THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1361 of 2007 Dated : 14.06.2011 Between : P.Venkata Narayana Varma …. 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.1361 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.191 of 2004 by the Sessions Judge, Mahila Court, Vijayawada, on 20.09.2007 wherein the appellant was convicted under Section 235 (2) Cr.P.C. and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/-, in default to suffer simple imprisonment for six months, for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’) and further sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for three months, for the offence punishable under Section 498A IPC. In view of sentence imposed for the offence under Section 302 IPC, no separate sentence was imposed by the learned Sessions Judge on the accused for the offence under Section 304B IPC. 2) The case of the Prosecution, in brief, is that the marriage of the deceased Pedasingu Hymavathi was performed with accused on 14.06.1988 and at the time of marriage, as demanded by the accused, the parents of the deceased agreed to pay dowry of Rs.70,000/-, one gold ring. But, they paid only Rs.50,000/- to the accused and deposited Rs.20,000/- in a bank in the name of the deceased. After the marriage, the couple led happy marital life at Kalahasthi. On becoming pregnant, the deceased came to her parents house. On loosing his job, the accused came down to Vijayawada and subsequently got employment in Davangudem in Gannavaram Mandal, where the deceased joined with the accused. Accused being habituated to bad vices, started demanding the deceased to get Rs.20,000/- deposited by her parents in the bank. While so, on 09.12.2003 at about 2 p.m. accused quarreled with the deceased and beat her for not bringing the amount. Since the deceased did not respond, accused grew wild against her and decided to kill her and poured kerosene on her, lit matchstick and set fire to her. During such process, accused also got received burn injury. On hearing the hue and cry of the deceased, neighbours rushed to the spot and shifted her to Government General Hospital, Vijayawada. On the same day at about 8.30 p.m. she succumbed to burn injuries. On the strength of the statement of the deceased, Police registered a case in Crime No.601 of 2003. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge sheet against the sole accused for the offence punishable under Sections 498A and 302 IPC, which was numbered as P.R.C. No.49 of 2004 by the IV Metropolitan Magistrate, Vijayawada. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 302 and 498A IPC and in alternative 304B IPC, in which, the accused denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 21 and marked Exs.P.1 to P.23 apart from marking MOs 1 to 6. 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 evidence, however Ex.D.1 was marked in support of his defence. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Sessions Judge rendered the impugned judgment as stated above. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) P.W.1, the father of the deceased, deposed that the deceased Hymavathi was given in marriage to the accused about four or five years prior to her death. At the time of marriage, Rs.50,000/- was given to the accused and thereafter Rs.20,000/- was deposited in the name of his daughter. For six months both led marital life happily and thereafter the accused used to make galata with the deceased in drunken state demanding the deceased to bring Rs.20,000/- deposited in the bank. For every two or three months, the deceased used to come to their house complaining about the accused and every time his wife i.e. the mother of the deceased used to send back the deceased to her matrimonial house. He further deposed that he took the Sarpanch of Odapalem to the house of the accused and advised both the accused and deceased to lead their marital life properly. 10 days after this incident, on receiving information that his daughter died, he went to Government Hospital, Vijayawada. His wife informed him that the deceased told her that the accused poured kerosene on her and set fire to her. P.W.2, the mother of the deceased, also deposed in the same lines of P.W.1. 8) P.W.3 deposed that on the date of incident at about 1 or 2 p.m. he saw the son of the deceased coming to his house by weeping. On that, he went to the house of the accused along with the boy and smelled burning smoke from the house of the accused. Then he called the neighbours. According to him, he became unconscious and fell down. After regaining conscious he came to the know that the accused poured kerosene on his wife and set fire to her. 9) PWs 4 to 8, the neighbours of the deceased, turned hostile to the prosecution case. P.W.9, the cousin of the deceased, deposed that on coming to know from the neighbour of the deceased that the deceased was burnt, she went to the house of the deceased and on her enquiry, the deceased informed her that the accused and herself (deceased) quarreled with each other and then the accused poured kerosene on her and set fire to her and went away by closing the door. PWs 10 and 11 are the caste elders. 10) P.W.12 is the Civil Assistant Surgeon who sent death intimation of the deceased to Nunna Rural Police Station vide Ex.P.5. P.W.13 is the doctor who examined the accused for the burn injuries sustained by him and issued Ex.P.6 wound certificate of the accused. 11) P.W.14 is the mediator for scene of offence panchanama. P.W.15 is the photographer who took photographs of the deceased under Ex.P.9. P.W.16 is the doctor who sent intimation about the admission of the deceased in the hospital with burn injuries. Ex.P.10 is the intimation. She also sent Ex.P.11 requisition to the III Metropolitan Magistrate, Vijayawada. Ex.P.12 is the endorsement of P.W.16 on the dying declaration recorded by the S.I. of Police. Exs.P.13 and P.14 are the endorsements of P.W.16 on the dying declaration recorded by the Magistrate. P.W.17 is the Civil Assistant Surgeon who conducted autopsy over the dead body of the deceased and Ex.P.15 is the P.M. Report. 12) P.Ws.18 and 20 are the investigation officers, who conducted investigation in this case. Ex.P.16 is the statement of the deceased recorded in the nature of dying declaration by P.W.18, the S.I. of Police. Ex.P.17 is the F.I.R., Ex.P.18 is the 161 Cr.P.C. statement of the deceased, Ex.P.19 is the rough sketch, Ex.P.20 is the alteration memo and Ex.P.21 is the letter of advice and Ex.P.22 is the F.S.L. Report. P.W.19 is the Deputy M.R.O. who conducted inquest over the dead body of the deceased. P.W.21 is the Magistrate, who recorded the dying declaration of the deceased under Ex.P.23. 13) Relevant portion of Ex.P.16 statement of the deceased (as per English translation copy) recorded by P.W.18, the S.I. of Police, is hereby extracted for better adjudication of the matter: “….. Today on 09-12-2003 at about 2.00 p.m. my husband came in the house and take meals, after meals he quarreled with me due to balance dowry, he beat with his hands and he poured kerosene on my body and set match stick and set fire, then I burnt and I raised hue and cry and on that my husband fled away.” 14) Relevant portion of Ex.P.23, the dying declaration of the deceased (as per English translation copy) recorded by the Magistrate, is also hereby extracted: “….. 8. Tell me, what happened? Ans : Today at about 2.00 p.m. in my house. My husband poured kerosene on my body and lit match stick and set fire and that he fled away. I raised hue and cry, then neighbours came there. Then Police bring me to the hospital. All my body burnt. Nobody are there, when my husband poured kerosene. Then, he escaped. ……..” 15) The learned Sessions Judge erroneously convicted the appellant-accused for the offences under Sections 302 IPC and 304B IPC. The learned Sessions Judge has every right to frame alternate charges under Sections 302 and 304B IPC but at the same time after recording the evidence, basing on the evidence available conviction should be imposed either for the offence under Section 302 IPC or 304B IPC but there cannot be any conviction for both the offences under Sections 302 and 304B IPC, which are distinct in nature. The learned Sessions Judge has mainly relied on the evidence of PWs 18 and 21, who respectively recorded the statements of the deceased under Exs.P.16 and 23. In the said dying declarations, the deceased has categorically stated before the Police officer as well as the learned Magistrate, who were examined as PWs 18 and 21 respectively, the time and the manner in which the said offence was committed by the appellant herein. No doubt, conviction can be based on the sole testimony of the deceased, which is in the nature of dying declaration, but it should always depend upon the facts and circumstances of the case. 16) In the present case, the accused also sustained injury in the course of the said occurrence and he was also treated by the doctor- P.W.13. The learned Sessions Judge has also discussed the evidence, available on record, in length. On careful scrutiny of the entire evidence coupled with documentary evidence, this Court is of the view that in the present case, there is no need to evaluate the other evidence when there is direct evidence available on record in the nature of two dying declarations pointing towards the guilt of the accused, which is cogent in nature and highly believable. The judgment of the trial Court also does not suffer with any infirmities or perversity, except only on one aspect i.e. the learned Sessions Judge apart from convicting the accused for the offence under Section 302 IPC also convicted him for the offence under Section 304B IPC. This Court is of the definite view that there cannot be any conviction for both the offences under both Sections 302 and 304B IPC since they are distinct in nature. 17) Section 304B IPC deals with ‘dowry death’ wherein the burden will be caste upon the accused to prove that the death of the deceased is a natural one and he is not guilty of the offence alleged against him, whereas in a case of section 302 IPC, it is the duty of the Prosecution to prove the offence alleged against the accused by adducing proper evidence. In the present case, the evidence adduced by the prosecution is directly pointing towards the guilt of the accused and nothing is available on record to disbelieve the evidence adduced by the prosecution. Hence, the conviction under Section 304B IPC is liable to be set aside while the conviction imposed for the offence under Section 302 IPC is to be confirmed. 18) As far as conviction under Section 498A IPC is concerned, it is the case of the Prosecution that the accused demanded money, which was deposited by the deceased in the bank, but the said demand is certainly not in the nature of demand of dowry to attract the ingredients of section 498A IPC. Even according to the evidence of the other witnesses, there was no quarrel between the deceased and the accused in connection with demand of dowry. Further more, mere demand of dowry itself does not attract the ingredients of offence under Section 498A IPC. The demand of dowry coupled with harassment only would attract the offence punishable under Section 498A IPC. Hence, the conviction and sentence imposed on the appellant-accused for the offence punishable under Section 498A IPC is also liable to be set aside. 19) In the result, the Criminal Appeal is allowed in part. The conviction and sentence imposed on the appellant-accused by the learned Sessions Judge, Mahila Court, Vijayawada, in Sessions Case No.191 of 2004 on 20.09.2007 for the offence punishable under Sections 498A and 304B IPC are hereby set aside and he is acquitted for the said offences. However, the conviction and sentence imposed on the appellant-accused is hereby confirmed to the extent of the offence punishable under Section 302 of Indian Penal Code. Fine amount paid by the appellant imposed for the offence punishable under Section 498A IPC, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 14th June, 2011 sur