the same will also found place in the said F.I.R., but the close scrutiny of the F.I.R. in the present case disclose that the same is registered on the basis of intimation received from the hospital on 27.02.1992 at 11.15 a.m. In the said first information report, in column ‘F.I.R. contents’ it is mentioned that ‘On 27.02.1997 at 11.15 a.m. while I was in the P.S. I received Medical intimation from the M.O. Govt. Hospital. The contents of the Medical intimation runs as follows’. In the said intimation nothing is there to suggest regarding any offence committed by appellant herein whereas in the accused column in F.I.R. the name of the accused is recorded by the investigation officer, which clearly indicates that after full deliberations, the investigation officer impleaded the appellant as accused in this case. 18) Further, it should be noted that the accused also accompanied the injured to the hospital. The evidence of P.W.5 also confirms that the intimation was sent at 10.50 a.m. and the statement of the injured was recorded only after 11.30 a.m. and also he is not in a position to inform as to who scribed Ex.P.3. The signature of P.W.5 in Ex.P.3 also does not contain the date, which creates a doubt about the case of the prosecution. Even in the statement recorded from the deceased, she has stated that her husband accompanied her to the hospital. Since the entire case of the prosecution is only on the basis of Ex.P.3, the dying declaration, and when recording of the said dying declaration itself creates a doubt in the mind of this Court, the same should be corroborated by some other evidence. But, in the absence of any corroboration to such dying declaration, it is highly unsafe to convict the accused by merely placing reliance on Ex.P.3, the dying declaration, that too for an offence punishable under Section 302 IPC, which is punishable either with death penalty or life imprisonment. In view of the above discussion, this Court is of the view that the conviction and sentence passed on the appellant-A.1 for the offence punishable under Sections 498A and 302 IPC are liable to be set aside and accordingly, set aside. 19) In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant-A.1 by the learned VI Additional Sessions Judge, Anantapur at Gooty, in Sessions Case No.553 of 1996 on 21.09.2007 for the offence punishable under Sections 498A and 302 of Indian Penal Code are hereby set aside and he is acquitted for the said offences. Appellant-A.1 be set at liberty forthwith, if he is not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 23rd June, 2011 sur