THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO DATED: 05-07-2011 CRIMINAL APPEAL No. 1349 OF 2007 Between: Gabu Nageswara Rao ..... APPELLANT AND The State of A.P, rep., by its Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1349 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) In all, four persons including the appellant – A-1 were put on trial for the offence punishable under Section 304-B IPC alternatively under Sections 302 read with 109 and 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 in S.C No. 128 of 2006 on the file of the V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry. A-2 to A-4 were acquitted by the learned Sessions Judge of all the charges by the impugned judgment dated 28-09-2007. The appellant – A-1 was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months and he was acquitted of all the other charges. Hence, the present appeal by the appellant A-1 challenging the conviction and sentence recorded against him. The prosecution story, as unfolded during the course of trial, briefly stated, is as under: The appellant/A-1 is the husband of G.Ganga Bhavani (hereinafter referred to as ‘the deceased’) and their marriage was performed about six years prior to the offence, at Kattipudi. At the time of marriage, the parents of the deceased gave cash of Rs.15,000/- towards dowry and household articles besides Ac.1.00 of land. Since the deceased did not conceive for a period of three years, A-1 and other accused i.e., his parents and sister used to threaten the deceased that they would perform second marriage to A-1. In the fourth year i.e., in 2004, the deceased gave birth to a female child. On the date of their daughter’s birthday, A-1 beat the deceased and the matter was placed before the elders, who admonished A-1. A-1 at the instigation of A-2 to A-4 used to harass the deceased demanding additional dowry. The deceased asked A-1 to celebrate their daughter’s birthday function on 31-03-2005 and A-1 imposed restrictions not to go to her parents house and on the same day at about 7.00 p.m., when the deceased was present at her house, A-1 brought a tin of kerosene and poured over her body and set ablaze due to which she sustained severe burn injuries. PWs 5 and 6 and L.W.7 came to her rescue and shifted her to a nearby hospital in the auto of PW 7 and thereafter she was taken to Kattipudi and then to Pithapuram and then to the Government General Hospital, Kakinada. While undergoing treatment, the deceased died on 01-04-2005 at 9.30 a.m. On 31-03-2005 at about 10.50 p.m., P.W.15 learned IV Additional Judicial First Class Magistrate, Kakinada recorded the dying declaration of the deceased under Ex.P-14. Another dying declaration was recorded by P.W.14, Head Constable of Kakinada I Town Police Station under Ex.P-11. The Mandal Revenue Officer, P.W.13 conducted inquest under Ex.P.7 and recorded the statement of P.W.1 under Ex.P.9 and the observation report was drafted by P.W.11 under Ex.P-6 and he acted as mediator for seizure of M.Os.1 to 6. PW 16, the Sub Inspector of Police, Annavaram Police Station registered the crime under Section 302 r/w 34 I.P.C and Sections 3 and 4 of Dowry Prohibition Act, 1961 and issued F.I.R under Ex.P-15. PW 12 - Medical Officer, who conducted autopsy over the dead body of the deceased, issued post mortem certificate under Ex.P-8. Thereafter, PW 17 took up investigation, examined as many as 22 witnesses and after completion of investigation and receipt of relevant reports filed charge sheet before the learned Judicial First Class Magistrate, Prathipadu who registered it as PRC No. 12 of 2005 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Rajahmundry registered the same as S.C No. 128 of 2006 and made over to the learned V Additional Sessions Judge (Fast Track Court), East Godavari who framed the charges against the accused for the offence under Section 304-B IPC alternatively under Sections 302 and 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 and explained the same to them in Telugu. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 17 and marked Exs.P-1 to P-17 and produced MOs 1 to 6. On behalf of the defence, DWs 1 to 3 were examined. The learned Sessions Judge accepting the evidence adduced by the prosecution namely of PWs 1 and 2 who are the father and brother of the deceased and the dying declaration recorded by PW 15 under Ex.P-14 and the statement of the deceased recorded by PW 14 under Ex.P-11 found the appellant – A-1 guilty for the offence punishable under Section 302 IPC and convicted and sentenced to imprisonment as aforestated, but acquitted A-2 to A-4 of all the charges levelled against them. Questioning the same, the present appeal is filed by the appellant – A-1. Learned counsel for the appellant contended that PWs 3 to 6 who are the neighbourers did not support the case of the prosecution. The statement recorded by PW 14 – Head Constable under Ex.P-11 subsequent to the recording of the dying declaration by PW 15 is inconsistent with the earlier statement with regard to receipt of burn injuries and the incident proper. Therefore, it is unsafe to rely upon the dying declarations to convict the appellant. In support of the same, he relied on the judgment of this Court in Sundarapalli Satyanarayana v. State of Andhra Pradesh[1]. According to the learned counsel, PW 1 – the father of the deceased did not speak of the oral declaration made by the deceased before PW 13 – Mandal Revenue Officer or before PW 17 - the Investigating Officer, but stated the same when examined in the Court and, therefore, the same cannot be relied upon. The reasoning adopted by the trial Court in acquitting A-2 to A-4 equally applies to the appellant – A-1. Per contra, the learned Public Prosecutor supported the impugned judgment convicting the appellant – A-1. Both the counsel have taken us through the entire evidence and the findings recorded by the trial Court. In view of the rival submissions, the only question that arises for consideration is whether the dying declarations recorded under Exs.P- 14 and P-11 can be held to be true and voluntary and can be relied upon to convict the accused and whether the dying declarations suffer from any infirmities for exclusion from consideration. In order to decide the issue, it is for us to scrutinize the two dying declarations in the light of the settled principles. PW 1, the father of the deceased who lodged the report and whose statement was recorded by PW 13 on which basis crime was registered, stated that A-1 is his son-in-law, A-2 is the mother of A-1 who is also his sister, A-3 is the father of A-1 and A-4 is the sister-in- law of his daughter. A-1 married his daughter six years prior to her death. Half acre of land in Kathipudi and half acre of land in Gollaprolu was given towards pasupukunmuma apart from other household articles. A daughter was born to them and she died later. As the deceased did not conceive for four years, the accused sent her to their house in order to perform another marriage to A-1. The deceased was treated in a hospital and after one year, she conceived and a daughter was born to them. According to him, in March, 2004 A- 1 beat the deceased for additional dowry and sent her to their house. The matter was placed before the elders and on the advice of the elders, the deceased was sent to A-1 and after four or five months, the accused against started harassing the deceased for additional dowry. PW 1 further stated that on 31-03-3005 at 7.00 PM, A-1 telephoned to him that the deceased poured kerosene on her body and set ablaze. Then himself and his son PW 2 went to the hospital, found the deceased with burn injuries and the deceased informed him that A-1 to A-3 poured kerosene on her and set ablaze and she was taken to Pithapuram and from there she was taken to Kakinada hospital where she was admitted. The police and the Mandal Revenue Officer examined him and Ex.P-1 is his signature in the statement recorded by the Mandal Revenue Officer. He stated in the cross examination that from Kathipadu to Pithapuram in the auto his wife, A-1’s younger brother and one Dorababu accompanied the deceased. He did not state before the Mandal Revenue Officer and the police on 31-03-2005 that demand for additional dowry was made and the deceased informed the same to him, but volunteered that he stated before the Mandal Revenue Officer that A-1 telephoned to him at 6.30 PM on 31-03-2005 and informed that the deceased set fire herself. PW 2 corroborated the evidence of PW 1. He stated in the cross examination that after the death of the deceased, some gold and household articles given at the time of the marriage were returned and they have yet to receive some gold. PWs 3 to 6 turned hostile as they have not supported the case of the prosecution. Whereas, PW 7 is the auto driver who has taken the deceased along with others to hospital from Kathipadu. PW 10 is the doctor who advised to take the patient to Kakinada hospital. PW 11 is a panch witness to the observation report under Ex.P-6 and also inquest report under Ex.P-7. PW 12 is the doctor who conducted post mortem examination of the deceased and issued Ex.P-8 post mortem certificate stating that the percentage of burns received by the deceased was 93%. PW 13 is the Mandal Revenue Officer who conducted inquest and recorded the statements of PWs 1 to 3. He stated that PW 1, his wife LW 3 and PW 3 did not state before him about the dowry harassment nor PW 1 has informed him that the accused wanted to perform the second marriage of A-1 and that additional dowry demand was made by the accused and A-1 beat the deceased on that ground. PW 14 is the Head Constable who recorded the statement of the deceased on receipt of hospital intimation on 31-03-2005 at 11 PM. He received death intimation on 01-04-2005 under Ex.P-12. He stated in the cross examination that the deceased stated that she sustained burns when her husband and mother-in-law poured kerosene on her and set ablaze and that it took 30 minutes for completion of the statement. He took thumb mark of right toe of the deceased. PW 15 is the Magistrate who on receipt of the hospital intimation for recording the dying declaration, recorded the dying declaration of the deceased on 31-03-2005 between 10.45 PM and 11.00 PM. He stated that after putting questions he satisfied with the answers given by the declarant that she is in conscious state of mind. On behalf of the defence, three witnesses were examined as DWs 1 to 3 to prove that the deceased committed suicide. DW 1 deposed that he was doing liquor business and A-1 was working under him and that except the dispute with regard to celebrating birthday function, the deceased did not make any complaint against the accused. At about 7.00 PM, second son of A-3 visited their shop and told that the deceased poured kerosene and set fire to her. DW 2 is a neighbour to the accused. He admitted in the cross examination that he did not give any statement before the police about the incident and the accused belong to the same caste and he orally informed the police about the incident. DW 3 who is also a neighbour to the accused deposed that A-1 took the deceased in the auto to the hospital and A-1 got money from DW 1 for auto expenses. Then himself and younger brother of A-1, mother and paternal grandmother of the deceased accompanied in the same auto. On the way when the mother and paternal grand mother of the deceased questioned her as to how she sustained burn injuries, the deceased told that A-1 was not listening to her words and her parents are not taking her to their house and, therefore, she committed suicide by pouring kerosene. In the cross examination, he stated that he informed the same to the MRO and the police orally but not in written form. In the dying declaration recorded under Ex.P-15 which was earliest in point of time, the deceased stated that 15 days prior to the incident, she went to her parents house and only on last Saturday she returned to the in-laws’ house. Since then, her mother-in-law harassed her stating that she would perform another marriage to her son. She also stated that her mother-in-law and sister-in-law were quarreling with her since morning and stated that they would perform another marriage to A-1. In the evening, her husband poured kerosene on her and set ablaze. Immediately, she went to the kitchen and poured water and all including her mother brought her to the hospital. Whereas, in the statement recorded by PW 14 – Head Constable under Ex.P-11, the deceased elaborated about the marital life and implicated her husband and in-laws stating that at 7’0 clock her husband along with her in-laws entered into the room in which she was living and her husband poured kerosene and set her ablaze with a lamp along with in-laws. From a perusal of both the dying declarations it is clear that in Ex.P-15 the deceased has stated that her husband alone poured kerosene but in Ex.P-11, she stated that her husband along with her in-laws entered into the room and poured kerosene and set her ablaze and except this, there is no inconsistency with regard to A-1 pouring kerosene on the deceased and setting her ablaze. The Supreme Court in Vikas and others v. State of Maharashtra[2] held thus: “One of the principles formulated by this Court in Khushal Rao (AIR 1958 SC 22) was that where a dying declaration is recorded by a competent Magistrate, it would stand on a ‘much higher footing’. We are in respectful agreement with the above view. In our judgment, this is also based on ordinary course of human conduct. A competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court.” In view of the same, the judgment of this Court in Sundarapalli Satyanarayana’s case (1 supra) on which reliance is placed by the learned counsel for the appellant in not applicable to the facts of the present case. In Gopal v. State of A.P.,[3] where there were more than one dying declaration, the Supreme Court held that it is not the plurality of the dying declarations, but the reliability of the dying declarations that determines the truth of the prosecution story. If the dying declaration was found to be voluntary, reliable and was made in a fit mental condition, the Supreme Court considered that such a dying declaration could be relied upon without any corroboration and that the plural dying declarations should be consistent throughout. The Supreme Court further stated that if there are inconsistencies in the dying declarations, the Courts should examine whether the inconsistencies are material on record. Applying the above principles to the case on hand, we are satisfied that there is no inconsistency in both the dying declarations with regard to the incident proper i.e., the appellant – A-1 pouring kerosene over the deceased and setting her ablaze. Merely because the deceased stated that the father-in-law and the mother-in-law accompanied A-1 in the subsequent statement recorded under Ex.P-11 by PW 14, we cannot discard the genuiness of the dying declaration recorded by the Magistrate, wherein the duty doctor also endorsed about the consciousness of the patient at the time of recording the statement. Apart from that, the Magistrate himself endorsed that he satisfied that the patient is able to answer rationally to the questions put by him. Further, the evidence of PWs 1 and 2 also discloses that the deceased was sent to her parents’ house and there was a mediation in that regard by the mediators and later, she was again sent to her in-laws house as decided by the mediators. In view of the same, we are not persuaded to take a different view than the one taken by the lower Court for convicting the appellant – A-1. In the result, the criminal appeal is dismissed. A. GOPAL REDDY, J RAJA ELANGO, J 05-07-2011 ks [1] 2011 (1) ALD (Crl.) 641 (AP) [2] 2008 AIR SCW 915 [3] 2010 (1) ALD (Crl) 126 SC