IN THE COURT OF THE VIII ADDL., DISTRICT AND SESSIONS
JUDGE, CHITTOOR
PRESENT: SRI M. SRIKANTHA CHARY, B.Sc., LL.B.
VIII Additional Sessions Judge, Chittoor.
Friday the 10 th day of January, 2014
Criminal Appeal No.159 of 2010 S.C.No.126/2009 on the file of Additional Assistant Sessions Judge Chittoor 1Name and description of K. Kumar, S/o. Krishnamurthy the Appellantaged about 40 years, residing at 10-125/B, Ankisetty Street, Oldpet, Palamaner.
2Name and description of The State represented by Sub the RespondentInspector of police, Palamaner PS in SC No.126/2009 on the file of
Additional Assistant Sessions
Judge, Chittoor.
3Sentence and order and Convicted and sentenced to the Law under which it undergo RI for a period of 3 years was imposedand to pay a fine of Rs.500/- i/d to suffer SI for 15 days for the offence U/Sec.498-A IPC and he is further convicted and sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.500/- i/d to suffer SI for 15 days for the offence U/Sec.306 IPC. Both the sentences shall run concurrently. The remand period if any undergone by the accused shall be set off.
4Whether modified, In the result, I allow the appeal, confirmed or: Reversed, if setting aside the conviction and modified the details of sentence passed by the lower modification.Court against the accused for the offences U/Secs.498-A and 306 IPC, and consequently the appellant/accused is acquitted of the said charges. The bail bonds of the accused shall stand cancelled.
5Presentation of the Appeal 28-7-2010 6Filling of the appeal28-7-2014 7Date of hearing06-01-2014 8Date of Judgment10-01-2014
This appeal coming on before me for final hearing on 06-01-2014 in the presence of Sri P.V.Chakravarthy Reddy, Advocate for the Appellants, and
Additional Public Prosecutor for the Respondent, and upon perusing the
grounds of appeal and other papers on record and having stood over the consideration till this day, this court delivered the following:-
JUDGMENT
This criminal appeal is directed against the Judgment dt:22-6-2010 passed by the Additional Assistant Sessions Judge, Chittoor in
S.C.No.126/2009 whereby and whereunder the accused was found guilty for the offences U/Secs. 498-A and 306 IPC, convicted and sentenced to variant sentences.
2. The prosecution case, in brief, is as under:
Manjula (deceased) was the wife of accused. As his first wife died, the accused married deceased 11 years ago. A boy was born out of their wedlock.
The accused used to consume liquor and quarreling with her without any reason. On 25-7-2008 at about 9.30 pm the accused harrased the deceased mentally and unable to bear the harassment of the accused, the deceased committed suicide by pouring kerosene on herself and set fire. She was shifted to Government Hospital, Palamaner and then to Apollo Hospital,
Aragonda, where she succumbed to burn injuries on 28-7-2008. Earlier on 25-7-2008 at 11.30 pm basing on the statement and hospital intimation of
Manjula, the police registered a case in Cr.No.127/2008 under head “woman burnt” and investigation taken up. Later on receipt of report from
Thangamma (LW1, mother of deceased) and death intimation of Manjula, the section of law was altered to one U/Secs. 498-A and 306 IPC. Inquest was held over the dead body of the deceased at Apollo Hospital, Aragonda.
During inquest, 4 witnesses were examined. 2 more witnesses were examined at the scene of offence. A rough sketch was drawn up. On 30-7-2008 the accused was arrested. The Tahsildar, Palamaner, Nagamani (LW10) recorded the dying declaration of the deceased on the night of 25-7-2008 at
Government Hospital, Palamaner. The deceased stated that that due to harassment of the accused she committed suicide by pouring kerosene on herself and set fire. The medical officer conducted autopsy over the dead body of the deceased and issued post mortem certificate and opined that she appeared to have died of cardio pulmonary arrest due to burns. After completion of investigation the police filed charge sheet against the accused.
3. The learned Magistrate took cognizance of the offence U/Secs.498-A and 306 IPC. On appearance of the accused, the learned Magistrate has furnished copies of case documents to him as required U/Sec.207 Cr.P.C.
Since the offence U/Sec.306 IPC is exclusively triable by the Court of
Sessions, the learned Magistrate committed the case to the Court of
Sessions, after observing all the formalities as laid down U/Sec.209 Cr.P.C.
where it was numbered as SC 126/09 and made over to the Additional
Assistant Sessions Court, Chittoor. After the accused entered appearance and upon hearing the learned prosecutor and accused and on considering the material on record, charges U/Secs. 498-A and 306 IPC were framed, read over and explained the accused in Telugu, to which he pleaded not guilty and claimed trial on the said charges.
4. In order to bring home the guilt of the accused for the offences with which he stands charged, the prosecution has examined 10 witnesses and exhibited Exs.P1 to P10 documents.
5. After closure of the evidence on behalf of the prosecution, the accused was examined U/Sec.313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence led by the prosecution. The accused denied the same. He exhibited Exs.D1 and D2 documents on his side.
6. After considering the prosecution evidence, the trial Court mainly relied upon dying declaration Ex.P5 recorded by the Tahsildar (PW8), wherein the deceased stated that there was quarrel between herself and accused at 8.30 pm when the accused did not agree to give money to her and it amounts to the accused harassing and meted out cruelty to her, and thereby driven her to commit suicide. The accused was accordingly convicted and sentenced as mentioned above.
7. Feeling aggrieved by the judgment of conviction and sentence passed by the trial Court, the appellant has preferred the present appeal, raising the following grounds:
(i) The lower Court failed to consider that the essential ingredients of the offences U/Secs. 498-A and 306 IPC have not been proved by the prosecution.
(ii) The lower Court ought not to have given much importance to the evidence of PWs.1 to 5 who are interested witnesses.
(iii) The lower Court has failed to appreciate that in her 164 Cr.P.C.
statement before Magistrate (sic. dying declaration) the deceased did not make any allegations against the accused with regard to harassment and abetment to commit suicide.
(iv) The lower Court has failed to appreciate that as there are two dying declarations of the deceased, containing two different versions, the accused is to be given the benefit of doubt. The Magistrate who recorded the dying declaration has neither been cited nor examined by the prosecution, and it is fatal to the prosecution case.
(v) The lower Court has failed to appreciate that the presumption
U/Sec.113A of Evidence Act is not applicable to the case on hand, since the deceased committed suicide 14 years after marriage.
Therefore, the appellant/accused prayed this court to allow the appeal by setting side the conviction and sentence passed against him and to acquit him.
8. Heard the learned Public Prosecutor. The learned counsel for the appellant has submitted written arguments.
9. It is submitted on behalf of the appellant that PWs 1 to 3 and 5 are close relatives of the deceased, being the mother, brothers and son, and they are highly interested witnesses. Admittedly they were not present in the house of deceased when she committed suicide. PW1(mother) gave police complaint after the death of her daughter (deceased) only on 28-7-2008 i.e., 3 days after occurrence. The independent witness PW4 stated that there was no quarrel between the deceased and accused on the relevant date. It is pointed out that as per the evidence of PW1, the deceased stayed in Government
Hospital, Palamaner only for half an hour. That means, till about 10 pm, and so the claim of PW8 Tahsildar that she recorded the claim of the deceased at about 11.15 pm in that Hospital, is unbelievable, because before 10 pm itself the deceased was shifted to Ruya Hospital, Tirupati. This circumstance indicates that Ex.P5 dying declaration is created for the purpose of the case by the prosecution. In this context, it is submitted that PW8 Tahsildar has not followed the minimum requirements for recording the dying declaration. She has not obtained the opinion of the duty doctor about the mental condition of the patient. Furthermore, the duty doctor has neither been cited nor examined by the prosecution. Hence, no much weight can be given to Ex.P5 dying declaration. It is contended that Investigation Officer PW10 recorded the statement of the deceased in Government Hospital, Palamaner on the instructions of mother (PW1) and obtained thumb mark after the death of the deceased to seek support to the false case foisted by the prosecution. It is submitted that there is no direct evidence showing that the accused harassed the deceased to commit suicide. The evidence of PWs 1 to 5 is hearsay in nature, which is inadmissible in evidence. Attention is invited to the fact that dying declaration of the deceased was recorded by the Magistrate in Ruya
Hospital, Tirupati. But the Investigation Officer never visited the Ruya
Hospital or Aragonda Hospital, wherein the deceased died. It is urged that because in the dying declaration given to the Magistrate the deceased did not say against the accused, the prosecution has suppressed the said dying declaration. But the accused got it exhibited as Ex.D1. Since there are 2 dying declarations containing inconsistent versions, the accused cannot be convicted on the basis of a defective dying declaration recorded bpy Tahsildar
PW.8. Therefore, the counsel urged that the guilt of the accused has not been established by the prosecution.
10. The learned Additional Public Prosecutor, on the other hand, has contended that since the incident took place inside the house of deceased, there can be no direct evidence. It is pointed out that the first wife of accused also committed suicide. In the dying declaration Ex.P5 the deceased stated
before the Tahsildar PW8 there was quarrel between her and the accused who
came in the drunken condition to the house that evening, regarding money, that the deceased wanted him to give money for business; that he refused; that she threatened to set fire to herself if money is not given to which the accused said that she can do so. Accordingly she set fire to herself. It is submitted that since Ex.P5 dying declaration is given at the earliest point of time, the subsequent dying declaration recorded by the Magistrate is the outcome of tutoring and deliberations and so it cannot be given any credence. It is, therefore, submitted that the lower Court rightly relied upon the first dying declaration and also on evidence given by child witness PW.5 in convicting the appellant for the offences with which he is charged, and hence it does not call for any interference in the appeal.
11. The point that arises for determination in this appeal is:
Whether the lower Court is justified in holding the appellant
/accused guilty of the offences U/Secs. 498-A and 306 IPC?
12.POINT
Undisputedly the deceased Manjula and the accused are wife and husband. PW1, mother of deceased, stated that their marriage took place 14 years ago. The couple was blessed with a son. She added that her daughter was the 2nd wife to the accused. His first wife committed suicide by burning herself. She stated that she knows the said fact prior to her daughter's marriage with the accused. The accused and deceased Manjula were living at
Palamaner. PW1 deposed that the accused is having the habit of consuming liquor. He used to beat his wife in drunken condition. Her daughter (deceased) used to purchase eggs from the poultry farm and sell them by going house to house and utilising the sale proceeds for maintenance of the family. She further deposed that the accused used to beat her daughter and take away the amount from her and spend it for consuming liquor. She further stated that her daughter informed her about the harassment of the accused. She requested the accused not to harass and look after her properly.
But the accused continued harassing her daughter.
13. Speaking about the incident proper, PW1 deposed that about 9.30 pm she received a telephone call from the neighbours of the accused, informing her that the accused poured kerosene on her daughter and set fire to her. Thereupon, her sons, PWs 2 and 3, went to the house of accused. After some time PW3 came and informed that her daughter was completely burnt and admitted in the hospital. Then she (PW1) went to Government Hospital,
Palamaner and found her daughter with burn injuries all over the body. They shifted her to Ruya Hospital, Tirupati, where the doctors stated that her condition was very serious and hence they brought her to Palamaner and thereafter to Apollo Hospital, Aragonda, where she succumbed to burn injuries. Then she lodged Ex.P1 complaint with the police. PW1 stated that the accused is responsible for her daughter's death.
14. From the above evidence of PW1 (mother of deceased), it is clear that her daughter (deceased) suffered burn injuries and on being informed about the same through son PW3, she (PW1) rushed to Government Hospital,
Palamaner. The material on record shows the deceased was first admitted in hospital on 25-7-2008 at about 9.30 pm, as seen from Ex.P10 hospital intimation to police, and she succumbed to the injuries 3 days later on 28-7-2008 at 2.50 am while undergoing treatment in Apollo Hospital,
Aragonda. First she was admitted in Government Hospital, Palamaner on 25-7-2008 at 9.30 pm; then she, according the evidence of PW1 (mother), was shifted to Ruya Hospital, Tirupati and later to Apollo Hospital, Aragonda.
15. PWs 2 and 3 are brothers of the deceased. They would say about the telephone call from neighbours of the accused stating that the accused poured kerosene and set fire to her. Immediately, they rushed to the house of the accused and shifted their sister to Government Hospital, Palamaner, then to Ruya Hospital, Aragonda. Thus the evidence of PWs 1 to 3 (mother and brothers of the deceased) is hearsay in nature. Their evidence that the neighbours of the accused informed them that the accused poured kerosene and set fire to the deceased is unbelievable. It is tainted with interestedness, because the same does not stand corroborated by PW4, neighbour of the accused, or even by deceased herself who never stated such version in Ex.P9 statement recorded by PW 10 in Government Hospital, Palamaner, in Ex.P5 dying declaration given to the Tahsildar PW8, or in dying declaration Ex.D1 recorded by Tirupati Magistrate.
16. The learned prosecutor has cited the decision in Birender Poddar
V. State of Bihar (2011 (2) ALD (Crl.) 258 (SC) in support of his contention that the evidence of PWs 1 to 3 cannot be discarded on the ground that they are mother and brothers of deceased. In that decision, the Hon'ble High Court observed that the law is well-stated that merely because the witnesses are related is not a ground to discard their evidence; that on the other hand, the
Court has held that in many cases, the relations are only available for giving evidence, having regard to the trend in our present society, where other than relations, witnesses are not available. The Hon'ble High Court also observed that “it is of course true that the evidence of interested witnesses have to be carefully scrutinised”. In the case on hand, PWs 1 to 3 were admittedly not present in the house where the occurrence took place. As per their own showing, theirs is only hearsay evidence. An outsider, PW4 did not support the prosecution case. After scrutinising the evidence of PWs 1 to 3 with due care and caution, I find that they are not truthful witnesses and have given an interested version against the accused with ulterior motive. Hence the above decision has no application to the facts of the case on hand.
17. According to PW4, he heard cries from the house of accused at about 9 pm; he went there and found the deceased was in flames. He and others put out the fire and took her in auto to the Hospital after informing the family members. This witness does not say anything else regarding harassment of
Manjula by the accused and he being responsible for her death. This witness is declared hostile by the prosecution and in cross-examination by the prosecutor he has resiled from his police statement as contained in Ex.P2.
Thus, the evidence of PW4 does not help the prosecution to prove the complicity of the accused in the incident. All the same, his evidence is significant to note that he did not find the accused in the house when on hearing cries from the house of deceased he rushed there and found her in flames.
18. PW5 is the 11-year-old son of the deceased and the accused.
After satisfying itself about the capacity of the child witness from the rational answers given by him to the questions put by Court, his evidence was recorded. He clearly stated that he has been living with his maternal grand mother (PW1) since birth; that she is maintaining and looking after him. He further stated that his parents (deceased and accused) were living in a separate house at Palamaner. He proceeded to say that his father (accused) was not looking after him; that he is having the habit of consuming liquor; that he used to go home in drunken condition; that he used to abuse and beat her mother. It can be seen that even PW.5 was not residing in the house of the deceased at the relevant time and hence PW.5 is not a direct witness to any quarrel that took place in the house of the deceased. Since PW5 has been residing with his maternal grandmother (PW1) since birth, his evidence regarding the character of his father (accused) cannot be believable.
Obviously, PW5 is tutored by Pws.1 to 3 to speak against his father.
19. The learned prosecutor has cited the decision in Racha Ashok V.
State of Andhra Pradesh (2011 (1) ALD (Crl.) 678 (AP) in support of his contention that the evidence given by a child witness can be relied upon. In that case, the evidence of 9 years old daughter of deceased who was present in the scene of offence and had seen the incident of accused pouring kerosene on deceased and lit fire which took place at 9.30 pm and that was the time when the children will be active, was found natural and truthful, especially when it was corroborated by the evidence of mother and brother-in-law of deceased and hence the Honourable High Court held that the presence of child witness at the scene of offence can be believed and her evidence can be safely relied upon. But in the case on hand, the child witness PW5 is admittedly not present with the deceased (mother), but since birth has been residing in the house of his maternal grandmother (PW1) and he did not witness any incident in the house of the deceased. Hence the said decision has no application to the facts of the present case.
20. The disquieting feature in this case is that the prosecution has deliberately suppressed the dying declaration of the deceased recorded by
Magistrate in SVRRGG Hospital, Tirupati. As a matter of fact, there is no
whisper in the charge sheet that the Tirupati Magistrate recorded dying declaration of deceased. The Tirupati Magistrate is not cited in chargesheet even. The reason behind it is exposed when the accused realized it at the end of the trial and filed a petition U/Sec.95 Cr.P.C. to receive the dying declaration recorded by Tirupati Magistrate. In fact, official memo was issued on 18-3-2009 by the learned Magistrate to the SHO to clarify the defect. The SHO submitted a letter stating that the 'entire prosecution case relies upon the dying declaration recorded by Tahsildar ... but not on the subsequent dying declaration recorded by the Tirupati Magistrate'. This stand of the Investigating Officer is unsustainable in law. It is the bounden duty of the Investigating Officer to place on record all the material collected during investigation regardless of the fact whether they are in favour of prosecution or the accused. The accused filed certified copy of the dying declaration recorded by the Magistrate. The accused stated that in that dying declaration it was stated the deceased herself poured kerosene on her and set fire and asserted that nobody is responsible for such incident. The docket proceedings of the trial Court revealed that the certified copies of requisition and the dying declaration recorded by the Tirupati Magistrate produced by the accused are marked as Ex.D1 and D2 with consent of Additional Public
Prosecutor on 19-4-2010, by holding that “the original of Ex.D1 and D2 are already available in the case bundle”. The matter was postponed to 28-4-2010 for arguments. On that day, arguments heard and posted the case to 28-4-2010 for judgment. On that day, the case was adjourned as judgment was not ready to 30-4-2010. On 30-4-2010 the matter was reopened as it is noticed that in the record the certified copy of DD and intimation marked as
Ex.D1 and D2 with concent of Additional Public Prosecutor “are not available in record”; office was directed to place the same in the record. Thereafter the case underwent several adjournments to trace the Exhibits. Eventually on 8- 6-2010 it was noted that the documents were traced. Curiously, the record reveals original requisition and dying declaration were sent by the IV
Additional Civil Judge, Tirupati to the Senior Civil Judge, Palamaner by
covering letter on 26-7-2008 itself. The same were received by Palamaner
Magistrate on 29-7-2008, as evident from date seal and initial of presiding
officer. The office gave marking to this original document as Ex.D1 and D2 but the presiding officer's signatures were not obtained thereon. With the result, the certified copies, Ex.D1 and D2 duly marked are available on record.
21. Thus 3 declarations of the deceased are available on the record, viz.,
1. Ex.P9 statement given by Manjula (deceased) to Head Constable
PW.10 on 25-7-2008, as per requisition Ex.P10 given by Civil
Assistant Surgeon, Area Hospital, Palamaner intimating that
Manjula was admitted in the hospital on 27-7-2008 at around 9.30 pm. This statement given at the earliest point of time becomes a dying declaration as Manjula is a dead person and the said statement relates as to the cause of her death and it becomes relevant U/Sec.32 of the Evidence Act.
2.The dying declaration Ex.P5 recorded by Tahsildar PW8 on 25-7-2008 at 11.15 pm and
3. The dying declaration recorded by Smt.A. Saikumari, IV Additional
Civil Judge, Tirupati at 9.15 am on 26-7-2008 in SVRRGG Hospital,
Tirupati (Ex.D2), after receiving Ex.D1 requisition from the
Hospital.
22. A reading of the above 3 dying declarations discloses that they are inconsistent with each other. In the first one (Ex.P9) it was stated that on the fateful day the accused came home on 9.30 pm and asked the deceased to give money to consume liquor; that when she answered that she had no money, arguments took place, that vexed over life, she poured kerosene over her body and set fire. In particular, she specifically stated that the neighbours “and her husband” (accused) came and put out the fire and shifted her to
Hospital.
23. Coming to the 2nd dying declaration, Ex.P5, the version contained therein is that the husband (accused) came home in drunken condition that day at 8.30 pm; both on them quarreled over money, as she wanted money in connection with her business, the accused refused to give money; that if money is not given she would burn herself; that the accused said she could do so. In the 3rd dying declaration, Ex.D1, recorded by Tirupati Magistrate, a totally different version is given that her husband (accused) works in a Hotel and gets income; that he is not giving money in the house properly; that yesterday (which means 25-7-2008) morning she asked him for money; that money was not given by him in the evening after returning from work; that at about 8 pm since the accused did not give money, she herself poured kerosene available in the house and lit fire to herself. She asserted that no one is responsible for her burn injuries.
24. Thus it is manifest that out of 3 dying declarations, only one i.e.,
Ex.P5 recorded by Tahsildar, PW8, inculpates the accused. I shall now examine whether reliance can be placed on Ex.P5 dying declaration recorded by Tahsildar, PW8.
25. PW8 is working as Tahsildar, Palamaner since 2007. She deposed that on 25-7-2008 at about 11 pm she received a message from Government
Hospital, Palamaner to record the dying declaration of Manjula. She immediately rushed to hospital, identified the patient, introduced herself to her. At that time, the patient was in conscious state of mind. She was also in fit state of mind to give her statement. At that time the duty doctor was also present. Then she has recorded the statement of Manjula, who affixed her LTI on statement recorded by her. Ex.P5 is the statement recorded by her while
Ex.P6 is the doctors requisition. Strangely, PW8 Tahsildar deposed that she also recorded the statement of PW1 (mother of Manjula) as per Ex.P7.
26. I have no hesitation in rejecting the above evidence of PW8, as the same is a clear improvement. She appears to have given deposition after due briefing. First of all, her evidence that the patient was in conscious state of mind and also in fit state of mind to give statement stands unsupported by the very statement Ex.P5. A look at Ex.P5 reveals that it bears absolutely no endorsement of the duty doctor, leave alone PW8 herself, as to the mental condition/fitness of the maker to give statement. The statement is written straightaway on a paper, LTI of the maker taken at right side end of the page and PW8 put her signature and put stamp. Secondly, even though Ex.P6 requisition given by the doctor wanted the Tahsildar PW8 “to take dying declaration of the patient”, the Tahsildar went a step further and recorded the statement of mother of the patient (Thangamma – PW1) and took her LTI.
Quite unnaturally, the doctor endorsed on left side of the requisition Ex.P6 that “dying declaration taken by Tahsildar on 25-7-2008 at 11.15 pm from patient and at 11.30 from mother”. It is intriguing to find as to why the doctor made such endorsement and why Tahsildar PW8 recorded statement of PW1.
Furthermore, in the charge-sheet or letter of SHO to the Magistrate in reply to official memo, it is not stated that the Tahsildar recorded statement of mother (PW1) also in Hospital. It is only on the subsequent complaint of PW1
Ex.P1 after death of deceased on 28-7-2008 that the section of law was altered.
27. Above all, Ex.P6 requisition is on a full plain paper in contrast to the earliest requisition Ex.P10 given by the same doctor to the Palamaner police, which appears on a ruled half-paper, but it contained details like time of sending as 10 pm on 25-7-2008 and time of admission as 9.30 pm.
Subsequent requistion Ex.P6 to the Tahsildar is conspicuously silent as to the time of sending intimation and time of admission, but the time of recording statement not only of patient but also of her mother were written.
28. These features certainly vitiate Ex.P5 and P6. It is compounded by the further fact PW1 mother categorically stated that they stayed in Palamaner
Hospital for about half an hour. Since Ex.P10 the requisition discloses that the patient was brought to the hospital at 9.30 pm, the statement of PW1 goes to show that they were in hospital till about 10 pm. Since PW1 is an illiterate woman, she cannot be expected to give time precisely, but even giving a margin of one hour time, since the requisition to the Tahsildar Ex.P6 did not contain time of admission or time of sending intimation, the mention of 11.15 pm by the Tahsildar in Ex.P5 becomes doubtful. Here it is pertinent to note that PW10 Investigating Officer categorically stated that he examined victim at about 11.30 pm, and that he stayed in hospital for about 20 minutes. He too did not obtain endorsement of duty doctor in Ex.P9 about the mental condition/fitness of the victim. Anyway, in Ex.P6 intimation also there is no whisper by the duty doctor about the mental condition/fitness condition and conscious state of mind of the patient to make the statement. As already stated, Ex.P5 dying declaration recorded by Tahsildar PW8 also does not contain such endorsement either of doctor or by the Tahsildar. That apart,
PW8 made no endorsement in Ex.P5 to the effect that she read over the statement to declarant and she admitted the same to be true and correct. To cap it all, the doctor (Dr.Aswini) of Palamaner Hospital who intimated the police as well as the Tahsildar is not cited nor examined by the prosecution.
In the light of these lacunas and infirmities, I am of the considered opinion that it is not at all safe to place reliance on Ex.P5. Serious prejudice is caused to the accused by the above suspicious circumstances which remained unexplained by the prosecution.
29. Inasmuch as I found the evidence of child witness Ex.P5 as unbelievable and since PWs. 1 to 3 being mother and brothers of deceased have given an interested version and theirs is only hearsay evidence, and since
PW4 did not support the prosecution case and particularly the trial Court relied upon Ex.P5 dying declaration to record a finding of guilt on the accused and I found that Ex.P5 is vitiated and tainted with so many suspicious features, I hold that the trial Court has committed an error of law in finding the accused guilty for the offences with which he is charged and convicting him. The trial Court had clearly committed a legal error in placing reliance upon Ex.P5 and has failed to consider the impact of 2 more dying declarations available on record on the case, namely, Ex.P9 recorded by Head
Constable Ex.P10 and Ex.D1 recorded by Tirupati Magistrate. The trial Court has not appreciated Ex.D1 in right perspective and erroneously drawn the inference that the statement in Ex.D1 that accused did not give maintenance to the deceased amounts to harassment and cruelty.
30. In the view that I have taken in the matter, I feel it unnecessary to refer to the catena of decisions cited by the learned defence counsel, which concern the question as to when the conduct of accused amounts to abetment and when it constitutes the offence U/Sec 306 IPC.
31. For the forgoing discussion, I hold that the prosecution has miserably failed to bring home the guilt of the accused for offences U/Secs.498-A and 306 IPC. Therefore the conviction of the appellant/accused for the said offences is not valid, legal and unsustainable in law and the same is liable to be set aside. The point is answered accordingly.
In the result, I allow the appeal, setting aside the conviction and sentence passed by the lower Court against the accused for the offences
U/Secs.498-A and 306 IPC, and consequently the appellant/accused is acquitted of the said charges. The bail bonds of the accused shall stand cancelled.
Dictated to the Personal Assistant, after transcription by her,
corrected by me and pronounced in open court, this the 10 th day of
January, 2014.
Sd/- M.Srikantha Chary,
VIII Additional District Judge Chittoor.
Fair Judgment in C.A.No.159/2010
Dt:10-01-2014.