Pulluri Srinivas, vs The State Of A.P., Rep By Pp.,
2022 Latest Caselaw 4327 Tel

            HON'BLE SRI JUSTICE K.SURENDER
              Criminal Appeal No.929 of 2009

1.

The appellant/sole accused convicted for the offence

under Section 498-A of IPC and sentenced to undergo rigorous

imprisonment for a period of three years, sentenced to

undergo rigorous imprisonment for a period of five years under

Section 3 of the Dowry Prohibition Act, sentenced to undergo

rigorous imprisonment for a period of one year under Section

4 of the Dowry Prohibition Act and he was further sentenced

to undergo rigorous imprisonment for a period of seven years

for the offence under Section 304-B of IPC. Aggrieved by the

same, present appeal is filed.

2. The case of the prosecution is that the deceased was

married to the appellant five months prior to her death. At the

time of marriage, Rs.2.00 lakhs cash and motor cycle was

given as dowry. After marriage, when the deceased visited the

parents house for Bathukamma festival, she informed that the

appellant was harassing to get cots and almirah. The appellant

went to the grand mother/P.W.1's house and took the

deceased to his house and two days thereafter sent back the

deceased for almirah and cots. P.W.1 promised the appellant

to provide the cots as asked for. On 05.01.2008, the appellant

again went to the house of P.W.1 and demanded for cot and

almirah and took the deceased who was in P.W.1's house. On

09.01.2008, an amount of Rs.10,000/- was given to the

appellant by P.W.1 for purchasing cots. The deceased was

staying at the relevant time in P.W.1's house. On 07.02.2008,

the appellant went to the village of P.W.1 and entered into an

altercation for one tula gold and almirah. Unable to bear the

constant harassment, the deceased committed suicide by

drowning herself with kerosene and set herself on fire.

3. The grand mother, who was examined as P.W.1, during

the course of trial turned hostile to the prosecution case and

did not speak about any harassment for dowry or dowry that

was given to the appellant. P.W.2 is of the same village, who

was also declared hostile and did not speak anything about

any harassment by the appellant. He state that the deceased

was suffering with unbearable stomach pain, for which reason

she committed suicide. P.W.3 is sister, who also turned

hostile to the prosecution case. P.W.4 is another independent

witness, who also turned hostile to the prosecution case and

stated that the deceased committed suicide unable to bear the

stomach pain. P.W.5 is the inquest panch, who stated that on

the basis of the witnesses examined it was opined that the

deceased committed suicide unable to bear the harassment of

the appellant. P.W.6 is the Doctor who treated the deceased on

11.02.2008 and also recorded the statement/dying declaration

at 2.50 p.m, on the said date. The second Dying Declaration

was recorded by P.W.9, police constable under Ex.P11. On the

basis of the evidence, after conclusion of trial, the learned

Sessions Judge convicted as stated above on the basis of two

statements of deceased.

4. Learned counsel for the appellant submits that the Dying

Declaration was recorded at 2.50 p.m under Ex.P8 by doctor

and within ten minutes by P.W.9, Head Constable. In the

Dying Declaration recorded at 3.00 p.m, there is no mention of

any additional dowry, but there was a quarrel in between the

deceased and the appellant for the reason of the appellant

scolding her for committing theft in the house. The said

second Dying Declaration has no endorsement of the Doctor

that she was in a fit state of mind as to make a statement. The

first Dying Declaration was recorded by P.W.6, Doctor. There

is no necessity for the Doctor to record the statement. It is for

the police or the Magistrate to record any statement of victim.

The said statement was fabricated for the reason of the

deceased victim not stating anything about additional dowry in

her statement at 3.00 p.m to P.W.9. The said statement under

Ex.P8 was ante timed and ante dated. The Doctor P.W.6 had

obliged the police to give false evidence that statement was

recorded by him.

5. On the other hand, learned Assistant Public Prosecutor

submits that both the declarations are probable and it cannot

be said that the Doctor would come up with a false statement

only to support the case of the prosecution and falsely

implicate the applicant. Since both the statements under

Exs.P8 and P11, when considered collectively, the offence

under Section 304-B of IPC is made out. The appellant failed

to discharge his burden as required under Section 113-B of

Indian Evidence Act.

6. P.W.1 is the grand-mother of the deceased, who was

declared hostile to the prosecution case and she stated that no

dowry was given at the time of marriage and never did the

appellant ask for any dowry and since the deceased was

suffering from stomach pain since childhood, she committed

suicide. On similar lines, P.W.2 independent witness of the

village, P.W.3 sister of the deceased, P.W.4 another

independent witness have all turned hostile to the prosecution

case and stated that the deceased committed suicide unable to

bear the stomach pain.

7. P.W.5 is another panch for inquest, who stated that on

examination it was known that the deceased committed

suicide unable to bear the harassment for additional dowry.

The only evidence left for consideration is the statement of the

deceased recorded by P.W.6-Doctor under Ex.P8 and the

statement recorded under Ex.P11 by the Constable P.W.9.

According to the statement made to the Doctor under Ex.P6,

the deceased stated that she studied X class and her husband

was working in kirana shop. She was married for five months

and yesterday i.e., 10.02.2008, in the evening, the appellant

beat her stating that she had committed theft. Further

demanded that he has to get more dowry, for which reason,

she poured two liters of kerosene on herself and lit fire to

herself. The said statement was made at 2.50 p.m. The

statement made under Ex.P11 at 3pM, the deceased stated

that P.W.1 has given Rs.2.00 lakhs dowry and after marriage,

the appellant started asking for additional dowry. On

09.01.2008, she went to the house of P.W.1 for Sankranthi

Festival. For the reason of the appellant demanding additional

dowry, P.W.1 gave Rs.10,000/-. On 07.02.2008, the appellant

went to P.W.1's house and brought her back on 10.02.2008 in

the night. The appellant beat the deceased stating that she

had committed theft, for which reason unable to bear the

insult, she committed suicide by pouring kerosene on her.

8. From both the statements made, the common factor is

that on the previous night the deceased committed suicide as

the appellant beat the deceased stating that she had

committed theft. The other aspects regarding the additional

dowry of Rs.10,000/- was not stated in the statement before

the Doctor. Since the statement regarding additional dowry is

vague, the same cannot be considered in the back ground of

P.Ws.1 to 4 turning hostile to the prosecution case and stating

that there was never any kind of dowry demand which was

made by the appellant.

9. The allegation that the appellant beat the deceased

stating that she has committed theft is common in both the

statements under Exs.P6 and P11. In the cross-examination,

P.W.6, the Doctor has stated that though he was present when

the police recorded the statement of the victim under Ex.P11,

he did not sign on the said statement. The said conduct of the

Doctor is not explained by the prosecution. In the absence of

any certification made regarding the mental fitness to give a

statement, the said statement cannot be considered. Further

the reason given by the deceased that she was beaten on the

allegation of theft, which is common in both the statements

cannot be made basis to convict the appellant for the offence

under Sections 304-B and 498-A of IPC, Sections 3 and 4 of

Dowry Prohibition Act.

10. For the aforementioned reasons the conviction recorded

by the trial Court vide judgment in SC No.1 of 2009 dated

17.08.2009 is liable to be set aside and accordingly set aside.

11. In the result, the Criminal Appeal is allowed.

__________________ K.SURENDER, J Date: 26.08.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.929 OF 2009

Date: 26.08.2022

kvs