Telangana High Court
Bodusu Narsimha And Anothers vs State Of Ap., Rep.By Its P.P on 15 February, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
CRIMINAL APPEAL No.156 of 2012
JUDGMENT:
This Criminal Appeal is filed by the appellants / A1 and A2 aggrieved by the judgment of conviction and sentence passed by the IV Additional District & Sessions Judge (Fast Track Court) at Mahabubnagar in S.C.No.114 of 2010 dated 21.02.2012 convicting them for the offence under Section 304-B of IPC to rigorous imprisonment for a period of seven (07) years each and for the offence under Section 4 of Dowry Prohibition Act (for short "DP Act") to rigorous imprisonment for a period of six (06) months each and fine of Rs.500/- in default to suffer simple imprisonment for one month each, which were directed to run concurrently.
2. The case of the prosecution in brief was that on 11.06.2009 at 11:30 hours, the mother of the victim woman lodged a report in PS Talakondapally stating that her younger daughter Bodasu Vasantha @ Sujatha aged 20 years was given in marriage to one Bodasu Narsimha, S/o.Krishnaiah, R/o.Rampur Village, Mahabubnagar District, three months prior to the date of her giving the report. At the time of marriage, they had given net cash of Rs.40,000/- towards dowry and promised to give two tulas of gold at a later date, as they were unable to provide the same at the time of marriage due to their poor financial 2 Dr.GRR, J crla_156_2012 condition. Her daughter Vasantha was harassed by her husband Bodasu Narsimha (A1) and her father-in-law Bodasu Krishnaiah (A2) demanding the two tulas of gold, which was agreed to be paid at the time of marriage and subjected her daughter to mental agony. They also beat her. Unable to bear their harassment, her daughter Vasantha came to their house at Chinnapally Village 20 days prior to the date of her report. Six days ago, her son-in-law came to their house at Chinnapally Village and asked them to send Vasantha along with him and reiterated his demand for arranging two tulas of gold, which was already promised. Upon which, the complainant tried to convince him stating that the demand of two tulas gold would be fulfilled in due course, as their financial condition was not good. Upon that, her son-in-law Narsimha left the house leaving his wife Vasantha with them. Three days ago i.e. on 09.06.2009, the brothers-in-law of her son-in-law by name Anjaiah, R/o.Vasudevpur and Srinu, R/o.Manyagudem Village came to their house and took Vasantha along with them assuring that they would see that Vasantha would not be harassed. While so, one Jangaiah, R/o.Rampur Village came to them on 11.06.2009 and told that Vasantha poured kerosene and set herself ablaze. Upon which, the complainant rushed to Rampur Village and came to know that her daughter Vasantha was shifted to Amangal Government Hospital for treatment and that was further referred to Osmania General Hospital, Hyderabad for better treatment.
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3. Basing on the said report lodged by the mother of the victim, the Sub- Inspector of Police (for short "SI"), PS Talakondapally registered a case in Crime No.68 of 2009 under Section 498-A of IPC. The Sub-Inspector of Police recorded the statements of the complainant as well as the other witnesses, visited the scene of offence at Rampur Village, conducted panchanama before the panch witnesses, drafted the crime detail form and rough sketch and seized 5 liters of empty kerosene plastic can used by the deceased for setting herself ablaze. The dying declaration of the deceased was recorded by the I Metropolitan Magistrate, Hyderabad at Osmania General Hospital on 11.06.2009 at 09:30 PM. On 24.06.2009 at 08:45 hours, on receipt of death intimation of the victim Bodasu Vasantha @ Sujatha, the SI altered the Section of Law from 498-A of IPC to Section 304-B of IPC. The Tahsildar, Talakondapally conducted inquest over the dead body of the deceased in the presence of panch witnesses. Subsequently, the Medical Officer of Osmania General Hospital conducted postmortem examination. The Associate Professor of Department of Forensic Medicine of Osmania Medical College issued PME report opining that the cause of death was due to burns. Subsequently, the Deputy Superintendent of Police of Shadnagar conducted investigation and filed charge-sheet against A1 and A2 for the offences punishable under Sections 304- B of IPC and Sections 3 and 4 of DP Act, 1961.
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4. The Judicial Magistrate of First Class, Kalwakurthy had taken cognizance of the case and committed it to the Court of Sessions. The same was numbered as S.C.No.114 of 2010 and on made over of the case by the Principal Sessions Court, the trial was conducted by the IV Additional District & Sessions Judge (Fast Track Court), Mahabubnagar.
5. Charges were framed for the offences under Section 4 of DP Act, Section 498-A read with Section 34 of IPC, Section 304-B read with Section 34 of IPC and Section 306 of IPC read with Section 34 of IPC against A1 and A2. Both the accused pleaded not guilty and claimed to be tried.
6. During the course of trial, the prosecution got examined PWs.1 to 11 and got marked Exs.P1 to P11 and M.O.1. A part of 161 Cr.P.C. statements of PWs.1 and 4 were marked as Exs.D1 and D2 on behalf of the defence. After the prosecution evidence was closed, the accused examined DWs.1 and 2 on their behalf. The defence taken by the accused was that A1 sustained a road traffic accident while returning to his village and he was not in a position to harass his wife prior to the incident.
7. On considering the oral and documentary evidence on record, the learned IV Additional District & Sessions Judge (Fast Track Court) at Mahabubnagar, by placing reliance on the dying declaration of the deceased, convicted the accused persons for the offences under Sections 304-B of IPC and Section 4 of 5 Dr.GRR, J crla_156_2012 DP Act and sentenced them as stated earlier and recorded that as the accused were convicted under Section 304-B of IPC, no conviction need to be recorded for the offences under Sections 498-A of IPC and 306 of IPC.
8. Aggrieved by the said conviction and sentence, the accused A1 and A2 preferred this appeal contending that the trial court erred in convicting the appellants under Section 304-B of IPC and Section 4 of DP Act. The trial court failed to see that the ingredients to constitute the said offences were not proved by the prosecution by any legal and reliable evidence. The trial court erred in placing reliance on the dying declaration, Ex.P5 recorded by PW.7, the I Metropolitan Magistrate, Hyderabad. There were clear indications that Ex.P5 was neither true nor voluntary, but was the result of tutoring by her mother PW.1 and others. The statement of the deceased recorded by the SI of Police was not produced. The trial court erred in relying upon the said statement, even though it was not proved or marked. In fact, there was no consistency in the two statements and it was for that reason, the same was not produced before the Court. The trial court erred in relying upon the interested and discrepant testimonies of PWs.1 to 4. The trial court having observed the demeanor of PW.1 in Court, ought to have rejected the prosecution version as false and unreliable. The trial court failed to see that the accused No.1 sustained injuries in an accident and the expression of the accused is appeared to be probable and 6 Dr.GRR, J crla_156_2012 prayed to set aside the judgment of conviction and sentence recorded against the appellants.
9. Heard Sri C.Sharan Reddy, the learned counsel for the appellants - A1 and A2 and the learned Additional Public Prosecutor for the respondent - State.
10. Learned counsel for the appellants contended that there were no direct eye-witnesses to prove the fact of the accused persons harassing the victim demanding dowry of two tulas of gold. PWs.1 and 2 admitted in their cross- examination that they have not informed about the harassment or demand made by A1 and A2 to any one of the village elders or to their relatives. Though the victim survived for a period of 13 days in the hospital after sustaining burn injuries, both PWs.1 and 2 admitted in their cross that the victim was not in a position to speak and that she had not stated to them the reason for her sustaining burns. As per PW.1, she visited Osmania General Hospital at 10:00 PM on 11.06.2009 and lodged the report on the next day, but the FIR was registered on 11.06.2009 at 11:30 AM. The SI of Police had not made any attempt to record the statement of the victim, though she was in the hospital for a period of 13 days. No requisition was given by the Investigating Officer to the Magistrate for recording the dying declaration. The Magistrate stated that on receiving the requisition from the Medical Officer of Osmania General Hospital, he recorded the dying declaration of the victim. The Duty Doctor was 7 Dr.GRR, J crla_156_2012 alleged to have endorsed twice on Ex.P5 Dying Declaration, but the prosecution failed to examine him to prove the physical and mental condition of the victim. Non-examination of doctor was fatal to the case of the prosecution, when there were contradictions in the evidence of the witnesses and when PWs.1 and 2 stated that the victim was not in a position to speak and relied upon the judgments of the Hon'ble Apex Court in Kanchy Komuramma v. State of A.P. 1 and of the High Court of Andhra Pradesh in Bhasker v. State of A.P. 2.
11. Learned Additional Public Prosecutor on the other hand supported the judgment of the trial court contending that after discussing all these aspects, the trial court passed a reasoned order, which would not require any interference by this Court and prayed to dismiss the appeal and to confirm the conviction and sentences recorded by the trial court.
12. On hearing the arguments of both the learned Counsel and the Additional Public Prosecutor, the points that now arise for determination in this appeal are:
i. Whether the dying declaration recorded by the Magistrate can be the sole basis for convicting the accused for the offences under Section 304-B of IPC and Section 4 of DP Act and whether the same can be considered as true and voluntary?
ii. Whether the judgment of conviction and sentence recorded by the trial court is sustainable or requires any interference by this Court?1
1995 Supplementary (4) SCC 118 2 2004 (2) ALD (Criminal) 177 8 Dr.GRR, J crla_156_2012
13. Before proceeding to decide the above points, it is considered necessary to extract the provisions of Section 304-B of IPC, the presumption laid down under Section 113-B of Evidence Act and the definition of Dowry as specified under Section 2 of DP Act, 1961 and Section 4 of DP Act, 1961. Section 304-B of IPC was inserted in the Indian Penal Code by Act 43 of 1986 with effect from 19.11.1986. In consequence thereof, Section 113-B was also inserted in the Evidence Act by Act 43 of 1986 with effect from 19.11.1986.
14. Section 304-B of IPC reads as follows:
"304-B. "Dowry death" -
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
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15. The Hon'ble Apex Court in State of Karnataka v. M.V.Manjunathe Gowda & Another 3, held that:
"In order to establish the offence under Section 304-B IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within 7 years of her marriage and that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband. Such harassment and cruelty must be in connection with any demand for dowry.
If the prosecution is able to prove the aforesaid circumstances then the presumption under Section 113-B of the Evidence Act will operate. It is a rebuttable presumption and the onus to rebut shifts on to the accused."
16. Section 113-B of Evidence Act is pertaining to the presumption concerning Section 304-B of IPC. It reads as follows:
"113-B. Presumption as to dowry death -
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation - For the purposes of this Section "dowry death" shall have the same meaning as in Section 304-B of IPC."3
2003 (2) SCC 188 10 Dr.GRR, J crla_156_2012
17. Both these Sections were inserted by the Dowry Prohibition (Amendment Act, 1986) with a view to combat the increasing menace of dowry death. Once the three essentials under Section 304-B of IPC as stated by the Hon'ble Apex Court are satisfied, the presumption under Section 113-B of Evidence Act would follow. This rule of evidence is added in the statute by amendment to obviate the difficulty of the prosecution to prove as to who caused the death of the victim. It is a rebuttable presumption and the accused by satisfactory evidence can rebut the presumption.
18. Dowry is defined under Section 2 of DP Act, 1961 as follows:
"2. Definition of 'dowry' -
In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties but does not include dower or mahrin the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II - The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code."
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19. Section 4 of DP Act, 1961 is pertaining to punishment for demand of dowry. It reads as follows:
"4. Penalty for demanding dowry -
If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but may extend to two years and with fine which may extend to ten thousand rupees.
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."
20, To attract the provisions of Section 304-B of IPC, the main ingredient of the offence to be established is that soon before the death of the deceased, she was subjected to cruelty and harassment in connection with the demand of dowry. The expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or live link between the effect of cruelty based on dowry demand and the concerned death. It should not be remote in point of time and thereby making it a stale one. However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the provisions of the Act.
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21. Section 304-B of IPC is an exception to the cardinal principles of criminal jurisprudence to what a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favor. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304-B of IPC. Such a deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304-B of IPC were not satisfied. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied, it will be called dowry death and by deemed fiction of law, the husband or the relatives will be deemed to have committed that offence as stated by the Hon'ble Apex Court in Kashmir Kaur & Another v. State of Punjab 4.
22. In the light of these principles, the evidence of the case needs to be considered.
23. The mother of the victim was examined as PW.1. She stated that they performed the marriage of their daughter Vasantha with A1 three months prior 4 AIR 2013 SC 1039 13 Dr.GRR, J crla_156_2012 to the date of the incident on 11.06.2009. At the time of marriage, they presented half tula of gold to their daughter and gave cash of Rs.40,000/- to A1 as dowry and promised A1 that they would give two tulas of gold after some time. After the marriage, A1 and her daughter lived happily only for one month. When her daughter visited their house after marriage, she informed them that A1 and A2 harassed her demanding two tulas of gold. When her daughter was at their house, the brothers-in-law of A1 came and took her daughter to the house of the accused in view of marriage of LW.7 - B.Sreenu, the brother of A1. On the next day morning, one Narsimha came to their village and informed them that their daughter poured kerosene and set herself ablaze. Then, they went to Government Hospital, Amangal. By that time, her daughter Vasantha was already shifted to Osmania General Hospital, Hyderabad. Then, they went to Osmania General Hospital, Hyderabad found her daughter with burnt injuries. Her daughter was not in a position to speak. Her daughter had not informed anything to her as she was not in a position to speak. Then, she preferred a complaint in Amangal Police Station. She got prepared the complaint at her village after her return from Osmania General Hospital, Hyderabad. She stated that her daughter was in Osmania General Hospital for 15 days and after that died due to injuries.
24. In her cross-examination, she stated that she came to know about the incident on the same day at about 10:00 AM / 11:00 AM and reached 14 Dr.GRR, J crla_156_2012 Hyderabad from Amangal on that day at about 10:00 PM in the night. She lodged the complaint on the next day, on her return from Osmania General Hospital after seeing her daughter. She stated that after the marriage, her daughter came to her house along with A1 twice. She stated that A1 along with some others came to her house to give the wedding card of LW.7 - B.Sreenu. She again stated that at about 06:00 PM in the evening when A1 came to their village for giving wedding card of Sreenu, he did not come to her house and he sent a person with wedding card. She stated that she did not know whether A1 met with an accident at Jadcherla while returning to his village from their house. She admitted that the incident of her daughter setting herself ablaze took place one day after the marriage of LW.7 - B.Sreenu. She further stated that she had not informed the village elders about the demand of A1 to pay two tulas of gold, she neither informed her brothers or to her relatives about the demand of the accused to give two tulas of gold.
25. The demeanor of the witness was observed by the trial court while recording her evidence that she was giving evading answers and on each and every question, she was taking some time to give answers.
26. The brother of the victim woman was examined as PW.2. He also stated that his sister Vasantha and A1 lived happily only for a period of one month after their marriage. Thereafter, A1 bet and harassed his sister Vasantha 15 Dr.GRR, J crla_156_2012 demanding two tulas of gold which they promised to pay at the time of marriage. After some time, A1 and A2 abused his sister and sent her to their house. Three days later, A1 came to their house and when they asked him to take Vasantha along with him, he refused to take her to his house, till they pay two tulas of gold to him. On the next day, LW.10 - Anjaneyulu, LW.11 - V.Srinu came to their house on 09.06.2009 and took his sister along with them to the house of accused. On 11.06.2009, they received information through Jangaiah that Vasantha set fire to herself. Then, they went to Amangal Village. But, by that time, his sister was shifted to the hospital at Hyderabad. They went to the hospital at Hyderabad and saw Vasantha with burn injuries and that she was not in a position to speak. On the next day, they went to Talakondapally Police Station and preferred a complaint. He stated that his sister was in Osmania General Hospital for a period of 15 days and died while undergoing treatment.
27. In his cross-examination, he stated that he did not know whether A1 came to their house for giving the wedding card and whether A1 left their house on that day, as he had to distribute wedding cards to their relatives. He stated that A1 and A2 harassed his sister demanding two tulas of gold, 2 or 3 days prior to the marriage of LW.7 - B.Sreenu. He admitted that the house of the accused was surrounded by residential houses at Rampur Village. 16
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28. The brothers of PW.1 i.e. the maternal uncles of the deceased were examined as PWs.3 and 4. PW.3 stated that at the time of marriage, PW.1 gave the dowry of Rs.40,000/- to A2 and that they informed the accused that they would pay two tulas of gold within six months. After the marriage, A1 and Vasantha lived happily only for a period of one month. After that A1 and A2 harrassed the deceased Vasantha demanding two tulas of gold, for which mediation was held. A1 B.Narsimha beat the deceased Vasantha, due to that, the deceased came to her parents' house. Vasantha stayed in her parents' house for one week. During that period, A1 came to the house of PW.1 and again demanded two tulas of gold and stated that only when the said demand was complied, then only he would take his wife with him. After that, the brothers- in-law of A1 came to the house of PW.1 and took the deceased with them to the house of the accused. PW.3 stated that the deceased Vasantha informed him that A1 and A2 harassed her demanding two tulas of gold. He admitted in his cross-examination that he and the accused were working at one and the same place.
29. PW.4, elder brother of PW.1 stated that the marriage of the deceased Vasantha was performed with A1 and he acted as a mediator at the time of marriage of Vasantha with A1. His sister Yadamma (PW.1) paid dowry of Rs.40,000/- to the accused at the time of marriage. His sister also agreed to give two tulas of gold to the accused after sometime and the said transaction 17 Dr.GRR, J crla_156_2012 took place through them. He stated that Vasantha died three months after her marriage with A1 due to burn injuries. One day morning, Jangaiah came to their village and informed them that Vasantha sustained burn injuries. Then, he went to Rampur Village and found Vasantha with burn injuries lying in the house of the accused. By the time, he reached the accused Village; already an ambulance was present at the house of the accused, then, they took Vasantha to Amangal Hospital and from there to a hospital at Hyderabad. One month after the marriage, A1 beat his wife Vasantha for the sake of two tulas of gold. Then he questioned A1 as to why they were quarrelling within a short time of their marriage. Then, A1 agreed to live with the deceased without any dispute. In his cross-examination, he admitted that the accused were their agnates. But, he got acquainted with them only four months prior to the marriage between A1 and Vasantha.
30. The witnesses to the crime detail form and rough sketch examined as PWs.5 and 6 turned hostile and stated that their signatures were obtained at Gram Panchayat Office and that the seizure of the empty kerosene can from the house of the accused did not take place in their presence.
31. The I Metropolitan Magistrate, Hyderabad who recorded the dying declaration of the deceased was examined as PW.7 He is the material and crucial witness in this case. PW.7 stated that on 11.06.2009 at 09:25 PM, he 18 Dr.GRR, J crla_156_2012 received requisition from Medical Officer, Osmania General Hospital, Hyderabad to record the dying declaration of Smt.Sujatha, W/o.Narsimha aged about 21 years, R/o.Rampur Village of Talakondapally Mandal. Then, he proceeded to burns ward. On that day, he visited the hospital to record the dying declaration of another patient and when he was in the hospital burns ward, he received the present requisition. He put preliminary questions to the patient to know her mental condition. He was satisfied that the patient was in a fit mental state to give statement. He disclosed his identity to the patient. The Medical Officer also endorsed that the patient was conscious and coherent to give statement. When he enquired the declarant, she stated that she sustained burn injuries and she herself set fire by pouring kerosene. When he asked the reason for committing the said act, the declarant had stated that she was recently married. At the time of marriage, her parents gave Rs.40,000/- as dowry to her husband and also agreed to give two tulas of gold afterwards, but failed to give the gold. For that reason, her husband used to beat her every day and her father-in-law Krishnaiah used to scold her. On that day at about 10:00 AM, her father-in-law Krishnaiah and her husband Narsimha scolded severely. Due to that, she went inside the room, closed the doors and then poured kerosene on herself and set herself ablaze. She further stated that after hearing her cries, neighbors came there and rescued her from flames and then shifted 19 Dr.GRR, J crla_156_2012 her to the hospital. She was not aware where her husband and father-in-law were at that time.
32. The witness further stated that he read over the contents of her statement in Telugu. The declarant admitted the same to be true and correct. He obtained her right great toe impression. The witness further stated that at the time of recording the dying declaration, nobody were present near the patient except the Duty Medical Officer. After recording the dying declaration, he also obtained the endorsement of Duty Medical Officer that the patient was conscious and coherent while recording the dying declaration. He stated that the proceedings were concluded at 10:00 PM in the night.
33. In his cross-examination, he stated that when he reached the patient, he asked the persons gathered near the patient to go away.
34. PW.8 is the inquest panch witness. He stated that the deceased Vasantha was his sister's daughter. When he went to Osmania General Hospital to see the dead body of Vasantha, the Tahsildar, Talakondapally obtained his signatures on a paper. He came to know that Sujatha committed suicide due to the harassment in the hands of her husband and father-in-law demanding two tulas of gold.
35. PW.9 is the Tahsildar, Talakondapally who conducted inquest panchanama. He stated that on 24.06.2009, on the requisition of the SI of 20 Dr.GRR, J crla_156_2012 Police. Talakondapally, he conducted inquest in the presence of blood relatives and panchayatdars and the panchayatdars opined that the deceased died by committing suicide by setting herself ablaze.
36. PW.10 is the Associate Professor of Department of Forensic Medicine, Osmania Medical College, Hyderabad who conducted autopsy over the dead body of the deceased. He stated that he found ante-mortem dermo-epidermal burns over the face, neck, front and back of chest and abdomen and on both upper limbs and healed burns over the front of both thigh regions. Some of the burnt injuries were greenish yellow in color and some of the burnt injuries were red in color and stated that the victim sustained 44% burns. He further stated that the cause of death to the best of his knowledge and belief was due to burns.
37. PW.11 is the Sub-Inspector of Police of PS Talakondapally at the relevant time. He stated that on 11.06.2009 at 11:30 AM, PW.1 came to the Police Station and lodged the complaint. Basing on the same, he registered the case as Crime No.68 of 2009 under Section 498-A of IPC. He stated that he recorded the statement of the complainant and also recorded the statements of the witnesses. He visited the scene of offence at Rampur Village, the house of the deceased and seized 5 liters empty kerosene plastic can in the presence of mediators. He drafter the crime detail form and also recorded the statement of LW.7 - B.Sreenu.
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38. He further stated that on 24.06.2009, he received the death intimation of Sujatha. Then, he gave a requisition to Tahsildar to conduct inquest over the dead body. He altered the Section of Law from Section 498-A of IPC to Section 304-B of IPC and got the dead body photographed through a photographer and handed over further investigation to Sub-Divisional Police Officer (for short "SDPO").
39. The statement of PW.1 that she was at the house of her brothers at Medakpally when Jangaiah came and informed about the incident of Vasantha sustaining burn injuries at Rampur Village was marked as Ex.D1 in the 161 Cr.P.C. statement of PW.1. The statement of PW.4, that on such information, immediately he went to Rampur Village on the motorcycle of Janagaiah and found Vasantha in her room with burn injuries was marked as Ex.D2.
40. The defence got examined DWs.1 and 2. DW.1 stated that he provided first-aid treatment to A1 - Narsimha at the time of death of his wife. He provided dressing of wounds for A1 - Narsimha for a period of four or five days. A1 - Narsimha sustained injuries on his head, right shoulder, and on right ankle joints and they took more than ten days for healing.
41. Thus, the evidence of this witness would disclose that A1 sustained injuries at the time of death of his wife on his head, shoulder and ankle joints for which DW.1 provided first-aid treatment.
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42. The C.A.S. in Community Health Centre R/o.Badepally was examined as DW.2 and he stated that as per the out-patient register of their hospital on 08.06.2009, the patient by name Narsimha (A1) S/o.Krishnaiah, R/o.Rampur took treatment as emergency out-patient vide I.P.No.1614 and as per the entry in their register, the said patient sustained mild injury and took treatment of TT injection and some tablets.
43. As per the evidence of DW.2, on 08.06.2009, A1 was admitted as emergency out-patient in their hospital and he sustained some mild injuries for which TT injection was given. It was prior to the incident of the deceased sustaining burn injuries on 11.06.2009. The said evidence of DWs.1 and 2 is no way helpful to the case of the defence.
44. The trial court i.e. the learned Sessions Judge mainly relying upon the dying declaration of the deceased recorded by PW.7, the I Metropolitan Magistrate, Hyderabad recorded the conviction of the accused A1 and A2 for the offences under Sections 304-B of IPC and Section 4 of DP Act. P O I N T No.1:
Whether the dying declaration recorded by the Magistrate can be the sole basis for convicting the accused for the offences under Sections 304-B of IPC and Section 4 of DP Act and whether the same can be considered as true & voluntary?23
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45. Section 32(1) of Evidence Act speaks about the admissibility of the statements made by persons who cannot be brought before the Court to give their evidence. It reads as follows:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant -
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death -
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be nature of the proceeding in which the cause of his death comes into question."
46. It is an exception to the general rule of exclusion of hearsay evidence based upon the necessity.
47. The Hon'ble Apex Court in Smt.Shakuntala v. State of Haryana 5 held that the general principle based on which this kind of evidence is admitted is 5 2007 CRLJ 3747 : AIR 2007 SC 2709 24 Dr.GRR, J crla_156_2012 that the said declarations are made in extremity, when the party is at the point of death, when the hope of this world is gone, the mind would be induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.
48. The Hon'ble Apex Court in Atbir v. Government (NCT of Delhi) 6 summed up the legal principles governing a dying declaration as follows:
i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.
(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.6
(2010) 9 SCC 1 25 Dr.GRR, J crla_156_2012
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.
49. In the light of these principles reiterated by the Hon'ble Apex Court, when the dying declaration of the deceased is seen, it is recorded on the same day when the deceased was admitted in the hospital on 11.06.2009 at 09:30 PM. The requisition was given by the Medical Officer of Osmania General Hospital, Hyderabad, but not by the concerned SI of PS Talakondapally, where the crime was registered. As per the evidence of PW.7, he recorded it when he visited the Osmania General Hospital to record the dying declaration of another patient in the burns ward.
50. Rule 33 of Criminal Rules of Practice deals with the procedure to be followed by the Magistrate while recording dying declarations. It reads as follows:
26
Dr.GRR, J crla_156_2012 (1) While recording a dying declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death.
(2) Before taking down the declaration, the Magistrate shall disclose his identity and also ask the declarant whether he is mentally capable of making a declaration. He should also put some simple questions to elicit answer from the declarant with a view to knowing his / her state of mind and should record the questions and answers, signs and gestures together with his own conclusion in the matter. He should also obtain whenever possible a certificate from the Medical Officer as to the mental condition of the declarant.
(3) The declaration should be taken down in the words of the declarant as far as possible. The Magistrate should try to obtain from the declarant particulars necessary for identification of the accused. Every question put to the declarant and every answer or sign or gesture made by him in reply shall be recorded.
(4) After the statement is recorded, it shall be read over to the declarant and his signature obtained thereon, if possible, and then the Magistrate shall sign the statement.
51. Thus, the Magistrates recording the dying declarations must ensure that the victim must be in a fit state of mind and capable of making a statement at the time of recording the dying declaration. The dying declaration marked under Ex.P5 would disclose that the Magistrate had put preliminary questions to the victim to ascertain her mental condition and after satisfying himself and explaining to the victim that he was a Judicial Officer, who came to record her statement and also after obtaining the certificate of the Medical Officer about 27 Dr.GRR, J crla_156_2012 the mental condition of the victim, proceeded to record the said statement. The Medical Officer certified at the beginning of the statement as well as at the end of the statement that the patient was conscious, coherent and was in a fit state of mind throughout the recording of the dying declaration and attested his signature both at the beginning as well as at the end of the said statement. The dying declaration was recorded in a question and answer form and it was recorded in Telugu in the language of the victim, even though the questions were put in simple English.
52. The Magistrate after recording the statement had also made an endorsement that while recording the statement that he had taken all the precautions, except himself and the Duty Doctor, nobody were present at the time of recording the dying declaration. He stated that he had read over and explained the contents of the statement in Telugu to the patient and she admitted the same as true and correct. Afterwards, he asked the Duty Doctor to certify the mental condition of the patient. He obtained the right leg toe impression of the declarant on the said declaration recorded by him on each and every page as well as after putting preliminary questions and at the end of the statement.
53. This High Court in P.Srinivasulu v. State of Andhra Pradesh 7 observed that when the deponent was unable to put the thumb marks since her hands were 7 2004 Law Suit (AP) 121 28 Dr.GRR, J crla_156_2012 burnt, her toe marks can be taken. In cases, when the hands were burnt, the toe marks could be taken.
54. As such, the Magistrate had taken all the precautions while recording the dying declaration of the deceased.
55. The learned counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Kanchy Komuramma v. State of Andhra Pradesh (cited supra), wherein it was held that:
"11. The prosecution for reasons best known to it did not examine Dr H. Rao who is alleged to have made the endorsement on Ex. P-7 that "the patient was in a fit state of mind to depose". No other witness was examined to prove the certificate of the doctor either. The non- production of Dr H. Rao to prove his certificate and subject himself to be cross-examined by the appellants when considered in the light of the testimony of the mother of the deceased, PW 1, who specifically stated that the condition of the patient was not good and that she was not in a fit condition, creates a doubt in our minds as to whether the patient was actually in a proper mental condition to make a consciously truthful statement. This infirmity renders it unsafe to rely on the dying declaration. As a matter of fact, the failure of the prosecution to establish that the deceased, before she made the dying declaration, was in proper mental condition to make the dying declaration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it. That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the Court. There are certain safeguards which must be observed by a Magistrate when requested to record a dying 29 Dr.GRR, J crla_156_2012 declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law. These safeguards have not been observed in the present case. Even PW 8, Dr.Kurthy, the Casualty Officer has not stated that the deceased was in a fit condition to speak."
56. The learned counsel for the appellants also relied upon the judgment of the High Court of Andhra Pradesh in Bhasker v. State of Andhra Pradesh (cited supra), wherein it was held that:
"21. The learned Public Prosecutor argued that the signature of the doctor itself amounts to the certification and hence there is no need for separate certificate, and the evidence of the Magistrate has to be looked into with reference to the signature as that of the certification, and the evidence of the Magistrate and the dying declaration has to be given its credence. But for the reasons best known to the prosecution the said doctor was not examined. The Apex Court in a latest judgment in P.V. Radha Krishna v. State of Karnataka [IV (2003) SLT 603 = III (2003) CCR 47 (SC)=2003 SCC (Crl.) 1679], has held that the dying declaration has also to be proved like the other evidence. But, in the case on hand it is to be noted that the doctor who has appended his signature to the dying declaration -
Ex. P4 and who has translated the dying declaration into Telugu has not been examined and the learned Magistrate purely depended on the version of the doctor to note down Ex. P4.
Hence the non-examination of the doctor is fatal to the prosecution. There is another circumstance to disbelieve the dying declaration. The Magistrate who has recorded the dying 30 Dr.GRR, J crla_156_2012 declaration deposed that he has obtained the certificate of the doctor and also the endorsement, but there is no certificate of the doctor. Therefore, we are of the opinion that Ex.
P4 need not be given any evidentiary value. It is pertinent to note that a reading of Ex. P4 goes to show that the deceased deposed that her husband, mother-in-law, Thannu, two small children were present and her mother-in-law asked her husband to pour kerosene on her and set fire and her body was got burnt by her mother-in-law through her husband. Thus, the dying declaration of the deceased goes contrary to the evidence of PW.2 who deposed that he has seen the accused setting fire to the saree of the deceased in the Verandah and as such, in view of the above contradictions, the evidence of PW 2 also has no credence and evidentiary value and has to be discarded. However, in the background of the evidence, the Trial Court came to the conclusion that it was the accused that poured kerosene on his wife and set her on fire. But, in view of the discrepancy in the evidence of PWs 1 and 2 with regard to the place of occurrence, we hold that the prosecution has failed to prove the place of occurrence of the incident and, therefore, the evidence of PWs 1 and 2 has to be discarded.
There is discrepancy in the evidence of the learned Magistrate with regard to the obtaining of certificate by the doctor and the said certificate is not filed and hence, his evidence has no credibility and that we have no hesitation to observe that the recording of the dying declaration itself is against the rules framed under Criminal Rules of Practice."
57. As seen from the above judgment, there was discrepancy in the evidence of the Magistrate with regard to obtaining of the certificate by the doctor and that the medical certificate issued by the doctor was not filed in the above case. But, in the present case, Ex.P5 was containing the medical certificate of the doctor, wherein the doctor certified that the patient was in a fit state of mind 31 Dr.GRR, J crla_156_2012 throughout the recording the dying declaration and endorsed on Ex.P5 at the beginning as well as at the end of the certificate. As such, the above cases relied by the learned counsel for the appellants are distinguishable on the facts of this case.
58. The contention of the learned counsel for the appellants was that PWs.1 and 2 both stated that when they went to the hospital and observed the victim, she was not in a position to speak. PW.1 stated that they reached Hyderabad on that day about 10:00 PM in the night and PW.2 stated that they reached Osmania General Hospital at about 04:00 PM. Thus, the evidence of PWs 1 and 2 is not consistent with each other as to when they reached Osmania General Hospital, Hyderabad and when they observed the victim and at what time she was unable to speak. PW.1 also stated that on her return from Osmania General Hospital, she got prepared the Ex.P1 report at their village and lodged the complaint in Amangal Police Station. But, Ex.P1 would disclose that it was given to Talakondapally Police, but not to Amangal Police and the time, the report was received by them was also on 11.06.2009 at 11:30 hours i.e. immediately after the incident which took place at 09:30 AM on 11.06.2009.
59. Thus, PW.1 being an illiterate woman, she was unable to state in which Police Station she lodged the report and the time of lodging the report also. She was examined on 20.06.2011, two years after the incident. Thus, her statement 32 Dr.GRR, J crla_156_2012 cannot be taken into consideration for setting aside the dying declaration of the deceased which carries a solemn value.
60. The Constitutional Bench of the Hon'ble Apex Court in Lakshman v. State of Maharashtra 8 while resolving the conflict of opinion as to the manner of testing the credibility of a dying declaration, held that:
"The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the Court insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The Court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is 8 (2002) 6 SCC 710 33 Dr.GRR, J crla_156_2012 the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die.
There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
The view taken in Paparambaka Rosamma & Ors. v. State of Andhra Pradesh [1999 (7) SCC 695] that in the absence of a medical certification as to the fitness of statement of mind, it would be risky to accept a dying declaration on the subjective satisfaction of the Magistrate was over-ruled by the Constitutional Bench not being the correct enunciation of law.
In Koli Chunilal Savji & Another vs. State of Gujarat [1999 (9) SCC 562], a Bench of 3- Judges rejected the contention that in the absence of a doctor while recording the dying declaration, the declaration loses its value cannot be accepted. In Ravi Chander vs. State of Punjab [1998 (9) SCC 303], the Hon'ble Apex Court held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted.
61. The Hon'ble Apex Court observed that the Executive Magistrate is a disinterested witness and is a responsible officer as long as there was no material on record to suspect that he had any animus against the accused or in any way interested in fabricating the dying declaration, no question arises as to checking the genuineness of the dying declaration recorded by the Executive Magistrate. 34
Dr.GRR, J crla_156_2012
62. In the present case, the doctor was present while recording the dying declaration and also gave a certificate as to the fitness of state of the mind of the declarant and the said statement was recorded by a Judicial Magistrate, not even by an Executive Magistrate. Just because, the doctor was not examined before the Court, the dying declaration recorded by the Judicial Magistrate need not be suspected.
63. There was no material on record even in this case also that PW.7 had any animus against the accused or was in any way interested in fabricating the dying declaration. He is an independent witness, who is no way concerned with either the victim or the accused and no circumstances were brought on record to suspect his bonafides.
64. As such, the dying declaration recorded by PW.7 can be the sole basis for convicting the accused for the offences with which the accused were charged. The said declaration can be considered as true and voluntary, as PW.7 could not have recorded the details of the case unless stated by the victim as in Ex.P5. The victim clearly stated in Ex.P5 that, as her parents were unable to give two tulas of gold which they promised to give at the time of marriage, her husband used to beat her and her father-in-law used to abuse her and on 11.06.2009 at 10:00 AM, her husband and her father-in-law abused her severely, due to which 35 Dr.GRR, J crla_156_2012 she went inside the room, bolted the doors, poured kerosene on her body and set herself ablaze.
65. There was no dispute that the marriage between the deceased and A1 took place three months prior to the said date of incident and the deceased died on 24.11.2009 i.e. within seven years of her marriage. As per the evidence of PW.10, the cause of death was due to burns which would prove that the death of the deceased was caused by burns. The evidence of PW.7, the Judicial Magistrate who recorded the dying declaration and the dying declaration marked under Ex.P5 would disclose that the deceased was subjected to cruelty or harassment by her husband and her father-in-law. Her statement that her husband used to beat her and her father-in-law used to abuse her for not giving two tulas of gold as promised by her parents at the time of marriage would prove the ingredients of Section 304-B of IPC and also the ingredients of Section 4 of DP Act, that the accused were demanding dowry. The percentage of burns sustained by the victim was also only 44 %. As such, it cannot be considered that she could not be in a fit state of mind to give her statement
66. As such, Point No.1 is answered holding that the dying declaration recorded by PW.7 can be the sole basis for convicting the accused for the offences under Section 304-B of IPC and Section 4 of Dowry Prohibition Act. 36
Dr.GRR, J crla_156_2012 P O I N T No.2:
Whether the judgment of conviction and sentence recorded by the trial court is sustainable or requires any interference by this Court?
67. For the reasons discussed in point No.1, the judgment of conviction and sentence recorded by the trial court is sustainable and it does not require any interference by this Court.
68. In the result, the Criminal Appeal is dismissed confirming the judgment of conviction and sentence passed by the IV Additional District & Sessions Judge (Fast Track Court) at Mahabubnagar in S.C.No.114 of 2010 vide judgment dated 21.02.2012 for the offences under Section 304-B of IPC and Section 4 of Dowry Prohibition Act. The bail granted to the appellants during the pendency of the criminal appeal shall stand cancelled. The appellants - accused shall surrender forthwith before the Court below and undergo the rest of the sentence, as confirmed by this Court. In the event they fail to do so, the Court below shall initiate steps in accordance with law to apprehend and incarcerate them for the balance period as per the confirmed sentence.
As a sequel, miscellaneous applications pending in this appeal if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 15th February, 2024 Nsk.