* HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRIMINAL APPEAL NO. 95 OF 2008 % 18.02.2011 # The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad. .. Appellant/Complainant Vs. $ Vaggu Tarabia and another .. Respondents/Accused <GIST: >HEAD NOTE: ! Counsel for Appellant : Public Prosecutor ^ Counsel for respondents : Sri V. Ravi Kiran Rao ? CASES REFERRED : 1. (1997) 11 Supreme Court Cases 50 2. AIR 2004 Supreme Court 1708 3. AIR 2004 Supreme Court 1720 4. (2010) 3 Supreme Court Cases (Cri) 1502 5. (2010) 3 Supreme Court Cases (Cri) 560 6. (2010) 3 Supreme Court Cases (Cri) 197 7. 1995 CriLJ 368 8. 1992 CriLJ 563 HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL NO. 95 OF 2008 JUDGMENT: (per Hon’ble Sri Justice B. Chandra Kumar) The State of A.P. filed this appeal challenging the judgment dated 28.07.2005 passed in Sessions Case No.264 of 2005 by the III Additional Sessions Judge (FTC), Asifabad, acquitting the respondents herein for the charges framed against them for the offences punishable under Sections 302 and 498-A IPC read with Section 34 IPC. 2. Respondents 1 and 2 herein shall be referred to as A1 and A2 for the sake of convenience. 3. The prosecution case, in brief, is as follows. A1 - Vaggu Tarabai is the mother of A2 - Vaggu Prabhakar @ Bharat. A2 is the husband of Vaggu Amrutha (hereinafter referred to as ‘deceased’). The marriage of A2 and the deceased was solemnized about one year prior to the date of incident. It is alleged that the accused demanded an amount of Rs.20,000/-, half tula of gold and some household articles towards dowry and the same were presented to the accused at the time of marriage. A2 and the deceased lived together without any disputes for about five months. Thereafter, the accused wanted to spend the dowry amount of Rs.20,000/- but the deceased insisted that the amount should be deposited in the joint account of herself and A2. But, the accused did not agree to the said proposal and since then disputes arose between the accused and the deceased. It is also alleged that on 28.07.2004 A1 alleged that her silver leg chains were missing and that the deceased committed theft of the said silver leg chains. The accused also threatened to kill her by setting her ablaze, in case the silver leg chains were not traced. It is also the case of the prosecution that on the same day at about 5.00 PM when the deceased went inside the kitchen room, the accused poured kerosene on her and set her ablaze. The deceased who was in flames came out of the house and ran towards her parents house, which is separated by just three houses from the house of the accused. 4. PW.1 is the mother and PW.2 is the father of the deceased. Both of them seeing the deceased in flames covered her body with a blanket and put off the flames. PW.9 Kamera Ramchander and his wife Kamera Kamala - PW.10 who are neighbours of PW.1 came there and PW.9 arranged an auto on the request of PW.1, and then they took the deceased to a nursing home of Dr. Madhu – PW.8 in the auto of PW.3. It is also the case of the prosecution that the deceased had informed her parents and others that the accused had set fire to her since she had not agreed to their proposal to spend the amount of Rs.20,000/- and further A1 made a false blame of committing theft of silver leg chains against her. 5. According to PW.8, the deceased was brought to his nursing home on 28.07.2004 at about 5-30 PM with burns over neck, trunk and lower limbs and that he gave pain killer injection and referred her to ESI hospital, Kaghaznagar and that the deceased was conscious. Then the deceased was shifted to ESI hospital by 6.15 PM and she was admitted in the said hospital. PW.4 - Dr. Narasimha Rao, who was working as Superintendent of ESI Hospital, Kagaznagar, treated her and also informed the local police over phone. According to PW.4, the deceased was conscious and able to speak and that on the same day at 9.00 PM she was shifted to ESI Hospital, Hyderabad. 6. Ch. Rajanna – PW.18, who was working as ASI, Kagaznagar town police station, received a phone call from PW.4 on 28.07.2004 at about 18.35 hours. Then, he along with Ch. Sudarshan, Constable (PW.16) proceeded to ESI Hospital, Kagaznagar and recorded the dying declaration of the deceased in Ex.P12. According to PW.18, the deceased was lying with burn injuries but she was conscious and capable of speaking, when he recorded the statement of the deceased in the presence of the Doctor. He further deposed that he had read over the contents of Ex.P12 to the deceased and obtained her signature and sent the said statement through PW.16 to the police station, Kagaznagar town. In Ex.P12 the deceased had stated that about one year prior to the incident her marriage was solemnised with A2 and that at the time of her marriage an amount of Rs.20,000/- was presented by her parents towards dowry and that A1 and A2 wanted to spend that amount for some work and that she had insisted that the amount should be kept in the fixed deposit in the joint names of herself and her husband and therefore A1 and A2 were harassing her. Today i.e., on 28.07.2004 at 5.00 PM her mother-in-law alleged that her silver leg chains which were kept in Almirah, were found missing and that she (deceased) had stolen them and that A1 and A2 harassed her to bring those silver leg chains and that she felt insulted. A1 and A2 further threatened that if the silver leg chains were not traced they would kill her by pouring kerosene oil and setting her on fire. When she entered into kitchen her mother-in-law (A1) came behind her and poured kerosene oil on her and set her ablaze. She ran out crying while in flames and that her parents came and extinguished the fire, but in the meanwhile she sustained burns on her face, neck, chest, stomach and two legs. Soon she was shifted to a local Doctor by her parents and PWs.9 and 10 and then she was admitted in E.S.I., Hospital. Her mother-in-law and husband harassed her and tried to kill her. 7. G. Narasimha Swamy, Head Constable (PW.17), who received the statement of the deceased through PW.16 registered a case in Crime No.108 of 2004 under Sections 307 and 498-A IPC and sent the copy of FIR and CD file to PW.18 for further investigation. Then PW.18 examined the deceased, her mother - PW.1, father - PW.2, K. Ramchander - PW.9, K. Kamala - PW.10, Dr. Madhu - PW.8, Dr. Narasimha Rao - PW.4, B. Ramkishan - PW.3 and Ch. Sudarshan - PW.16 and recorded their statements under Section 161(3) Cr.P.C. Meanwhile, he had given a requisition to the Mandal Revenue Officer, Kagaznagar for recording the dying declaration of the deceased. Then he visited the scene of offence in the house of the accused and observed the scene of offence in the presence of Durgam Bheemaiah - PW.6 and Ratnam Kishan - Pw.7 and seized empty kerosene plastic can – MO-1 and partly burnt match stick – MO-2 lying in the kitchen under a cover of panchanama Ex.P14 and he had shown the rough sketch of the scene of offence in the same panchanama. Then, he returned to police station and handed over the CD file for further investigation to K. Pruthvi Raju - PW.19, who was working as SI of Police, Kagaznagar. 8. PW.11 – Salman Raju, who was working as Mandal Revenue Officer, Kagaznagar, received a requisition from the police Kagaznagar requesting him to record the dying declaration of the deceased. Then, he proceeded to ESI hospital, Kagaznagar, and after putting some preliminary questions to the deceased to know her mental condition and having satisfied that the deceased was conscious and in a fit state of mind to give statement, recorded the dying declaration of the deceased in the presence of the duty doctor. Ex.P7 is the dying declaration recorded by PW.11. According to PW.11, the Doctor on duty certified that the deceased was conscious and coherent. According to PW.11, the deceased stated before him that there were misunderstandings between herself and her mother-in- law and that her mother-in-law poured kerosene on her and set her ablaze. 9. The deceased was shifted from Kagaznagar to Osmania General Hospital, Hyderabad, by PW.5. While the deceased was undergoing treatment in Osmania General Hospital, Hyderabad, on the requisition of local police PW.14 – R. Thirupathi, the IV Metropolitan Magistrate, Hyderabad, proceeded to Osmania General Hospital, Hyderabad. The deceased was introduced by the doctor A. Subhodh Kumar, who had certified that the deceased was conscious, coherent and in a fit state of mind to give dying declaration. Then, PW.14 perused the case sheet of the deceased after putting some preliminary questions and having satisfied that the deceased was mentally fit to give statement recorded the dying declaration in Ex.P10 at 12.30 PM on 29.07.2004. Then, he read over the contents of the said dying declaration to the deceased and obtained her signature on the dying declaration. According to PW.14, the deceased had stated before him as follows. “Yesterday evening around 5.00 PM my husband Bharath, my aunty Tarabai, poured Kerosene on me and set ablaze. At the time of my marriage Pattagolusulu (ornament made with Silver) was bought by my Aunty was kept in a alimaraha under the saree of my Aunty and told that they are kept in my saree. I searched around my sarees but not traced out. At last it was found at her saree. My aunty told me thief. But it was found under the folding of her saree Sir. When I stayed for four years at my Aunty’s house. My father came to my house and took me to their house for two days. But for two months I stayed with them. After two months my husband came and took me back to their house. Without my knowledge my pattagolusulu which was given as dowry was taken by my husband from my alimaraha and kept under the saree of my aunty’s alimaraha. My aunty doesn’t know about this. She though that I have taken pattagolusulu and asked me. I told that it was not with me. But she asked to give pattagolusulu otherwise threatened to set afire and really set afire me. She came outside and ran to her parents house.” 10. The deceased died in the Osmania General Hospital on 31.07.2004 at about mid night. On receiving information about the death of the deceased through PW.5, PW.19 – K. Pruthvi Raju, SI of Police, Kagaznagar, altered the section of law to Section 302 and 498- A read with 34 IPC. Ex.P15 is the alteration memo. PW.15, who was working as Mandal Revenue Officer, Hyderabad, on the requisition of PW.19, conducted inquest over the dead body of the deceased in the presence of S. Rajaiah - PW.12 and one D. Nanaiah at the mortuary of Osmania General Hospital, Hyderabad, on 01.08.2004. PW.13 - Dr. K. Srinivasulu has conducted post-mortem examination over the dead body of the deceased and found the following injuries. “Antimortem Dermo epidermal burns present all over the body except over scalp, palmer surface of right hand, patchy area over front of abdomen below umbilicus, external genitelia, lateral aspect of right thigh, lateral aspect of right knee, lateral aspect of right leg upper and middle area, dorsum and soles of both foot, about 90% burns present over the body.” 11. PW.13 opined that the cause of death is due to burns. Ex.P9 is the post-mortem examination report. Then PW.20 verified the investigation done by the Asst. Sub-Inspector and Sub-Inspector in this case, arrested A1 and A2 on 03.08.2004 and after completion of investigation, laid charge sheet against A1 and A2. 12. The trial Court framed the following charges. 1. That A1 and A2 of you on 28.07.2004 at 1700 hours at Ambedkar Colony, Kaghaznagar with common intention committed murder intentionally (or knowingly) causing the death of Amrutha wife of A2 of you and that you thereby committed an offence punishable under Section 302 read with 34 of the Indian Penal Code and within my cognizance. 2. That A1 and A2 of you on or prior to 28.07.2004 at Ambedkar Colony, Kaghaznagar, being the mother-in-law and husband respectively of Amrutha (deceased) subjected such woman to cruelty by harassing her and that you thereby committed an offence punishable under Section 498-A of the Indian Penal Code and within my cognizance. 13. The plea of the accused is one of total denial. 14. The prosecution, in order to prove its case, examined PWs. 1 to 20 and got marked Exs.P1 to P14 and MOs.1 and 2. The accused denied the incriminating evidence appearing against them when they were examined under Section 313 Cr.P.C. Their specific case is that while they were standing in front of their house the deceased came out from their house in flames and ran towards her parents house. On behalf of the accused, none were examined and no documents were marked. 15. The learned III Additional Sessions Judge (FTC), Asifabad, having observed that the dying declaration is not in prescribed form under Rule 33 of the Criminal Rules of Practice and that the deceased had given inconsistent versions, disbelieved the dying declarations. As far as dowry harassment is concerned the learned Sessions Judge held that the evidence of PWs.1 and 2 is hearsay evidence and that the prosecution failed to establish the guilt of A1 and A2 for the charges under Sections 302 and 498-A read with 34 IPC and accordingly acquitted A1 and A2. Aggrieved by the same, the present appeal has been preferred by the State. 16. The learned Additional Public Prosecutor submitted that the marriage of the deceased and A2 was performed just one year prior to the date of occurrence and that the deceased was harassed as she did not agree to spend the dowry amount of Rs.20,000/- and that A1 made a false allegation against the deceased that she had committed theft of silver leg chains and made her son A2 to believe the same and that both the accused harassed the deceased. It is also his submission that the dying declaration recorded by the Magistrate clearly proves that both the accused had poured kerosene on the deceased and set her ablaze and that there are no major inconsistencies in the dying declarations and each dying declaration has to be considered separately. It is also his submission that the trial Court failed to consider the material evidence in a proper perspective. It is also his submission that the deceased did not make any material improvement in her dying declarations and in such circumstances the trial Court ought not to have rejected the dying declarations, and in support of his contention he has relied on a decision reported in Pratapaneni Ravi Kumar @ Ravi and another v. State of A.P.[1]. In support of his contention that each dying declaration has to be considered independently on its own merit he has relied on a decision reported in Nallam Veera Satyanandam and others v. Public Prosecutor, High Court of A.P.[2]. 17. Sri V. Ravi Kiran Rao, learned counsel appearing for the accused, submitted that this is an appeal arising out of the acquittal judgment and normally the findings of the trial Court cannot be disturbed unless they are found to be perverse and based on no evidence. It is his submission that in this case the learned Sessions Judge has considered the entire evidence in proper perspective and because of inconsistent versions given by the deceased, for valid reasons the dying declarations were disbelieved. Thus, his main submission is that when there are inconsistent versions in the dying declarations the trial Court is justified in disbelieving those dying declarations. It is also his submission that in Ex.P12 dying declaration recorded by the ASI, the deceased had alleged that A1 had poured kerosene from her back side and if at all such version is true the deceased would have suffered major burn injuries on her back side, whereas, admittedly, the deceased had sustained burn injuries on frontal side and this circumstance shows that the version given by the deceased is false. It is also his submission that admittedly both A1 and A2 had accompanied the deceased to the hospital and that A2 accompanied the deceased up to Hyderabad also, this conduct of the accused shows that they had not committed the offence. It is also his submission that PWs.1 and 2 who are the parents of the deceased were all along with the deceased and they had ample opportunity to tutor the deceased. In support of his contention he has relied on the decisions reported in Lella Srinivasa Rao v. State of A.P.[3], Thanu Ram v. State of Madhya Pradesh[4], Nallapati Sivaiah v. Sub- Divisional Officer, Guntur, A.P.[5], and in Puran Chand v. State of Haryana[6]. 18. The points that arise for consideration are; (1) Whether the lower court is justified in rejecting the dying declaration and acquitting the accused for the offence under Section 302 IPC? (2) Whether Section 304-B IPC which is minor to Section 302 IPC is made out against the accused, if so, whether the accused can be found guilty for the same when no charge is framed for the said offence? and (3) Whether the lower Court is justified in acquitting the accused for the charges under Section 498-A IPC? Point No.1: 19. As seen from the evidence it is clear that the marriage of the deceased and A2 was performed about one year prior to the date of incident and at the time of marriage, on the demand of the accused an amount of Rs.20,000/-, half tula of gold and household articles were presented. Four or Five months after the marriage disputes arose between them when the deceased did not agree to spend Rs.20,000/- as proposed by the accused and when she insisted to deposit the same in the fixed deposits in her name and in the name of A2 i.e., in their joint account. When her father brought her to his house for only two days nobody from her in-laws house came to take her back for about two months. Thus, there is evidence on record to show that the deceased was harassed with regard to the issue of spending dowry amount prior to her death. As far as the actual incident is concerned, it is clear that there are inconsistent versions in dying declarations of the deceased as to the accused, who had poured kerosene oil on her and who had concealed silver leg chains in the saree folds of her mother- in-law. 20. We are conscious that we are dealing with an appeal against the judgment of acquittal. It is settled law that the High Court is justified in setting aside an acquittal judgment wherein it is found that the trial Court committed gross error in the appreciation of evidence and has taken into consideration wholly in consequential circumstances and acted with material irregularity. When the conclusions reached by the trial Court are found to be unreasonable, unsustainable, perverse, the appellate Court has to re-appreciate the evidence in order to prevent miscarriage of justice. We have prima facie satisfied that the trial Court failed to consider the material evidence on record, particularly the evidence of PWs.1 and 2, about the harassment caused by the accused to the deceased. Therefore, it becomes necessary to re-appreciate the entire evidence. 21. As far as dying declarations are concerned, the principles laid down in various decisions referred by both the learned counsel are as follows. 22. In Lella Srinivasa Rao v. State of A.P. (3 supra) relied upon by the learned counsel for the accused, the Supreme Court held that it is not safe to act solely on the basis of the dying declarations having regard to the inconsistency in the two dying declarations. In that case, the husband and the mother-in-law of the deceased were tried for the offences punishable under Sections 498-A and 306 IPC and the deceased had stated before the Magistrate that due to unbearable harassment caused by her mother-in-law she had poured kerosene oil on her body and set herself on fire and that none-else had set her on fire. The said dying declaration was recorded between 3.30 PM and 3-40 PM. Another dying declaration was recorded by the Head Constable only 5 minutes after the dying declaration was recorded by the Magistrate and in the second dying declaration the deceased had given a detailed version that her husband and mother- in-law used to harass her. The apex Court observed that in the first dying declaration the allegation is made only against mother-in-law saying that she used to harass her and in the second dying declaration, she stated in detail about her parents visiting her house and harassment meted out by her husband. In that case both the parents of the deceased had turned hostile and did not support the case of the prosecution. There is no other material except dying declarations in that case. In the above circumstances, the apex Court found that it is not safe to act solely on the basis of dying declarations having regard to the inconsistency in the two dying declarations. In this case also as far as the incident of pouring kerosene on the deceased is concerned the deceased initially made allegations against her mother-in-law only, but subsequently she had implicated her husband also. 23. In Thanu Ram v. State of Madhya Pradesh (4 supra) the apex Court observed that the dying declaration has to be treated with caution since accused does not get a chance to cross-examine the victim. 24. Sri V. Ravi Kiran Rao, learned counsel for the accused, in support of his contention that where the recitals of dying declaration are contradicting the medical evidence, such dying declaration becomes suspicious, has relied on a decision reported in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P. (5 supra), wherein it was observed as follows. “In our considered opinion, the medical evidence and surrounding circumstances altogether cannot be ignored and kept out of consideration by placing exclusive reliance upon the testimony of person recording a dying declaration. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration-be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.” 25. When we carefully examine the medical evidence and the version of the deceased, the version of the deceased in her dying declarations does not inspire confidence because the deceased had stated in Ex.P12 that A1 poured kerosene from her back side and if that version is correct in all probabilities the deceased ought to have sustained injuries on her back side portion of the body, but admittedly, the medical evidence shows that all the injuries are on frontal side. 26. In support of his contention that the Court must be extremely careful while dealing with dying declarations he