THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1331 of 2001 JUDGMENT: 1. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.), is preferred by the appellant/accused, challenging the judgment dated 30.08.2001 in Sessions Case No. 150 of 1998 on the file of the III Additional Sessions Judge (Fast Track Court), Ranga Reddy district, whereunder and whereby the appellant/accused was found guilty of the offence punishable under Section 304B of the Indian Penal Code (for short, ‘I.P.C.’), and accordingly convicted and sentenced to undergo rigorous imprisonment for a period of seven years. 2. The brief facts that are necessary for disposal of this criminal appeal may be stated as follows: On 4.8.1996, on receipt of information that Smt. Venkateshwari (hereinafter referred to as ‘the deceased’) was admitted in Gandhi Hospital, Secunderabad, P.W.8- Sub Inspector of Police rushed to the hospital and recorded her statement Ex.P7. She stated that her marriage was performed with the accused about 7 months back and she is his second wife, and that on 3.8.1996 at about 10.00 PM, while she was lighting kerosene stove to cook food, all of sudden, flames came up and her saree accidentally caught fire, and on hearing her cries, the accused came to her rescue, extinguished the flames and shifted her to Gandhi Hospital with the help of his brother and admitted her. Basing on the same, a case was registered. Dying declaration of the deceased was recorded by the P.W.12-concerned Magistrate. The deceased succumbed to the injuries on 6.8.1996 and thereafter P.W.1-her father lodged a report that the deceased was harassed by the accused for additional dowry and unable to bear the same she herself ablazed by pouring kerosene. Thereupon, the section of law was altered to 304B I.P.C. During the course of investigation, police visited the scene of occurrence, examined the witnesses and recorded their statements. P.W.7 conducted inquest over the dead body of the deceased in the presence of panchayatdars. During the course of investigation, it came to light that the deceased is the youngest daughter to her parents and she was given in second marriage to the accused, who is a Carpenter. At the time of marriage, Rs.10,000/- cash, clothes and other articles worth Rs.8,000/- were given to the accused as dowry. For about one month after the marriage, the accused treated the deceased well and thereafter started harassing the deceased demanding to bring additional dowry of Rs.10,000/- from her parents, and since his demand was not met, the accused used to harass the deceased and ill-treat her, and vexed with the harassment and unable to bear the same, the deceased committed suicide. After completion of investigation, police laid the charge sheet. 3. The trial Court framed the following charge against the accused. “Charge no.1: That your first wife expired and you married Venkateswari as a 2nd wife at the time of marriage Rs.10,000/- cash, clothes and other articles worth Rs.8,000/- were given to you and you asked the deceased to bring additional dowry of Rs.10,000/- from her parents and the deceased conveyed the demand of the accused to her parents and her father asked her to reconvey the accused that he was running short of money as your demand was not complied you used to harass and ill-treat the deceased and during the course of one of her visits of her parents the deceased confided of her harassment and then her father consoled her that he would arrange the demanded addl. dowry shortly, thereby you committed an offence punishable u/s. 498A IPC and within my cognizance.” Charge No.2: That on your harassment as the deceased unable to withstand the vexatious behaviour of you for addl. dowry on 3.8.96 at 10 p.m., doused herself in kerosene and set ablaze at her house. When shifted and admitted in Gandhi Hospital, Secunderabad, she gave her D.D. and succumbed to her burn injuries on 6.8.96, thereby you committed an offence u/s. 304-B IPC and within my cognizance.” When the charges were read over and explained to the accused in telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 12 and got marked Exs.P1 to P12, besides case properties M.Os. 1 to 3. 5. After completion of the prosecution side evidence, the accused was examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. He denied the same. No oral or documentary evidence was adduced on behalf of the accused. 6. The trial Court, placing reliance on the evidence of P.W.1 and the contents in Ex.P12, found the appellant/accused guilty of the offence punishable under Section 304B I.P.C., accordingly convicted and sentenced him as stated above. Challenging the same, the present appeal is preferred by the accused. 7. Now, the point for determination is whether the prosecution established its case against the appellant/accused of the offence punishable under Section 304B I.P.C. beyond reasonable doubt and whether the judgment of the trial court is correct, legal and proper ? 8. The learned counsel appearing for the appellant contended that, except the solitary testimony of P.W.1, there is no other evidence to show that the deceased was subjected to harassment or cruelty, for or in connection with demand of dowry; that Ex.P12-dying declaration given by the deceased to P.W.12 does not show that the deceased was subjected to cruelty with regard to demand of additional dowry; that, P.W.2, who is brother of the deceased, clearly stated that the accused never demanded any additional dowry; that, the trial court placed reliance on the dying declaration, but the contents thereof would not attract the necessary ingredients of the offence punishable under Section 304B I.P.C. Hence, he prays to set aside the conviction and sentence recorded against the accused. 9. On the other hand, the learned counsel representing the Public Prosecutor contended that, the evidence of P.W.1 is very clear that the deceased gave oral declaration that she was subjected to cruelty for or in connection with demand of dowry; that the contents in Ex.P12 are very clear that the accused instigated the deceased to commit suicide and on that only she committed suicide; that, though the contents of Ex.P12 do not attract the necessary ingredients of the offence punishable under Section 304B I.P.C., they would certainly attract the offence punishable under Section 306 I.P.C. and therefore the appellant is liable for punishment for the offence punishable under Section 306 I.P.C. 10. The charge levelled against the appellant is for the offence punishable under Section 304B I.P.C. The necessary ingredients to constitute an offence punishable under Section 304B I.P.C. are as follows: i) death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances; ii) such death must have been taken place within 7 years after her marriage; iii) it must be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband; iv) that such harassment or cruelty is for, or in connection with, demand of dowry. 11. P.W.6 is the one of the mediators who was present at the time of inquest conducted by the Mandal Revenue Officer on 7.8.1996. Ex.P5 is the inquest report. The inquest panchayatdars opined that the deceased died due to burn injuries. P.W.7 is the Doctor, who conducted autopsy on the deadbody of the deceased and issued Ex.P6-post mortem certificate. The Doctor opined that the cause of the death of the deceased is due to burn injuries. Therefore, from the evidence of P.Ws.6 and 7, and the contents in Exs.P5 and P6, it is established that the death of the deceased is unnatural, occurred otherwise than under normal circumstances. Admittedly, marriage of the deceased with the accused was performed about 7 months prior to her death. Therefore, the first and second ingredients to constitute the offence punishable under Section 304B I.P.C. have been established beyond reasonable doubt. 12. As regards the third and fourth ingredients of the offence under Section 304B I.P.C., as rightly pointed by the learned counsel appearing for the appellant, Ex.P12, which is the dying declaration recorded by the learned Magistrate P.W.12, would not disclose about the accused demanding additional dowry. P.W.1 is the father and P.W.2 is the brother, of the deceased. Admittedly, P.W.2 did not state anything with regard to the accused demanding additional dowry or the subjecting the deceased to harassment or cruelty. Therefore, P.W.1 is the only witness to speak about the demand of additional dowry by the accused. When a case rests upon the evidence of a solitary witness, the law is well settled that it must be unimpeachable, true and trustworthy. If his evidence is put in the category of ‘wholly reliable’, then law does not require any corroboration to base a conviction on the solitary testimony of the witness. 13. P.W.1 has not lodged the complaint immediately after receipt of intimation about the deceased sustaining the burn injuries. The deceased was admitted in hospital on 3.8.1996 due to burn injuries and died on 6.8.1996. It is not in dispute that P.W.7-Doctor who conducted autopsy over the deadbody of the deceased, opined that the deceased sustained 100% burn injuries and her death was due to burn injuries. The inquest mediators also opined in the inquest report Ex.P5 that the deceased died as a result of burn injuries. No doubt, P.W.1 stated that the deceased informed him orally about the accused harassing her to bring additional dowry. But, on his own showing, that appears to be improbable because he admitted that when he went to the hospital, the deceased was not in a position to speak. This version appears to be more probable because the deceased sustained 100% burn injuries all over her body. If really there was any harassment with regard to additional dowry, P.W.1 would have lodged the complaint immediately after coming to know about the deceased sustaining the injuries. That was not done so. P.W.1 appears to have made an improvement after the death of the deceased with regard to demand of additional dowry of Rs.10,000/- after the death of the deceased. Further more, P.W.2, who is none other than brother of the deceased, was living along with his father and the family matters would be known to him. He categorically stated that the accused never demanded him any additional dowry at any point of time, but on his own accord, he gave Rs.1,000/- voluntarily to the accused. If really there was a demand of additional dowry by the accused, it would be known to P.W.2, who was living with his father P.W.1. In view of the above, the evidence of P.W.1 cannot be put in the category of ‘wholly reliable witness’ so as to base the conviction. When the evidence is neither wholly reliable nor wholly unreliable, then his evidence requires corroboration. There is no such corroboration to his evidence. Therefore, there is no difficulty in rejecting the evidence of P.W.1 with regard to the accused demanding additional dowry. 14. Now, the only evidence remains on record is Ex.P12, which is dying declaration recorded by P.W.12- Magistrate on the request of police. Under Section 32(1) of the Indian Evidence Act, 1872, a statement either verbal or written given by a person as to cause of his death or any of the circumstances resulting in his death, is admissible in evidence in cases in which the cause of that person’s death comes into question. It is also well settled that once the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased, then conviction can be maintained solely basing on the dying declaration. If the dying declaration is brought into existence under suspicious circumstances, then only prudence requires that it should be corroborated on material particulars. On this aspect, it is pertinent to refer to a decision in Khushal Rao v. State of Bombay[1], wherein it is held thus: (para 16). “On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (a) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” The law is settled that when a statement falls under Section 32(1) of the Indian Evidence Act, 1872, it would apply equally not only to the homicidal deaths but also to suicidal deaths. 15. To constitute an offence punishable under Section 306 I.P.C., there must be abetment to a person to commit suicide. ‘Abetment’ is defined under Section 107 I.P.C., which requires the following ingredients. A person abets the doing of a thing who- (a) instigates any person to do that thing; or (b) engages with one or more persons in any conspiracy for the doing of that thing provided an illegal act or omission takes place- (i) in pursuance of that conspiracy, and (ii) in order to the doing of that thing; or (c) intentionally aids, by any illegal act or omission, the doing of that thing. Explanation (2) to 107 I.P.C. says that if the acts of the accused facilitated the deceased to commit suicide, it can be said to be intentional aiding. Therefore, there must be instigation to do an act or thing or that there must be conspiracy, or that there must be intentional aiding. 16. The true translation of Ex.P12 reads thus: “I myself poured and set fire to me. Having disgusted as to why should I live, I set fire to me. I got name that I am not a good person. My husband used to look after me well. A panchayat was held to me and my husband. Then, my husband uttered ‘If you die, I will be fine, die’. That is why, having disgusted, I poured kerosene on me and set fire. That is all, and nothing more to say.” A perusal of the above would clearly go to show that there is a direct instigation by the accused to the deceased to die stating that if she dies, he would be fine. Therefore, the said attribution can be said to be instigation to the deceased to commit suicide. Because of that utterance made by the accused, the deceased committed suicide. It is not the case of the accused or prosecution that the deceased was tutored or prompted by some other person to give such a statement. As seen from the evidence of P.W.12, Ex.P12 was given by the deceased voluntarily and the Doctor made an endorsement on Ex.P12 to the effect that the patient was conscious and coherent at the time of recording the statement. Therefore, Ex.P12 can be said to be a true and correct statement given by the deceased in a conscious and coherent state of mind. The cause of death, as spoken by the deceased in Ex.P12, was due to the instigation made by the accused. Therefore, the offence committed by the accused falls under Section 306 I.P.C. In view of the fact that the offence punishable under Section 306 I.P.C. is a minor offence when compared to the offence punishable under Section 304B I.P.C., where minimum sentence is prescribed, framing of charge at this point of time is not required and non-framing of charge would not in any manner cause prejudice to the accused in setting up his defence. 17. In view of the foregoing discussion, the prosecution failed to establish the guilt of the appellant/accused of the offence punishable under Section 304B I.P.C. and the conviction and sentence recorded by the trial court under the said Section are liable to be set aside, but the evidence on record made out a case for the offence punishable under Section 306 I.P.C. against the appellant/accused. 18 In the result, the conviction and sentence recorded by the trial Court against the appellant/accused of the offence punishable under Section 304B I.P.C. are set aside. The appellant/accused is found guilty of the offence punishable under Section 306 I.P.C., accordingly convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- (Rupees five thousand only) in default to suffer simple imprisonment for a period of one month. The period of remand underwent by the appellant/accused during investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C. 19. The Criminal Appeal is, accordingly, partly allowed. --------------------- (K.C.Bhanu, J.) 28.01.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1331 OF 2001 Date: 28.1.2010 Between: E.Anjaneyulu ….Appellant/accused and State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1331 of 2001 28.1.2010 [1] AIR 1958 SUPREME COURT 22