IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.306 of 2005 Between: The Public Prosecutor, High Court of A.P., Hyderabad … Appellant AND Boosi Bhujangi Rao and 2 others ... Respondents JUDGMENT: The State through the learned Public Prosecutor had filed this appeal against the acquittal of the accused in S.C.No.10 of 2001 on the file of the Principal Assistant Sessions Judge’s Court, Srikakulam, by the judgment dated 23-07-2001 in respect of an offence punishable under Section 498 A of the Indian Penal Code. The factual background for the appeal is that the deceased Busi Malathi was married to the 1st accused on 17-3-2000 and after leading a happy marital life for some time, the 1st accused started suspecting the fidelity of Malathi. Unable to bear his torture and assault almost everyday, Malathi reported to her parents, who got a panchayat conducted by the village elders. The 2nd accused, who is the mother of the 1st accused was advised by the elders to live separately and the 1st accused and Malathi started living separately in another adjacent house. The 3rd accused is the paramour of the 2nd accused and on his instigation, the 1st accused was beating Malathi, who was severely thrashed on 02-10-2000 alleging her to have illicit intimacy with others. Malathi consequently drenched herself in kerosene and set fire to herself. She was joined in the hospital for treatment, but succumbed to the injuries at 6.50 P.M. on the same day. On receipt of the death intimation, the crime was registered, an inquest over the dead body was held and an autopsy was conducted over the dead body. Extensive burns of 95% led to the death and the investigating officer arrested the accused 1 to 3 and sent them for remand. Hence, the charge under Sections 498 A and 306 of the Indian Penal Code against the three accused. After appearance of the accused before the Magistrate, the case was committed to the Court of Session after furnishing the copies of documents to them and the Court of Session framed a charge under Section 498 A of the Indian Penal Code against accused 1 and 2 and Section 306 of the Indian Penal Code against accused 1 to 3, which charge was denied by the accused. During the course of trial, the prosecution examined PWs.1 to 13 and marked Exs.P.1 to P.21 and M.Os.1 to 3. The accused denied the incriminating circumstances appearing against them in the evidence, when they were examined under Section 313 of the Code of Criminal Procedure and no defence evidence was adduced except marking Exs.D.1 to D.3. The trial Court rendered the impugned judgment noting that the incident happened after about six and half months after the marriage of Malathi with the 1st accused and that the evidence of the prosecution about the harassment was only hear say. The trial Court also noted that even the father did not claim to have witnessed the harassment of the deceased Malathi by the accused 1 and 2 and he also did not state the details of the alleged intervention by the elders through a panchayat. The burning of the house also during the incident was noted by the trial Court to be indicating the desperation of the deceased. The trial Court further observed that the evidence of PWs.3 to 5, the neighbouring residents, did not specifically refer to the acts of cruelty or harassment. The trial Court further observed that in Ex.P.5 dying declaration obtained by the Mandal Revenue Officer, PW.6, no thumb impression of the deceased was obtained claiming the same to be due to the extensive burns on the person of the deceased. It further noted that there is no certification of the state of mind of the deceased at the time of recording of Ex.P.5 by the concerned medical officer. The trial Court also presumed from the evidence of PW.8 and Ex.P.6 about 95% burns suffered by Malathi that she would not have been in a position to give any dying declaration and it also found that even the Judicial Magistrate, PW.9, who recorded Ex.P.7 dying declaration, did not obtain the endorsement of the medical officer before recording Ex.P.7. Exs.P.5, P.7 and P.9 by PW.7, PW.9 and PW.11 respectively were found to be not inconsistent, but still were considered to be not sufficient to be acted upon in the absence of any certification by the medical officer about the state of mind of the deceased. When PWs.2 to 5 did not speak about any overt acts committed by the accused, the trial Court felt that the circumstances indicate a positive doubt about the state of mind of the deceased and in the absence of any other acceptable evidence, the benefit of reasonable doubt was given to the accused. They were consequently acquitted. The impugned judgment is challenged herein mainly on the ground of incorrectness of the trial Court in not believing the dying declarations recorded, coupled with the evidence of the doctor about the consciousness of the patient. The evidence of the direct witnesses could not have been discarded and hence, the State desires the acquittal to be reversed. Sri K. Venkateswararao, learned counsel, representing the learned Public Prosecutor and Sri P. Krishna Reddy, learned counsel representing Sri P. Sridhar Reddy, learned counsel for the respondents-accused are heard. The point for consideration is whether the prosecution proved the guilt of any of or all the three accused for offences punishable under Sections 498 A and 306 of the Indian Penal Code beyond reasonable doubt? The marriage of the deceased Busi Malathi with the 1st accused, who is the son of the 2nd accused, on 17-3-2000 and the couple living together in the marital home till the unnatural death of Busi Malathi are admitted. That Busi Malathi died due to extensive burns suffered by her on 02-10-2000 is also not in dispute. That Busi Malathi drenched herself in kerosene and set fire to herself leading to such fatality is also not in dispute. What is in controversy is whether it was any abetment by any of the accused that resulted in such suicide and also whether there was any cruelty through wilful conduct of any accused or any harassment of the woman by any accused with a view to coercing the deceased or any person related to her to meet any unlawful demand for property or valuable security. The prosecution itself did not allege about any harassment with a view to coerce the deceased or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure to meet such demand. The alleged wilful conduct of the accused which was attempted to be shown as sufficient and likely to drive the woman to commit suicide was alleged to be in respect of the suspicion entertained by the 1st accused against the character of the deceased, which if true, may amount to cruelty. Ex.P.9 statement of Malathi was recorded by the Sub- Inspector of Police in which similar allegations as made by the prosecution were claimed to have been made by the deceased. Ex.P.7 is similar statement recorded by the Judicial Magistrate of First Class and in the said statement the deceased made no allegation against the 2nd accused and 3rd accused. She also did not refer to the sister of the 1st accused as in Ex.P.9. She further did not mention about any complaint to her parents or any intervention of any elders and Ex.P.7 has an added detail in claiming that the 1st accused did not intervene even while witnessing her being burnt. Ex.P.7 was endorsed by the medical officer to have been recorded, while the patient was in consciousness and coherent. Ex.P.5 statement was recorded by the Mandal Executive Magistrate from Malathi simultaneously, but the same had no endorsement of the medical officer concerned about the state of health or state of mind of the deceased while giving the statement. In distinction with Exs.P.9 and P.7, Ex.P.5 alleged the father-in-law of Malathi also to be a participant in harassment and the said statement made no reference to the deceased being very severely beaten on that day, which was the immediate provocation for her committing the suicide. The earliest version, which led to the registration of FIR, only stated about Malathi being found burnt when the villagers extinguished the flames and broke open the doors, but not to any other circumstance, which led to the said incident. The Post Mortem certificate, Ex.P.6, shows that the death was due to 95% burns and the trial Court observed that a person, who suffered 95% burns, might not be probably in a position to give a statement and at any rate would not be in a position to give a coherent statement in a fit state of mind. The inquest report, Ex.P.4, of course is a reiteration of the prosecution story and did not appear to be based on any personal knowledge of any of the witnesses to the report. PW.1, the Village Administrative Officer, who reported to the police, only stated about his hearing about the suspicion of the 1st accused against his wife resulting in beating her and he had obviously no personal knowledge. He admitted that he did not enquire any villagers except hearing about the same from the parents of the deceased, who themselves were not direct witnesses to such harassment. PW.2, the father of Malathi, spoke about the settlement of disputes before mediators, but he is a resident of some other village and had only the information allegedly given by his daughter in this regard. PWs.3 to 5 were examined in respect of the alleged harassment but their evidence does not disclose that they had in fact witnessed any act of such harassment. Their evidence is more suggestive of their hearing about the disputes or harassment and not about any personal knowledge for them. PW.9, the Magistrate, had to admit that he did not obtain any certification from the doctor about the fit condition of the patient to give a statement before recording the dying declaration. PW.7, who recorded Ex.P.5, also had to admit that the doctor did not certify that the patient was in a fit condition to give a statement. PW.11, who claimed to have recorded Ex.P.9 statement, did not register the crime on the strength of such statement and the medical officer, who was present when Exs.P.5, P.7 and P.9 were recorded and who certified in two of the statements about the state of health and mind of the deceased himself was not examined. The inconsistencies and improvements between three dying declarations coupled with such other circumstances may make the dying declarations alone an unsafe material for convicting any of the accused. The prosecution evidence did not absolutely make any positive reference to the involvement of the 3rd accused and his alleged instigation to the other two accused remained only an allegation of the prosecution unsupported by an iota of evidence. Even concerning the 2nd accused, except the omnibus allegations made in the three dying declarations about the mother-in-law and sister-in-law also being involved in the harassment, there was no evidence for the prosecution at all and the dying declarations given by the deceased to the Magistrate may be suggestive of the grievance of the deceased being confined to the 1st accused alone. Concerning the grievance of the deceased concerning the 1st accused, it has to be noted that in spite of his allegedly severely assaulting and beating the deceased on number of occasions, on no occasion the deceased was claimed to have been examined by any doctor and apart from the absence of any medical evidence concerning such aspects, it is also seen from Ex.P.6-Post Mortem certificate that the medical officer did not make any reference to finding any traces of severe beating and thrashing of the deceased on that day, which of course may be due to the body being subjected to 95% burns by the time it was brought to the hospital. It is also to be seen that there is no specific evidence as to with which person the deceased was suspected to be having any intimacy by the 1st accused and all these circumstances coupled with similar conclusions by the trial Court, which had the benefit of observing the demeanor of the witnesses in flesh and blood have to lead to giving the benefit of reasonable doubt to the 1st accused also in respect of both the offences. Under the circumstances, there are no strong reasons to reverse the acquittal of the accused by the impugned judgment. Accordingly, the Criminal Appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 31-12-2009 Ksn