IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY THE TWELVETH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 600 OF 2003. Between: Shaik Khaja … Appellant V/s. The State of Andhra Pradesh Represented by its Public Prosecutor, High Court of AP Hyderabad … Respondent Counsel for the appellant : Sri M.R.M. Chalapathi Counsel for the Respondent ; Addl.Public Prosecutor The Court made the following judgment : (follows 2nd page) THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 600 OF 2003. O R D E R : This Criminal Appeal arises out of the judgment dated 19-9- 2002 passed in SC.No. 344 of 2000 by the Assistant Sessions Judge, Nalgonda, whereby and whereunder the appellant was found guilty for the offences under section 498-A and 306 of IPC and he was convicted under section 235 (2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.3000/- in default to suffer simple imprisonment for one year for the offence under section 498-A of IPC. He is further convicted and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.5000/- in default to suffer simple imprisonment for two years and directed to run both the sentences concurrently and the period of pre-detention period was set off. 2. The facts leading to the filing of this Criminal Appeal can be summarized as follows : The Sub-Inspector of Police, Nakkrekal filed charge sheet in Cr.No.122/99 for the offences under section 498-A and 306 of IPC. The accused and deceased are the husband and wife. On 27- 10-1999 at 04:50 p.m. LW-16 received telephonic information from Govt.Hospital, Nakkrekal about the incident that the deceased doused herself in kerosene and set fire and she was admitted in Hospital with severe burn injuries. Immediately, LW-16 rushed to the Govt.Hospital, Nakkrekal and recorded the statement of injured. She had informed that she is a resident of Nakrekal and working as Nurse in Dr.Veerabrahmam Hospital. She married the accused and it is a love marriage and they lived together. A son and daughter born out of lawful wedlock. Thereafter, two years back, the accused married another woman. After the second marriage, he started to harass the deceased on one pretext or the other and it is alleged that he demanded dowry and he wanted to get rid of her by giving divorce. She further stated that he was forcing her to leave the house. As the ill treatment increased, she could not bear the harassment and vexed on her life. Then on 27-10-1999 at 04:30 p.m. she doused herself in kerosene and set fire. LW-16 recorded the statement of the victim and he filed requisition before the Judicial Magistrate of First Class, Nakkrekal to record dying declaration. LW-11 the Judicial Magistrate of First Class, Nakkrekal visited Govt.Hospital, Nakkrekal and recorded dying declaration of victim. LW-12 attended the injured while recording dying declaration. Later on the victim was referred to Govt.Hospital, Nalgonda for better treatment, as her condition was serious. On 28-10-1999 LW-16 visited the scene of offence and conducted scene of offence panchanama. He had drawn a sketch map in the presence of LWs 6 and 7. He seized kerosene tin, which was used in the commission of offence in the presence of same panchas. Panch chits were pasted. On 28-10-1999 he received intimation that deceased died while undergoing treatment at Govt. Headquarters Hospital, Nalgonda. Therefore, he filed a memo for alteration of section of law and for inclusion of section 306 of IPC. He submitted the requisition to the Executive Magistrate, Mandal Revenue Officer, Nakkrekal for conducting inquest over the dead body of the deceased. LW-13 visited the Govt.Headquarters Hospital, Nalgonda and held inquest over the dead body of the deceased in the presence of LWs 8 to 10. The dead body was subjected to postmortem examination by LWs 14 and 15 the team of doctors. They conducted autopsy and opined that the death occurred due to “Hypo- volumic shock due to burns”. Then the Investigating Officer examined LWs 1 to 5 and recorded their statements. The accused was arrested on 31-10-1999 and sent to the Court for judicial custody. The investigation has established that the accused had committed offences punishable under section 498-A and 306 of IPC. 3. The learned Judicial Magistrate of First Class, Nakkrekal has taken the case on file and duly registered as PRC.No. 7 of 2000for the offences under section 498-A and 306 of IPC. After appearance of the accused, the learned Magistrate complied the provisions of section 207 Cr.P.C., and thereafter committed the case to the Court of Session as per section 209 (a) and (c) of Cr.P.C. and as per section 209 (d) Cr.P.C., the learned Magistrate notified the Public Prosecutor of the commitment of the case to the Court of Session. 4. On receipt of records, the learned Sessions Judge, Nalgonda district had assigned SC.No.344 of 2000 and made over the same to the Court of Assistant Sessions Judge, Nalgonda for disposal according to law. 5. After appearance of the accused, the Assistant Sessions Judge heard on the point of charges and thereafter examined him alleging the substance of accusation and framed charges under section 498-A and 306 of IPC. Accused pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined PWs 1 to 11 and marked Exs.P1 to P11. On behalf of the accused, no oral and documentary evidence was adduced. But marked MO-1 Kerosene tin. 7. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C., for the incriminating evidence appearing against him. Accused pleaded not guilty and did not adduce any defence evidence on his behalf. 8. On hearing both sides and on appreciation of oral and documentary evidence placed on record, the Assistant Sessions Judge found the appellant guilty for the offences under section 498-A and 306 of IPC and he was convicted under section 235 (2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.3000/- in default to suffer simple imprisonment for one year for the offence under section 498-A of IPC. He is further convicted and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.5000/- in default to suffer simple imprisonment for two years and directed to run both the sentences concurrently and the period of pre-detention period was set off. 9. Aggrieved thereby, the appellant filed the present Criminal Appeal. 10. Heard the learned counsel for the appellant as well as Sri Ramesh representing the learned Additional Public Prosecutor for the State. 11. It is an admitted fact that the deceased committed suicide by pouring kerosene in her matrimonial home. It is the case of the prosecution that the appellant-accused rescued her and admitted her in hospital. On the basis of the statement given by the deceased, the Police registered FIR in Cr.No.122 of 1999 for the offence under section 498-A of IPC. In the statement given to the police she stated that due to misunderstanding in connection with the second marriage by the appellant, there was harassment and subsequently ill-feelings developed and she also stated that the appellant demanded dowry. 12. The learned counsel for the appellant submitted that being it is a love marriage, the question of demand of dowry does not arise and further she has not specifically stated what type of harassment she had meted out in the hands of the appellant and further more Ex.P6 dying declaration, which was recorded by the Judicial Magistrate of First Class, Nakkrekal, runs as follows: Please tell me as to how you got burnt ? Ans: Today my husband told me that he does not require me as he has another wife and a son through her. So I did not want to live. Hence, I poured kerosene on myself at 3 p.m. and burnt myself. The above statement is read over and explained to Smt.Shabina in Urdu and she admitted the same to be true and correct. The doctor has also given certificate regarding the consciousness and coherentness of the person to give statement. 13. The FIR was registered by PW-7 and he has admitted in the cross-examination that the doctor was not available to certify that the said statement was given in a fit condition by the deceased. There was lack of discrepancies between FIR and the dying declaration. In the said dying declaration, the deceased has not implicated the appellant-accused either to attract the offence under section 498-A IPC or 306 IPC. 14. In view of the foregoing reasons, the prosecution has miserably failed to bring home the guilt of the appellant for the offences under section 498-A and 306 IPC. 15. In the result, the Criminal Appeal is allowed and the conviction and sentences recorded by the Assistant Sessions Judge, Nalgonda, be and is hereby set aside. The fine amount if any shall be refunded to the appellant. ______________________ JUSTICE RAJA ELANGO. 12-11-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 6 0 0 OF 2003 Circulation No. 14 Date:12-11-2010 Court Master: I s L Computer No. 43