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
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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
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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
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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
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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?
1995 Supplementary (4) SCC 118
2004 (2) ALD (Criminal) 177
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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."
2003 (2) SCC 188
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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
AIR 2013 SC 1039
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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
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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
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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.
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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
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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
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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
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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
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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?
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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
2007 CRLJ 3747 : AIR 2007 SC 2709
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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.
(2010) 9 SCC 1
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(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:
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(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
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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
2004 Law Suit (AP) 121
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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
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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
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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
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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
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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
(2002) 6 SCC 710
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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.
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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
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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.
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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.
