THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1625 OF 2004 ORDER: This appeal at the instance of the State is directed against the acquittal of the accused in S.C.No.214 of 2001 by the VII Additional Metropolitan Sessions Judge, Hyderabad on 22.03.2002. The respondent/accused was prosecuted for the offences under Sections 498-A and 306 IPC alleging that on 30.05.2000 during night time a quarrel took place between the deceased and her husband, who is the accused, with regard to the accused demanding the deceased to arrange his marriage with the deceased’s cousin sister Sumalatha and when the accused wants to leave the house as the deceased did not agree for his proposal, she brought back the accused and informed that she herself leave the house or she would die. Upon which, the accused asked her to die, if she wants to die, thereupon the deceased poured kerosene on herself and threatened to lit match sticks, but she did not lit. Thereupon the accused asked her to lit match stick, upon which the deceased lit fire with match stick and got burnt herself. On hearing the hue and cries, the neighbours came and shifted the deceased to Osmania General Hospital, Hyderabad for treatment. On 31.05.2000 at about 10.00 A.M, P.W.9 received the information about the admission of the deceased in Osmani General Hospital and proceeded to the hospital and recorded her statement and registered the case in Crime No.72 of 2000 under Section 498-A IPC. He also handover the requisition issued by the Inspector of Police to the XII Metropolitan Magistrate, Hyderabad for recording the dying declaration of the deceased. The said Magistrate has recorded the dying declaration. On 05.06.2000, P.W.9 received the death intimation and he conducted the inquest over the dead body of the deceased and after completion of investigation filed the charge sheet against the accused for the above said offences. The learned Additional Metropolitan Sessions Judge has framed the charges under Sections 498-A and 306 IPC against accused and he pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined 9 witnesses i.e. P.Ws.1 to 9 and got marked Exs.P.1 to P.13 and M.Os.1 to 8. On behalf of the accused, Exs.D.1 to D.3 were marked, but no oral evidence was adduced on his behalf. The learned Additional Metropolitan Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused not guilty for the charges under Sections 498-A and 306 IPC and thereby acquitted the accused. Aggrieved by the said acquittal, the State has preferred the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 498-A and 306 IPC against the accused beyond reasonable doubt? P O I N T: The Additional Public Prosecutor has pleaded that immediately after receipt of the information about the admission of the deceased with burns in Osmania General Hospital, Hyderabad, P.W.9 has proceeded to the hospital and recorded her statement Ex.P.10, thereafter issued the FIR basing on the said statement. In the meanwhile, a requisition was sent to Magistrate, P.W.6 for recording the dying declaration and he recorded dying declaration Ex.P.8. In the statements recorded by P.W.6 and P.W.9 the deceased has categorically stated about the unlawful demand made by the accused to arrange his marriage with her cousin sister Sumalatha and on her refusal, he tried to leave the house and she threatened him that she will die and the accused instigated the deceased to die by letting fire to her and the said statements are supported by the oral evidence of P.Ws.1 to 3 to whom she has disclosed the reasons for committing suicide by her. Thus, the prosecution could establish the charges under sections 498-A and 306 IPC against the accused. He further pleaded that the lower Court erred in discarding the dying declaration Ex.P.8 recorded by P.W.6. The respondent’s counsel on the other hand has pleaded that the dying declaration recorded by P.W.6 is not reliable and the learned Metropolitan Sessions Judge has rightly discarded the dying declaration Ex.P.8 and P.Ws.1 to 3 are interested witnesses, as such their evidence cannot be relied upon. She further pleaded that even if the allegations made against the accused are deemed to have been proved, they do not constitute any offence under Section 498-A and 306 IPC as there is no harassment or cruelty on the part of the accused towards the deceased and there is no instigation or aid by the accused to deceased to commit suicide. Therefore, the learned Metropolitan Sessions Judge has rightly acquitted the accused. The main allegations made against the accused are that on 30.05.2000, he came late to the house and demanded the deceased to arrange his 2nd marriage with her cousin sister Sumalatha and when she refused, he wanted to leave the house, upon which the deceased has requested him to come to the house and there is no necessity for him to leave the house and she will leave the house or die and poured kerosene on herself. Then the accused has stated to her that he will see how she will die and when she lit match sticks and thrown on the floor, he instigated her to set fire to herself if she wants to die. Thereupon, the deceased set fire to herself and sustained burn injuries and subsequently died in the hospital. To establish the allegations made against the accused, the prosecution has examined P.Ws.1 to 3. P.W.1 is the brother of the deceased. According to him on 30.05.2000 his sister got burn injuries. He went to the hospital on the next day after knowing about her admission in the hospital. When he asked her as to how she sustained burn injuries, she told that on 30.05.2000 evening there was a quarrel between herself and the accused and the accused beat her in that regard taking objection for not opening the door at his knock and also pressurizing her to get him married to Sumalatha, who is her cousin sister. As the deceased did not concede to his demand, he prepared to leave the house taking his clothes in his bag, seeing this the mother of the accused also blamed his sister that on account of his sister, her son leaving the house, on that his sister requested the accused and brought him back to the house. Thereafter, the accused demanded his marriage with her cousin sister, as she did not accept his demand, he again beat her. On that his sister felt annoyed and threatened to immolate herself. The accused did not care for said threat, on that she poured kerosene on herself, even then the accused did not made any attempt to prevent her and on the other hand said that she cannot threaten him. On that his sister litted two match sticks and thrown it on the ground. On that also the accused did not care for his sister and told her that he cannot threaten and he does not mind even if she lit fire to herself, upon which his sister littted fire to herself and after litting herself also the accused beat her and when she ran out, the neighbours snubbed her flames by pouring water on her. He further stated that the accused was insisting his sister since 6 months prior to her demise for arranging his marriage with her cousin sister Sumalatha and his sister died due to burn injuries on 05.06.2000. P.W.2, who is another brother of the deceased, also supported the version of P.W.1 with regard to deceased disclosing him about the acts of the accused, which led her to set fire to herself. P.W.3, who is the close relative of the deceased, has also stated about his going to the hospital after coming to know about the admission of the deceased in the hospital and on enquiry, she told him about the acts of the accused, which led her to set fire to herself. The respondent’s counsel has pleaded that P.Ws.1 to 3 are interested witnesses and their evidence cannot be relied upon. She further pleaded that they visited the hospital on the same day of the incident and not on the next day. Therefore, their version that they visited the hospital on the next day of the incident and enquiring the deceased about the manner, in which she sustained burn injuries, and her disclosing the reasons to them cannot be relied upon. P.W.1 in the cross-examination has stated that he reached the hospital at 7.00 A.M after learning that his sister was joined in the hospital and he was allowed into the hospital one hour after reaching there and when he went inside the hospital, he found his sister sleeping, hence he returned back from hospital. His mother was found at his sister when he went to her. At about 11.00 or 12.00 noon of that day, he has seen Bahadurpura police in the said hospital. He did not state in his statement before the police as to his receiving information at 6.00 A.M. and going to the hospital at 7.00 A.M. He did not state in his statement to the police as in Ex.D.1 that on the very night of 30.05.2000 they came to know of joining of his sister in Osmania General Hospital, Hyderabad with burn injuries and they went to hospital immediately on the same night. P.W.2 also admitted in the cross-examination by the time himself and his mother reached the hospital, none of their other relatives reached the hospital. He also admitted that he did not state before the police as in Ex.D.2 that they reached hospital on the same night of the occurrence coming to know of the joining of his sister with burn injuries. He did not state in his statement to the police as in Ex.D.3 that on the hue and cry of his sister, her mother-in-law snubbed the flames by pouring the water. P.W.3 was declared as hostile when he has stated that he did not held any elderly mediation with regard to the disputes that has arisen in between the accused and the deceased. In the cross- examination by Additional Public Prosecutor, he has stated that he did not state to the police as in Ex.P.1 that the accused used to harass and tease the deceased for arranging his 2nd marriage with her cousin sister and when it was came to his notice, he admonished the accused and got dropped his 2nd marriage proposal. Apart from the oral evidence of P.Ws.1 to 3, the 1st dying declaration was recorded by P.W.9 i.e. Ex.P.10 and thereafter P.W.6 has recorded the dying declaration Ex.P.8. According to P.W.9 on 31.05.2000 at 10.00 A.M. he received a phone message from Osmania General Hospital, Hyderabad as to admission of one Gayatri with burn injuries in the said hospital. Hence he proceeded to the hospital at 10.20 A.M and recorded the statement of said Gayatri, which is Ex.P.10 and he obtained the right thumb impression on Ex.P.10, but he did not obtain any endorsement of the duty doctor on Ex.P.10 about the condition of the patient. Thereafter, he returned to the police station and registered the case in Crime No.72 of 2000 under Section 498-A IPC and issued the FIR. Thereafter, he took up investigation. At the time of his visit to hospital to record the statement of Gayatri the XII Metropolitan Magistrate, Hyderabad was available in the said hospital and he has given the requisition Ex.P.5 to him to record the statement of said Gayatri. The said requisition was drafted by the Inspector of Police and he delivered it to the XII Metropolitan Magistrate, Hyderabad. The XII Metropolitan Magistrate, Hyderabad is examined as P.W.6. According to him on 31.05.2000 at 10.45 A.M. he received a requisition from Inspector of Police, Bahadurpura police station to record the dying declaration of Gayatri admitted in Osmania General Hospital with burns at his office. Immediately he proceeded to the hospital at 11.10 A.M. and identified the patient with the help of the duty doctor. He obtained certificate as to the condition of said patient Gayatri with regard to her coherency and fitness and mental soundness to give the statement. Thereafter, he put some questions to her to satisfy himself about for her mental condition and her fitness to give statement. After satisfying himself with her mental condition and her fitness to give statement, he recorded the statement of deceased from 11.15 A.M. to 11.40 A.M. and obtained her right hand thump impression. He also obtained the endorsement of the duty doctor with regard to her mental condition and fitness of her mind through out the recording her statement. Ex.P.5 is the requisition received by him and Exs.P.6 and P.7 are the endorsements made by the Duty doctor on the dying declaration recorded by him and Ex.P.8 is the dying declaration recorded by him. In the cross-examination he has stated that Ex.P.5 bears an endorsement of the doctor and in the said endorsement it is not mentioned about the mental condition of the patient and her fitness to give statement. In Ex.P.8 he did not mention that the declarant is in fit mental condition to give statement. He cannot say the designation of the duty doctor who endorsed the Exs.P.6, P.7 on P.8. He cannot say that the proper authority to speak about the mental condition of the patient will be Neuro Physician or expert in Mental disease. He do not know the name of the doctor who has endorsed Exs.P.6 and P.7. The learned Additional Metropolitan Sessions Judge discarded the dying declaration Ex.P.10 recorded by P.W.9 on the ground that the endorsement of the duty doctor with regard to the mental condition of the patient was not obtained on Ex.P.10 by P.W.9 at the time of recording the statement of the deceased. The learned Additional Metropolitan Sessions Judge discarded the dying declaration Ex.P.8 recorded by P.W.6 holding that the same is not reliable. The learned Additional Metropolitan Sessions Judge has observed that the duty doctor, who made endorsements Es.P.6 and P.7 on Ex.P.8 with regard to mental condition of the patient is not a fit person to speak about the mental condition of the patient and it is the doctor, who treated the patient i.e. Plastic Surgeon or Neoro physician are the best persons to speak about the state of mind of the patient. In “Shanti v. State of Haryana[1]” the certification about the fitness of the maker of the declaration at the relevant time was challenged on the ground that the Doctor who gave the certificate was not the treating doctor of the deceased nor was there any entry made in the bed head-ticket about the certificate issued. The Apex Court held that it was not necessary that only a treating doctor must certify fitness of the maker for making statement and further observed that the doctor was in any way interested in the outcome of the case and the declaration only shows the clarity of mind of the maker, thereby rejected the said contention. In the present case, the endorsements Exs.P.6 and P.7 were made on the dying declaration by the duty doctor that the patient is conscious, coherent and mentally sound to give the statement before the commencement and after completion of the recording of the statement by the Magistrate. Therefore, the said observation made by the learned Additional Metropolitan Sessions Judge is liable to be set aside. The learned Additional Metropolitan Sessions Judge has further observed that since the declarant has sustained 90% burn injuries, she is not in a fit condition to give statement as there would be possibility of mental imbalance and there is likelihood of its effect on mouth and speech of the person, but there is no evidence on record in that regard to show about the mental imbalance and its effect on the mouth of the declarant before the Sessions Judge. In “Suresh v. State of M.P.[2]”, the Apex Court held that a person sustained cent per cent burn injuries of second degree may be in a fit state of health to make dying declaration. In “Sree Vijayakumar v. State[3]”, the Apex Court held that even though the deceased sustained 90% burn injuries in view of unequivocal evidence of the Magistrate that the deceased was conscious and was able to answer the questions and certificate of the doctor who was with him also obtained on the dying declaration, the contention of the appellant that the deceased was not in a fit state of mind to give the dying declaration cannot be accepted and on that ground that the dying declaration cannot be held unreliable. The learned Additional Metropolitan Sessions Judge has also observed that non-examination of the doctor, who has made endorsements on Ex.P.8 with regard to consciousness of the declarant in Ex.P.8 is fatal to the case of the prosecution by relying upon a decision rendered in “State of Karnataka v. Nagamma (1999 (1) ALT (Criminal) 475)” In “Shanmugam v. State of Tamil Nadu[4]” the Apex Court held that when the Magistrate, who recorded the statement was satisfied that the victim was conscious enough to make statement, and that the doctor, in whose presence the dying declaration was recorded and who also endorsed on it, was not examined does not effect the evidentiary value of the declaration. In “Nallapati Sivaiah v. Sub-Divisional Officer, Guntur[5]” the Apex Court held that it may be desirable to examine the Doctor, who certified the condition of the person, who made the statement, but failure to examine the Doctor is not fatal. The Apex Court has referred to a decision of the constitution bench in “Lasman v. State of Maharashtra (2002 (6) SCC 710). In “Hyder Ali v. State[6]” the Division Bench of this Court has held that failure to examine doctor who certified about the condition of victim before giving declaration is not fatal. Thus, the non examination of the doctor, who made endorsements Exs.P.6 and P.7 on Ex.P.8 dying declaration is not fatal for relying upon the dying declaration recorded by P.W.6. The learned Additional Metropolitan Sessions Judge has observed that Exs.P.6 and P.7 do not disclose abut the fitness of mind of the deceased while recording the dying declaration. The duty doctor, who made the endorsements Ex.P.6 and P.7 has categorically mentioned that the patient is conscious, coherent and mentally sound to give the statement and the Magistrate, who recorded the statement of the deceased also satisfied about the condition of the patient to give statement by putting the preliminary questions to her. In “Babu Ram v. State of Punjab[7]” the Apex Court held that the evidence of the doctor that the deceased was in a fit state of mind when she made the statement and the judicial Magistrate who recorded the dying declaration also stated that he enquired from the doctor about her mental condition and finding her fit to give statement and the 2nd dying declaration recorded by the police giving the same version, the High Court was right in relying upon both the dying declarations. In “Laxman v. State of Maharashtra[8]” the Apex Court held that where the medical certificate indicated that the declarant was conscious, it was indeed a hypertechnical view to say that there was no certification as to fitness of state of mind of the declarant. More so, when the fitness of the declarant’s state of mind was proved by the testimony of the Magistrate who had recorded the dying declaration. In “P.V.Radhakrishna v. State of Karnataka[9]” the Apex Court held that if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such a dying declaration will not be invalid solely on the ground that his condition is not so certified by the doctor. In “Muthu Kutty v. State[10]” the Apex Court held that where the medical certificate indicated that the patient was conscious, it would not be correct to say that there was no certification as to the state of mind of the declarant. In “Ongole Ravikanth v. State of A.P.”[11] the Apex Court held that Courts must always be on guard to see that dying declaration was not the result of either tutoring or prompting or a product of imagination. Further, it is the duty of the Courts to find that deceased was in a fit state of mind to make the dying declaration and in order to satisfy itself Courts have to look for medical opinion. It was further observed that in the above said case the dying declaration was recorded by P.W.2, Judicial Magistrate, in presence of duty doctor P.W.13, after satisfying himself as regards her fitness to give the statement and the endorsement to that effect was made by the doctor and thump impression of the deceased was obtained on the same. Hence the dying declaration can be relied upon. Therefore, in view of the above said decisions, when the doctor, who has made the endorsements Exs.P.6 and P.7, has categorically mentioned that the patient is conscious, coherent and mentally sound to give statement before commencement of the dying declaration and after completion of the dying declaration, it is too hypertechnical to say that there is no certification of the doctor as to the fitness and state of mind of the declarant. Thus, the finding recorded by the learned Additional Metropolitan Sessions Judge that the doctor has not certified about the mental fitness of the deceased at the time of recording the dying declaration cannot be a ground to discard the said declaration. Thus, in view of the above observations the dying declaration Ex.P.8 can be relied upon to know the cause of death of the deceased. The next contention of the respondent’s counsel is that even if the dying declaration is relied upon, the allegations made in the dying declaration do not constitute any offence under sections 498-A and 306 IPC. In Ex.P.8 the deceased has stated that her paternal uncle expired. So, she and her husband went for funerals. After funerals, they returned to home at 6.00 P.M, her husband dropped her and again went away. She prepared food after taking bath. Her mother-in- law also returned from funerals. She served food to her mother-in-law. At 10.30 P.M her husband returned and asked her to serve the food. Then her husband whispered jokingly that he wanted to marry Sumalatha since she is very young. Then she questioned him why should he talk about that young child, then her husband requested to ask her. Then she felt angry with her husband as to why he behaves like that. Then her husband beat her on her head from behind. When he beat her, she threatened him. He pushed her and beat her twice. Her husband by keeping his clothes wanted to go away from the house and asked money from his mother. She replied that she has no money. Her mother-in-law questioned that why her husband and herself quarreled with each other. Then her husband left the place, after waiting for sometime, she also left behind him. Then she requested him to come back to their house, but he refused to come and when she tried to take him, he slapped her. Even then she was struggling to take him back, her husband was abusing stating that he would not come. She asked him to stay in his house and there is no necessity for him to go out of his house and said that she would leave the house. When she said like that, he asked her to go out of the house. Then she told him that she would not hear him and that all of them would be happy if she die. While stating like that, she came inside the house and poured kerosene from the stove on her. Then her husband came inside and ask her to die,