Md. Sadiq vs The State Of A.P.
2022 Latest Caselaw 4065 Tel

         HONOURABLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.387 of 2009


JUDGMENT:

1. The appellant is convicted for the offence under Section

304-B of IPC and sentenced to undergo seven years rigorous

imprisonment and to pay fine of Rs.1,000/-, in default, to

suffer simple imprisonment for three months vide judgment in

S.C.No.96 of 2006, dated 20.03.2009 passed by the III

Additional District & Sessions Judge. Aggrieved by the same,

present appeal is filed.

2. The case of the prosecution is that according to the

statement of the deceased, the appellant was married to the

deceased 11 months prior to her death. At the time of

marriage, P.W.1, who is the mother of the deceased gave three

tulas of gold and promised to give 2 tulas later. However, for

the past one month, the appellant was demanding to bring the

remaining dowry. Vexed by the demand, the deceased

committed suicide by setting fire to herself. The said statement

was made to the police vide Ex.P10 on 14.03.2005 at 5.00

p.m. On the basis of the said statement, crime was registered

as 'woman burnt'. Later, the police altered the section of law to

Section 498-A and 304-B of IPC.

3. P.W.1 is the mother, P.W.2 is the brother, P.W.s 3 and 4

are neighbours who turned hostile to the prosecution case.

The only basis on which conviction was recorded is the

statement under Ex.P10 made to the police and under Ex.P9

dying declaration recorded by the Magistrate, PW.8. P.W.8

stated that he recorded the statement of the deceased on a

requisition given by the police.

4. Learned counsel for the appellant submits that all the

witnesses have turned hostile to the prosecution case and the

only basis for conviction are the two statements made to the

police and the Magistrate, which are contradicting one

another. In the said statement made before the police, the

deceased stated that she admitted that there was dispute

between her and the appellant, however in the dying

declaration she stated that when she poured kerosene on

herself, the appellant lit fire and thereafter the appellant put

off flames. The police filed charge sheet under Section 304-B of

IPC. However, there is no allegation of any harassment prior

to her death. He relied upon the judgment of the Hon'ble

Supreme Court in the case of i) State of Assam v. Mufizuddin

Ahmed1, wherein it is held that though the dying declaration

can be made basis for conviction, the Court has to be cautious

and also look into for any corroboration. He also relied on the

judgment of Division Bench in the case of ii) Mohd.Osman Ali

v. The State of Andhra Pradesh through SHO, PS I Town,

Mahabubnagar, rep. by the Public Prosecutor2 wherein it is

held that tutored dying declaration cannot be made basis for

conviction and any influence prior to recording of the

statement of dying declaration of the victim should be ruled

out; iii) Mehiboobsab Abbasabi Nadaf v. State of Karnataka3.

5. It is well settled that a dying declaration can be made

sole basis for conviction if it is found that the statement was

(1983) 2 Supreme Court Cases 14

Crl.A.No.847 of 2010, dated 24.02.2016

AIR 2007 SC 2666

made without any external influence when the victim is in fit

state of mind as certified by a Doctor. The statement made

under Exs.P9 and P10 would go to show that there was a

demand by the appellant for two tulas of gold. However, there

are no specific instances which the Court can rely upon to

draw an inference that 'soon before death' she was subjected

to any cruelty.

6. Mere demand without any harassment such as beating,

abusing or sending her away to her parents house would not

amount to an offence under Section 304-B of IPC. However,

the fact that there was demand for two tulas of gold would go

to show that the deceased was treated with cruelty for which

reason, the appellant is found guilty and convicted for the

offence under Section 498-A of IPC.

7. The offence is of the year 2005 and 17 years have lapsed.

It is informed by the learned counsel for the appellant that he

had married again and having children. The responsibility of

the children and his parents is totally upon him.

8. In the facts and circumstances, the appellant is

sentenced to the period already undergone by him for the

offence under Section 498-A of IPC.

9. Accordingly, the Criminal Appeal is partly allowed.

________________

K.SURENDER, J Date: 04.08.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No.387 of 2009

Date:04.08.2022

kvs