//FAIR//
IN THE COURT OF THE VII ADDL. DIST. AND SESSIONS JUDGE,
(FAST TRACK COURT), NIZAMABAD AT BODHAN.
Present:- Sri. P. LAXMI NARAYANA, M.A. LL.B., Spl. Judge for Trial of cases under SC’s & ST’s (PoA) Act, 1989-cum-VIII Addl. Dist. & Sessions Judge, Nizamabad, FAC: VII Addl. District Judge, (FTC), Nizamabad at Bodhan.
Dated this the 4th day of July, 2013.
S.C. No. 86 of 2008 .
Name of the accused::1) A.1: Dheeraj Canaran S/o. Johan Canaran, Age: 32 years, Caste: Christian, Occ: Daily wise labour, NSF Factory, R/o. H.No.4-4-168, Shakkarnagar, Bodhan.
2) A.2: Jahon Canaran S/o. Samuel Canaran, Age: 68 years, Caste: Christian, Occ: Retired Security Guard in NSF Factory, R/o. H.No.4-4-168,Shakkarnagar, Bodhan.
3) A.3:Smt.Shravanthi@ Shanthamma W/o. Late Madhava Krishna Naidu, age: 75 years, R/o. Jangampally.
Offence under section::302 IPC against A.1 to A.3, Sec.304-B IPC against A.1 and A.2 R/w. 3 & 4 of D.P. Act.
Plea of accused ::Pleaded not guilty.
Finding of the Court::Not guilty.
Sentence::A.1 to A.3 are acquitted U/Sec.235 (1) Cr. P.C. for the offences U/Secs.302, 304-B IPC and U/Sec.3 of Dowry Probation Act. Bail bonds of A.1 and A.3 are cancelled and A.1 and A.3 are set at liberty. Prosecution conducted by::Addl. Public Prosecutor, Bodhan.
Accused defended by::Sri. M. Gangareddy, Advocate for A.1 and Sri. T.N. Jadav for A.3.
2S.C.No.86 of 2008.
(PRC No.65 of 2007 on the file of Bodhan, P.S. Bodhan)
J U D G M E N T
1)On 4th day of July, 2013 in the Open Court arguments of Sri.
Gangareddy, Advocate are heard. This Court also heard the argument of Additional Public Prosecutor today. Earlier on 13th day of June, 2013 this Court heard Additional Public Prosecutor and Sri. Jadav, Advocate for A.3.
2)In this case, case against A.2 was abated. No. A.1 and A.3 are present today in the Open Court.
3)This is a case filed by the Sub-Divisional Police Officer,
Bodhan A.1 to A.3 alleging that A.1 to A.3 caused harassment to the deceased demanding the deceased to get additional amount towards additional dowry. It is also the case of Sub-Divisional
Police Officer, Bodhan that A.1, A.2, A.3 with common intention to beat the deceased picked-up petrol in a plastic bottle, poured on the face and body of deceased and A.1 set fire due to which the deceased sustained burnt injuries and made hue and cry but, the deceased was not allowed to go out side and after some time A.1 poured water on the body of deceased and A.1 and A.2 promised the deceased that if she is prepared not to reveal anything about the occurrence to any body then only the accused would take the deceased to the Hospital for treatment and after the deceased promised so A.1 and A.2 took her the deceased to the
Government Hospital, Bodhan and got admitted in the Hospital and since the deceased promised the accused that she would not disclose about the crime, then, her dying declaration was recorded 3S.C.No.86 of 2008.
by Bodhan Magistrate and before Bodhan Magistrate the deceased stated that she sustained burn injuries accidentally while she was preparing tea and the said statement was made before the
Magistrate only under influence of A.1 to A.3 who was
accompanying her in the Government Hospital, Bodhan and closely moving with her and attending her and thereafter while the deceased was undergoing treatment and when her parents came to her and when the deceased little bit recovered from burn injuries, she revealed to her parents stating that on 2nd March, 2007 at about 10-30 A.M., A.1 to A.3 demanding her to get
Rs.30,000/- as additional dowry and poured kerosene on her body and A.1 set fire and caused burn injuries. It is further alleged in the charge sheet by the SDPO., Bodhan that in view of the burn injuries sustained by the deceased, the deceased died on 16th
March, 2007 and therefore according to SDPO., A.1 and A.2 committed the offences U/Sec.302 IPC and also U/Sec.304-B IPC
R/w. Sec.3 and 4 of Dowry Probation Act. In the charge sheet it is alleged that marriage of deceased was performed with A.1 on 15th
June, 2006.
4) Charge sheet was taken on file U/Sec.302 IPC against A.1 to
A.3 and U/Sec.304-B IPC and also Sec. 3 of Dowry Probation Act against A.1 and A.3.
5)Copies of all the documents were furnished to A.1 to A.3.
6)On 31st day of January, 2008 this case against A.1 and A.2 was committed to the Hon’ble Court of Sessions. It appears, in stead of mentioning of name of A.3 who is alive learned 4S.C.No.86 of 2008.
Magistrate by mistake mentioned the name of the A.2 who died in
the committal Order. This case is made over to this Court.
7)Before this Court Sri. Gangareddy, Advocate appeared and defended the cause of A.1 and Jadav, Advocate defended the cause of A.3. On appearance of A.1 and A.3 charge U/Sec. 302
R/w. 34 IPC against A.1 and A.3 and 304-B R/w. 34 IPC against
A.1 and A.3 and Sec.3 and 4 of Dowry Probation Act against A.1 and A.3 were framed on 16th day of August, 2010. Charges were framed read over and explained to A.1 and A.3. A.1 and A.3 pleaded not guilty and claimed to be tried.
8)On behalf of the prosecution 19 witnesses were examined and Exs.P.1 to P.16 were marked and Ex.D.1 was marked on behalf of the accused.
9)M.O.1 plastic bottle was also marked.
10)After closure of the prosecution evidence A.1 was examined
U/Sec.313 Cr. P.C., on 20th September, 2012, A.1 denied the evidence of P.Ws. A.1 further stated that even one rupee dowry was not paid and the people of the deceased looked after the marriage expenses and since the health of his wife (deceased) was not proper and she intended to prepare tea and in that connecti0on she caught fire accidentally and A.1 further stated that he poured water and extinguished the fire and, thereafter, he got admitted his wife in the hospital.
5S.C.No.86 of 2008.
11)At request of accused defence evidence was closed.
12)The point that arises for consideration is whether the prosecution proved its case against A.1 and A.3 beyond all reasonable doubt?
13)Point:
The offences alleged against A.1 and A.3 are Sec.302, 304-B
IPC and Sec.3 and 4 of Dowry Prohibition Act. From the material papers on record it is clear that there is no dispute regarding the relationship between deceased and accused and there is no dispute that the marriage of deceased was performed with A.1 on 15-06-2006.
14)The main allegation of the prosecution is that A.1 and A.3 subjected the deceased to harassment demanding the deceased to bring Rs.30,000/- additional amount towards additional dowry and when the deceased could not bring the amount, the accused poured kerosene and A.1 set fire to the deceased. To prove the above said allegations prosecution cited as many as 22 witnesses in the charge sheet and out of the above said 22 witnesses prosecution examined 19 witnesses.
15)P.w.1 Sudheer is father of the deceased and he stated in the witness box that about 4 years back at about 2-00 P.M., he was informed that his daughter met with fire accident. He stated the he proceeded to the hospital and he was informed by his daughter that A.1 poured petrol on her body and lit fire and 8 days thereafter his daughter died. The evidence of P.w.1 is only hearing evidence and P.w.1 is not eye witness to pouring of 6S.C.No.86 of 2008.
kerosene and litting fire to deceased by the accused. Even P.w.2
Lalitha mother of the deceased stated that she came to know about the death of her daughter through neighbours on phone and immediately she proceeded to hospital and found burn injuries on the body of her daughter and her daughter was not in a position to talk and about 1 week thereafter he daughter talked with her and informed P.w.1 and P.w.2 that as money demanded by the accused was not paid, A.1 and A.2 poured petrol on her body and lit fire. P.w.2 stated that she was not examined by the police.
P.w.3 Laxmi stated that she found flames and burnt on the deceased and she did not find A.1 in the house at that time and she does not know as to who shifted the deceased to the hospital.
16)P.w.4 Suguna stated that she heard that the deceased died some years back in fire accident and she does not know who shifted the deceased to the hospital.
17)It is the evidence of P.w.5 Shailaja that she heard the weeping of deceased stating MANTA, MANTA and she did not go out side her house due to fear and she came to know that subsequently injured was removed to the hospital and thereafter she came to know that injured died in the hospital.
18)P.w.6 Janson deposed in the witness box that on 13-03-2007 in the hospital the deceased informed him that A.1 demanded
Rs.30,000/- for purchasing Auto Rickshaw and said amount could not be paid and, therefore, A.1 and his father poured kerosene on the injured and lit fire. Even P.w.6 is also not an eye witness to the incident.
7S.C.No.86 of 2008.
19)P.w.7 stated that police obtained his signature on two plain papers and he does not know the contents of the panchanama.
20)P.w.8 Ismail deposed that he does not know anything about this case.
21)P.w.9 Parvamma deposed that inquest panchanama was prepared and she affixed thumb impression on Ex.P.9 and burnt cloths of deceased were seized by the Police and even according to P.w.9 the deceased informed her prior to her death that husband of deceased poured petrol on the body of the deceased and lit fire in the cross-examination P.w.9 stated that she alone affixed her thumb impression on the panchanama and in her presence no other person signed on the panchanama.
22)P.w.10 deposed that he does not remember the name of the deceased who is his cousin, who died in 2005 and according to him Ex.P.9 inquest was held over the dead body of deceased and the deceased was having burn injuries and cloths and nose ornament was seized by the Police at the time of inquest. In the cross-examination P.w.10 stated that no other person was present and he does not know the contents of the panchanama.
23)P.w.11 learned Magistrate who recorded the dying declaration of injured on 2nd March, 2007 stated in the witness box
Ex.P.9 statement was recorded by him and Ex.P.9 statement of the deceased shows that she started preparing tea and in stead of putting kerosene she put petrol and fire wood due to which she got burns and no body is responsible for her condition. Further the deceased in the dying declaration Ex.P.9 stated that her husband is very good man and he brought her to the hospital.
8S.C.No.86 of 2008.
24)P.w.12 Head Constable stated that he does not know the name of A.3 and he did not ask victim about the name of A.3 and the deceased died in the year 2007. According to P.w.12 on 03-03-2007 the victim was unable to sleep and again on 13-03-2007 on his enquiry victim allegedly disclosed that A.1 demanded Rs.30,000/- and A.1 and his father and maternal uncle poured petrol and set fire to the body of the deceased.
25)P.w.13 Devender Reddy, Thasildar, Bodhan deposed that he found burnt injuries on the dead body and inquest Ex.P.11 was held over the dead body and the mediators as well as relatives informed P.w.13 that A.1, A.2, A.3 poured petrol and set fire to the victim.
26)P.w.14 Civil Assistant Surgeon deposed that on 16th March, 2007 at about 4-30 A.M., he made all his efforts to save the patient but the patient collapsed at 04-45 A.M.
27)P.w.15 is Medical Officer who conducted PME and issued
Ex.P.12 PME report and according to the doctor the deceased died due to deep burns.
28)P.w.16 Mohd. Sadar Ali, Sub-Inspector of Police deposed that on 13-03-2007 P.w.11 Bandi Sudheer came to the Police Station and gave a requisition for recording the dying declaration of his daughter and he submitted a requisition to the doctor to examine the condition of the injured victim and after obtaining a certificate he gave a requisition to Judicial First Class Magistrate, Bodhan to record dying declaration and Judicial First Class Magistrate recorded the dying declaration and basing on the said dying declaration P.w.16 Sub-Inspector of Police registered a case in 9S.C.No.86 of 2008.
Crime No.86 of 2007, U/Sec.498-A and 302 IPC and issued FIR
Ex.P.13 and P.w.16 recorded the statement of victim.
29)In the cross-examination P.w.16 Sub-Inspector of Police stated that he does not have any idea about the registration of the case earlier and he did not see C.D., file and he does not know who issued the first FIR and he does not remember whether earlier declaration of the victim was recorded or not.
30)P.W.17 Dr. Krishna Prasad deposed that he found 70% to 80% burns over the dead body while conducting the PME and the cause of death according to P.w.17 was due to superficial deep burns and on 2nd March, 2007 P.w.17 was on duty when the victim was admitted with burn injuries in hospital and he intimated the matter about admission of deceased and to record her dying declaration.
31)P.w.18 D. Krishna, Inspector deposed that on 13-03-2007 father of the deceased came to the Police Station and lodged a requisition upon which ASI registered a case in Crime No.86 of 2007 in the absence of P.w.18 while under going treatment the woman died on 16-03-2007 and he filed a memo for alteration of
Section of Law. P.w.18 further stated that earlier to filing of alteration memo he proceeded to Shakkarnagar on 03-03-2007 and conducted the scene of offence panchanama and seized plastic bottle contained petrol in the presence of mediators by name Narsaiah, P.w.7 and Ismail, P.w.8.
32)P.w.19 M. Vijaya Singh retired Additional Superintendent of
Police deposed that he arrested A.1 and A.2 when Sub-Inspector of Police produced A.1 and A.2 before him and sent to A.1 and A.2 10S.C.No.86 of 2008.
to judicial custody and he collected detailed PME report and A.3 surrendered before the Court and on completion of investigation he filed charge sheet.
33)In the present case P.w.11 Qayum Hussain, Magistrate further deposed that on 13-03-2007 he recorded another dying declaration of the same injured person which is Ex.P.10. In ex.P.10 dying declaration it is mentioned that in connection with the marriage of injured her father gave Rs.30,000/- dowry and performed the marriage and husband is working in NSF Factory and for one month her husband and in-laws looked after her well.
It is in Ex.P.10 that husband of the injured demanded her to bring
Rs.3,000/- from her father and her father is poor man and when she refused to bring her husband, her father-in-law and
Shanthamma poured kerosene on her and put fire on her and when she asked them to take to the hospital the accused persons refused to take the injured to the hospital and asked her to die and when she promised the accused that she will not say anything against the accused to any body her husband and her father-in- law brought the injured to the hospital.
34)At the time of argument Sri. Gangareddy, learned Advocate for A.1 submitted that in this case 1st dying declaration is in favour of the accused and it is Ex.P.9 and the 2nd dying declaration
Ex.P.10 is in favour of prosecution and according to the learned counsel for A.1 the dying declaration which is favourable to accused has to be taken into consideration as per the decision reported in KALEEL RAHMEN V/s. STATE OF A.P., DELIVERED BY
OUR HON’BLE HIGH COURT OF A.P., IN CRL. APPEAL 1233 OF 11S.C.No.86 of 2008.
2004 ON 15-06-2007 and he further argued stating that The
Magistrate who recorded dying declaration must know verbal
language of the victim but in this case Magistrate took the assistance of doctor in recording two different dying declarations on two different dates.
35)Sri. Gangareddy, learned counsel for accused further argued that in this case there are two FIRs and 1st FIR was registered on the strength of 1st dying declaration Ex.P.9 and 2nd FIR was issued on the basis of Ex.P.10 dying declaration and, therefore, Sri.
Gangareddy for accused is praying Court to consider the dying declaration Ex.P.9 which is in favour of accused and to acquit the accused. Though father, mother and relatives of the deceased came subsequent of recording of 1st dying declaration Ex.P.9 and stated before the Court that they were informed by the victim about pouring of kerosene and litting fire by the accused to the victim, in the right of the 1st dying declaration Ex.P.9 and as our
Hon’ble High Court of A.P., on 15-06-2007 held to the effect “TWO
DYING DECLARATIONS GIVING TO DIFFERENT VERSIONS, A
SERIOUS DOUBT IS CREATED ABOUT THE TRUGHFULLINESS OF
THE DYING DECLARATION. IT MAY BE THAT IF THERE WAS ANY
OTHER RELIABLE EVIDENCE ON RECORD, THIS COURT TO BE
HAVE CONSIDRED SUCH CORROBORATIVE EVIDENCE TO TEST
THE TRUGHFULLINESS OF THE DYING DECLARATION. THE TOW
DYING DECLARATION HOWEVER, IN THE INSTANCE CASE, STAND
BY THEMSELEVES AND THERE IS NO OTHER RELIABLE EVIDENCE
ON RECORD BY REFERENCE TO WHICH THEIR TRUTHFULLNESS
CAN BE TESTED. IT IS WELL SETTLED THAT ONE PIECE OF
12S.C.No.86 of 2008.
UNRELIABLE EVIDENCE CAN NOT BE USED TO CORROBORATE
ANOTHER PIECE OF UNRELIABLE EVIDENCE. THE HIGH COURT
VIDE CONSIDERING THE EVIDENCE ON RECORD HAS RIGHTLY
APPLIED THE PRINCIPLES LAID DOWN BY THIS COURT IN
THURUKANNY POMPAIAH AND ANOTHER V/s. STATE OF MYSURE,
AIR 1965 SC 939 AND KUSHAL RAO V/s. STATE OF BOMBAY 1958
SCR 552” and as father, mother and other relatives of the victim are not eye witnesses and there was possibility of tutoring the injured to depose against the accused after the 1st dying declaration this Court is of opinion that it is not safe to base a conviction on the basis of evidence father, mother and relative of victim who are not eye witnesses, when there is Ex.P.9 in favour of accused persons. In the opinion of the Court Ex.P.9 Dying
Declaration which is favourable to the accused has to be accepted and if Ex.P.9 Dying Declaration is accepted, there is no other reliable evidence on record to show that they witness while A.1 pouring kerosene on injured and litting fire. Moreover learned
Additional Public Prosecutor also submitted in the Open Court at
the time of arguments that the Dying Declaration Ex.P.9 of injured has to be accepted in view of settled law because Ex.,P.9 Dying
Declaration is in favour of the accused and he stated that the other evidence adduced on behalf of the prosecution is not reliable and they are not eye witnesses.
36)In view of the above reasons and as there are no eye witnesses to the alleged incident this Court is of opinion that the prosecution failed to prove its case against A.1 and A.3 beyond all 13S.C.No.86 of 2008.
reasonable doubt and therefore A.1 and A.3 are entitled for acquittal.
37) IN THE RESULT:- A.1 to A.3 are acquitted U/Sec.235 (1)
Cr. P.C. for the offences U/Secs.302, 304-B IPC and U/Sec.3 of
Dowry Probation Act. Bail bonds of A.1 and A.3 are cancelled and
A.1 and A.3 are set at liberty. M.O.1 shall be destroyed after appeal time.
Typed to my dictation, pronounced by me in the Open Court on this the 4th day of July, 2013.
Sd/-
VIII Addl. Dist. Sessions Judge, Nizambad, FAC: VII Addl. Dist. Sessions Judge, (FTC), Nizamabad at Bodhan.
APPENDIX OF EVIDENCE
For prosecution: For defence:
Pw.1 : Bandi Sudheer -NIL- Pw.2 : Smt. Bandi Lalithamma. Pw.3 : Nagula Laxmi. Pw.4 : Suguna Pw.5 : Y. Shailaja Pw.6 : Bandi Jhonsen Pw.7 : Nagula Narsaiah Pw.8 : Syed Ismail Pw.9 : Parwamma Pw.10 : Ch. Syman Pw.11 : Syed Qyam Hussain Pw.12 : Bandi Steemen Pw.13 : D. Devender Reddy Pw.14 : Dr. M. Vijaya Bhasker Pw.15 : Dr. Anjali Jamkar Pw.16 : Md. Safdar Ali Pw.17 : BLN. Krishna Prasad Pw.18 : D. Krishna Pw.19 : M. Vijaya Singh 14S.C.No.86 of 2008.
EXHIBITS MARKED
For prosecution: For defence:
Ex.P1: Section 161 of Cr.P.C. Ex.D.1: Portion of Sec.161 statement Cr.P.C. statement. Ex.P2: Section 161 of Cr.P.C. Statement Ex.P3 : Section 161 of Cr.P.C. Statement Ex.P4 : Signature on scene of offence panchanama Ex.P5 : Signature on rough sketch Ex.P6 : Signatures on the scene of offence panchanama and rough sketch Ex.P7 : Signatures on the scene of offence panchanama and rough sketch Ex.P8 : Signature on the slip on plastic bottle Ex.P9 : Dying Declaration. Ex.P10 : Dying Declaration Ex.P11 : Inquest panchanama Ex.P12 : PME report Ex.P13 : FIR Ex.P14 : Statement of the victim Ex.P15 : Original FIR Ex.P16 : Alteration Memo :: M.Os. Marked ::
M.O.1 : Plastic bottle.
Sd/-
VIII Addl. Dist. Sessions Judge, Nizambad, FAC: VII Addl. Dist. Sessions Judge, (FTC), Nizamabad at Bodhan.