S. C. No.109/2016 Dt.21-12-2021.
IN THE COURT OF SESSIONS DIVISON AT SRIKAKULAM
IN THE COURT OF IV ADDITIONAL DISTRICT & SESSIONS JUDGE FOR
THE TRIAL OF OFFENCES UNDER SECTIONS SC/STS (POA) ACT,
AT SRIKAKULAM.
Present:- Sri Tirumala Venkateswarlu, II Additional District Judge, Srikakulam. (FAC) IV Addl. District Judge, Srikakulam.
TUESDAY, THIS THE 21 ST DAY of DECEMBER, 2021
SESSIONS CASE No.109/2016
(PRC No.9/2015 on the file of Judicial Magistrate of 1st Class, Palakonda in Crime No.22/2015 of Veeraghattam Police Station) Between:-
State represented by the Sub Divisional Police Officer, Palakonda, Srikakulam District. … Complainant.
And:
1. Sri Dhanaparthi Govindarao @ Govinda, son of Ganesh, aged 24 years, Kapu caste, resident of Buruga Village, Veeraghatam Mandal.
2. Smt. Dhanapathi Laxmi @ Jaggamma, wife of Ganesh, aged 48 years, Kapu by caste, rest do. … Accused
Prosecution conducted by:Sri M.Malleswararao, Special Public Prosecutor, Srikakulam.
Accused was defended by: Sri P.Seethannaidu, Advocate for Accused.
Offence charged :Under sections 304-B, 498-A read with 34 of Indian Penal Code.
Plea of the accused : Pleaded not guilty.
Finding of the Judge : Found guilty.
Sentence or order :In the result, accused 1 & 2 are found guilty for the offences under section 304-B and 498-A IPC and they are convicted under section 235(2) Code of Criminal Procedure.
This case coming on for final hearing before me in the presence of Sri Metta Malleswararao, learned Special Public Prosecutor for the 2 S. C. No.109/2016 Dt.21-12-2021.
Complainant/State and of Sri P.Seethannaidu, learned Advocate for the accused and upon hearing both sides and having stood over for consideration, this Court delivered the following:
JUDGMENT
Dhanaparthi Govindarao @ Govinda, son of Ganesh (A1), and his mother, Dhanapathi Laxmi @ Jaggamma (A2) are facing charges under sections 304-B and 498-A of the Indian Penal Code.
02.The case of the prosecution is that deceased Sumalatha is the daughter of Batchala Narayanamma (P.W1). She was married to A1 in the year 2012. At the time of marriage, P.W1 gave cash of Rs.1,50,000/-, 3 tolas of gold, and the household articles to the accused. Deceased joined
A1 and lived happily for 6 or 7 months. She conceived pregnancy.
Thereafter, A2 harassed the deceased and used to ask her to die, so that she would perform another marriage to A1. A1 used to consume liquor every day and beat the deceased. The deceased used to inform the harassment to P.W1. P.W.1 used to send Rs.1000/- or Rs.2000/- to the deceased subject to the availability of money with her. Later deceased gave birth to a female baby. After the birth of a female baby, A1 increased the harassment, telling that as the deceased gave birth to a female baby, the dowry she brought was not sufficient. A1 used to beat the deceased in the presence of her parents in their house and used to take her back. Thus deceased, on 27.03.2015 at 7.00 a.m., doused herself with kerosene and set her on ablaze. A1 informed the said fact to Batchala Kurminaidu (P.W.2), the brother of the deceased, and both P.W.1 and P.W.2 visited the hospital and they questioned the deceased about the cause of suicide and the deceased informed them that since 10 days, A1 and A2 did not give her food; that A1 beat her severely and both the accused harassed her.
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Later the deceased was shifted to KGH Visakhapatnam, where she succumbed to injuries. P.W.1 gave a report under Ex.P1.
03.Sri R.Srinivasarao (P.W.25), the Sub-Inspector of Police,
Veeraghattam P.S., having received the hospital intimation under Ex.P17, first proceeded to the Palakonda Area Hospital and then having come to know that the deceased was shifted to RIMS Hospital, he went to the said hospital and recorded the statement of deceased under Ex.P18. Based on
Ex.P18, he registered a case in Crime No.22/2015 for the offence punishable under section 498-A read with 34 of Indian Penal Code and sections 3 and 4 of Dowry Prohibition Act and he issued Ex.P19 First
Information Report. In his investigation, he recorded the statement of the deceased, visited the scene of occurrence, and prepared a report under
Ex.P20 in the presence of Pilla Anjaneyuyulu (P.W.17) and Kidimi
Narasimha Naidu (P.W.20). From the scene of occurrence, he seized the kerosene tin and matchbox and half fired match stick and half-burnt nighty.
He prepared a rough sketch under Ex.P21. He collected photographs of the deceased and A1, which were taken at the time of their marriage. Sri
Y.Srinivasarao (P.W.21), Special Judicial Magistrate of I Class, Proh. &
Excise Court, Srikakulam on 27.03.2015 at 10.30 a.m., visited RIMS
Hospital and recorded the dying declaration of the deceased under
Ex.P12. Later she was shifted to King George Hospital, Visakhapatnam and there she succumbed to injuries on 03.04.2015. This Officer visited
KGH took photographs of the deceased under Ex.P22.
04.Sri P.Ramarao (P.W.23), Assistant Sub-Inspector of Police,
Veeraghattam Police Station, on 03.04.2015, received the death intimation and altered First Information Report under Ex.P15, for the offence punishable under section 304-B, 498-A read with 34 of Indian Penal Code.
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Sri Ch.Adinarayana (P.W.24), the Deputy Superintendent of Police, having received the First Information Report, took up investigation. He requested
Tahsildar, Veeraghatam to conduct the inquest. Sri M.V.Ramana (P.W.19), the Tahsildar, Veeraghatam on 03.04.2015 at 12.00 noon conducted the inquest under Ex.P9. On the same day Dr. P. Venkata Ramana Rao (P.W.22), conducted a postmortem examination under Ex.P14. He found the following injuries on the body:
“1) An infected dermo-epidermal burns present all over the body except the top and back 1/3 rd of the head, right armpit region and adjoining chest region, plantar aspect of both feet, tips of fingers of both hands, greenish- yellow colour foul-smelling pus present at burnt areas with superficial to deep sloughing. Singing of hair present. Faint kerosene-like smell present at burnt areas and on top and back of the head. Area: About 90 to 95% total body surface area. There are no other antemortem injuries present on/in the body except noted infected burns. The time since death is within 24 hours before postmortem examination. The cause of death is septic shock due to infected burns.”
05.The Investigation Officer, in his further investigation, examined the witnesses, arrested A1 and A2 on 05.04.2015, and after observing the formalities, they were sent to Court for remand. He sent the material objects to FSL. He got the statements of witnesses recorded under section 164 Cr.P.C. He received FSL report under Ex.P16. After the receipt of all the documents, he laid the charge sheet.
06.The Judicial Magistrate of I Class, Palakonda took the cognizance of the case for the offences punishable under sections304-B and 498-A read with 34 of Indian Penal Code in P.R.C.No.9/2015 and since the case was 5 S. C. No.109/2016 Dt.21-12-2021.
exclusively triable by Court of Sessions, after following the procedure contemplated under section 209 of Code of Criminal Procedure, he committed the case to Sessions Court and the Sessions Court took the case on file as S.C.109/2016 and made over the same to this Court for trial.
07.On the appearance of the accused and after hearing the learned
Additional Public Prosecutor and the defence counsel, charges under
sections 304-B and 498-A of Indian Penal Code were framed, read over, and explained the charges to the accused and the accused denied the charges and claimed to be tried.
08.In the trial, the prosecution examined P.W.1 to P.W.25 and marked
Ex.P1 to P24. Since the property, which was submitted to the committal
Court and received vide C.P.140/2015 could not be traced, at the request of the learned Additional Public Prosecutor, the photocopy of Form-66 was brought on record and marked as Ex.P23. For defence Ex.D1 is marked from the Sec.161 Cr.P.C., statement of PW1.
09.After the closure of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure and explained to them all the incriminating circumstances that appear in the evidence and the accused expressed their innocence. They reported no evidence on their behalf.
10.Heard the learned Special Public Prosecutor and the learned defence counsel. The learned Special Public Prosecutor argued that it was a dowry death case and A1 and A2, who were the husband and mother-in- law of the deceased, harassed the deceased with demand for additional dowry and A1 used to physically assault the deceased with demand for dowry and unable to bear with the said continuous harassment, deceased 6 S. C. No.109/2016 Dt.21-12-2021.
took the extreme step of committing suicide. The learned Special Public
Prosecutor argued that the Head Constable recorded the statement of the deceased at the hospital and later the Judicial Magistrate of I Class,
Srikakulam recorded the dying declaration and apart from this dying declarations, the evidence of P.W.1 to P.W.7 is consistent about the harassment and thus urged for conviction of the accused for the offences punishable under sections 304-B and 498-A of Indian Penal Code.
11.On the other hand the learned defence counsel argued that it was an accident. According to the learned defence counsel, the family of the accused had been using the traditional firewood stove and the deceased might have caught fire accidentally. The learned counsel referred to the evidence that there were no disputes between the couple till the birth of the female child. It is argued that both the families are not financially sound and A1 is a Tapi Mastry and A2 is a coolie. The learned counsel then argued that as per the material on record, the deceased suffered 95% burns and hence the evidence of prosecution that she gave statements
before the Police, the Magistrate, and the family members cannot be
believed. The learned counsel referred to the evidence of P.W.1, where she deposed that her daughter was unable to speak and deceased only uttered the word “Aakali”. The learned counsel then would submit that the inquest did not disclose that there was a kerosene smell on the dead body.
The learned counsel also referred to the evidence of the learned
Magistrate, who recorded the dying declaration that there were blood
relatives of the deceased in the hospital. It was elicited from the Magistrate that he did not observe the case sheet to know whether any sedatives were given to the deceased. According to the learned counsel, in cases of burns, it is very common for doctors to give sedatives to alleviate pain. The 7 S. C. No.109/2016 Dt.21-12-2021.
learned counsel pointed out that the mention of kerosene smell in the postmortem examination report under Ex.P14 is incorrect, as the death occurred 7 days after the incident. Thus according to the learned counsel, the alleged declaration of the deceased that she had committed suicide because of the harassment from A1 and A2 was the result of tutoring and the same cannot be believed. In support of his arguments, the learned defence counsel relied on the following judgments:
1) Aravind Vs. State of Bihar1.
2) Smt. Laxmi Vs. Om Prakash and others2.
3) Sushilkumar Sarma Vs. Union of India and others3.
4) Poonam Bai Vs. State of Chatishgarh4.
5) Sampath Bapso Kale and another Vs. State of Maharastra5.
6) Jayamma and another Vs. State of Karnataka6.
7) State of Haryana Vs. Angurude7.
12.Now, the point for determination is:
Whether the prosecution brought home the guilt of the accused beyond all reasonable doubt?
13.POINT:-
Deceased Sumalatha on 27.03.2015 at 7.00 a.m., said to have doused herself with kerosene and set her on fire. Sri R.Srinivasarao (P.W.25) visited RIMS Hospital, Srikakulam and after conforming himself that the deceased was conscious to give a statement with the certification
1. 2001 (2) ALT (Crl) 1995 (SC).
2. 2001 (2) ALD (Crl.) 159 (SC).
3. 2005 (2) ALD (Crl.) 633 (SC).
4. 2019 SAR (Crl.) 774.
5. 2019 SAR (Crl.) 626.
6. 2021 SAR (Crl) 656.
7. 2019 SAR (Crl) 947.
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of the Medical Officer, recorded the statement of deceased under Ex.P18.
This is the first declaration of the deceased about the cause of her death.
In this statement, the deceased stated that she was married to A1 about 2 years ago; that they lived amicably; that she had a daughter, aged 9 months, named as Janaki; that A1 used to attend to Mason work; that on 26.03.2015, A1 returned from his work in the night; that she had told A1 that he would spend all his money for his drinking and how could she manage the family; that she had asked for money; and in that connection, they had quarreled with each other. She further stated that her husband and mother-in-law together used to harass her with a demand for more dowry and used to speak hurting words; that her mother-in-law used to abuse her as ‘sani lanja’ and ‘ranku lanja’ and her husband used to beat her. She also stated that her mother-in-law used to say always that she gave birth to a female baby and; that her mother-in-law used to behave with disgrace and thus on 27.03.2015 at 7.00 a.m., she poured kerosene on her body and lit the fire. She stated that in the said incident, her face and her entire body suffered burns. She was brought to Palakonda Area
Hospital and at the advice of the doctors, she was shifted to RIMS
Hospital, Srikakulam. She declared that it was a true statement and she was read over the statement and found the same to be correct. This statement of the deceased shows her thumb impression. Based on the statement, P.W.25, initially registered a case in Crime No.22/2015 for the offences punishable under section 498-A read with 34 of Indian Penal
Code and sections 3 and 4 of Dowry Prohibition Act on 27.03.2015 at 2.30 p.m.
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15.On 27.03.2015 at 10.30 a.m., Sri Y.Srinivasarao, Special Judicial
Magistrate of I Class, Proh. & Excise Court, Srikakulam recorded the dying
declaration, marked as Ex.P12. This is the second declaration of the deceased, brought into evidence. In this dying declaration, the learned
Magistrate, initially put some preliminary questions to ascertain whether
the declarant was in a fit condition to give a statement. They are:- 1) what was her name?; 2) what was her husband’s name?; 3) whether she knew him as a Magistrate? And 4) where she was at that moment? Having received coherent answers for the above questions, the learned Magistrate recorded a statement about the condition of the declarant that she was in a fit condition to give a statement. Apart from that, the learned Magistrate obtained the certificate from the Medical Officer, who endorsed as “patient is conscious and coherent to give dying declaration”. Then the learned
Magistrate recorded the dying declaration in ‘questions and answer’,
format. The substance of the declaration runs as follows:
“She suffered burns at 7.00 a.m., in the morning. She suffered burns because of harassment from her husband and her mother- in-law, Her husband and mother-in-law used to harass her daily, telling her that she did not bring anything and used to harass her with abusive words. Thus she decided that she should not live with them. Her husband used to beat her daily having come in drunken condition. Her husband Govind and her mother-in-law Jaggamma were responsible for the said incident. Because of her husband and mother-in-law, she poured kerosene on her and lit fire to herself. Her husband always used to threaten that he would kill herself and her parents. She had a daughter Janaki and she wanted her. Her husband and mother-in-law had been harassing her from the time when she had gone to her parent’s house for delivery. Her father-in-law Ganesh put off the flames and saved 10 S. C. No.109/2016 Dt.21-12-2021.
her. Her husband and her mother-in-law were responsible for her death.”
16.After extracting the above answers, the learned Magistrate obtained the certificate from the Medical Officer, wherein, it was said that the patient was conscious and coherent and she was in a fit state of mind, till the end of recording the dying declaration. The learned Magistrate also gave his endorsement at the end, saying that he had found 95% burns; that while recording dying declaration, except the doctor, his Process Server
Narayanamurty, no others were allowed with the patient. It was then certified that the patient was conscious and coherent till the end of recording the Dying Declaration. He obtained the left-hand thumb impression of the deceased on the dying declaration and completed the recording by 11.05 a.m.
17.Before proceeding further it is necessary to have an idea about the value of a dying declaration in a criminal trial and to what extent the dying declaration can be relied on. In Arvind Singh case (cited above), the
Apex Court made it clear that a dying declaration can be relied upon without seeking corroboration unless it suffers from any infirmity.The relevant observations are as follows:- “Though the earlier view of this Court in Ramnaths case [Ram
Nath Madhoprasad & Ors. v. State of Madhya Pradesh: AIR 1953
SC 420] stands overruled by a five-Judges judgment in the case of
Tarachand Damu Sutar v. State of Maharashtra [AIR 1962 SC 130] but there is no denial of the fact that dying declaration ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination. The same is the view taken in a case reported in AIR 1976 SC 2199 [Munnu Raja and Another v. State of Madhya Pradesh] wherein this Court stated:
11 S. C. No.109/2016 Dt.21-12-2021.
It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration.
In the same year this Court in the case of K. Ramachandra Reddy & Anr. V. The Public Prosecutor [AIR 1976 SC 1994] observed:
The dying declaration is undoubtedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross- examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.
A dying declaration which has been recorded by a competent
Magistrate in the proper manner, that is to say, in the form of
question and answer and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. In order to test the reliability of a dying declaration, the 12 S. C. No.109/2016 Dt.21-12-2021.
Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties AIR 1958 SC 22: Rel.
on.”
18.From the above authority, it can be understood that in cases of dying declarations, recorded by a Judicial Magistrate, in question and answer format and in the words of the declarant to the possible extent, the said declaration has the higher probative value. From the evidence of the above
Judicial Magistrate, it is found that he had taken all the required precations
and recorded in the question and answer format and in the words of the declarant to the possible extent.
19.At this stage, it is also relevant to note that before the deceased had taken her last breath after 7 days, the kith and kin, including family members and friends came to see the deceased at the hospital. She spoke to those persons about the cause of death and they all are nothing but dying declarations. Narayanamma (P.W.1) is the mother of the deceased.
She stated that on coming to know the incident, she went to Veeraghatam and came to know that her daughter was shifted to RIMS Srikakulam and she went to RIMS Srikakulam and she asked her daughter. The deceased informed P.W.1 that she was not given food for 10 days and she was beaten by A1 and was harassed by both the accused and due to unbearable harassment, she poured kerosene and set fire to herself.
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Kurmi Naidu (P.W.2) is the brother of the deceased. He deposed that he went to RIMS Srikakulam and enquired his sister about the incident and his sister stated to him that A1 used to come home taking liquor and used to beat her; that both the accused harassed her and both the accused asked her to die and due to unbearable harassment, she committed suicide. Nidavasi Laxmi (P.W.3) is the sister of the deceased. She deposed that her brother informed the incident and she along with her husband went to Palakonda Hospital. On the advise of doctors at Palakonda, her sister was taken to RIMS Hospital, Srikakulam. Her younger brother, her mother and others came to RIMS Hospital. Her mother enquired the deceased and deceased informed her mother that due to harassment from both the accused, she committed suicide. According to her, her deceased sister further told that A2 used to abuse her as “sanidana” and due to unbearable harassment, she poured kerosene on her body and set fire.
One Gorla Rajagopal (P.W.4) deposed that he had acted as mediator and mother of deceased informed him about the incident and he went to
Government Hospital to see the deceased and on his enquiry, deceased informed him about the harassment from both the accused. Kandi
Chinnatalli (P.W.6) is the elder sister of deceased. She deposed that at the hospital, the deceased told her about the harassment by the accused.
Govindamma (P.W.7) is the friend of the deceased. On coming know about the incident, she visited Ponduru Care Hospital and on her enquiry, deceased told her that the accused harassed her every day and she committed suicide, as there was no other go. B.Hymavathi (P.W.11) is the wife of Kurminaidu (P.W.2). She deposed that herself and her husband went to RIMS Hospital, Srikakulam and deceased told her that the accused 14 S. C. No.109/2016 Dt.21-12-2021.
did not provide food since Ugadi festival and in view of the harassment by the accused, she poured kerosene and set fire to herself.
20.The defence took a plea that deceased caught fire accidently, while cooking food with the traditional fire wood stove. Now this witness
Hymavathi (P.W.11) deposed that A1 made a phone call to her husband and stated that deceased committed suicide by pouring kerosene and setting fire. This fact of information from accused about the suicide attempt by the deceased is not disputed in the cross-examination.
21.With the evidence of above said witnesses, it is proved that before the deceased succumbed to injuries after 7 days, the above said persons visited the hospital and enquired with the deceased and deceased told all of them that because of the harassment in the hands of A1 and A2 only, she committed suicide. This oral evidence of these witnesses corraborated the written dying declarations, recorded by the Judicial Magistrate as well as Police Officer.
22.So far the cause for harassment, according to the deceased, A1 and
A2 harassed contending that she did not bring anything from her parents.
A1 used to come in drunken condition and used to beat her every day. A1 said to have threatened the deceased to kill herself and her parents.
Though the words are changed, the substance is one and the same under
Ex.P18 the statement to the police and Ex.P12 the dying declaration. In
ExP18, the demand for dowry and the abuses as ‘sanilanja’ and ‘ranku lanja’ are mentioned. These words were spoken to by some of the witnesses, who talked to the deceased. The drinking habit of A1 and the quarrel with the deceased is mentioned in Ex.P18. The above witnesses namely, mother, brother and sister deposed about the alleged harassment of the deceased. Not only this family members, but outsiders namely one 15 S. C. No.109/2016 Dt.21-12-2021.
Gorle Rajagopal and Gorle Gowrinaidu deposed about the disputes between the couple. Both of them deposed that after the birth of female child, the accused started demanding for additional dowry. No doubt there is evidence to show that deceased and A1 used to spend 2 or 3 days at
Visakhapatnam and 20 days before to the occurrence, the couple visited
Tirumala and directly proceeded to the house of A2. However these facts cannot be taken as a proof that there was love and affection between couple.
23.At the trial, the learned counsel also pointed certain omissions and contradictions in the statements of the witnesses before the Police. During the cross-examination of P.W.1, Ex.D1 was marked from her statement
before the police that since the birth of female baby, A1 and A2 were
harassing her daughter with a demand for Rs.5 lakhs and her daughter used to inform her whenever she comes to house. The emphasis in contradiction may be with regard to demand for specific amount of Rs.5 lakhs. P.W.1 might have omitted to say about the quantum of Rs.5 lakhs in her evidence, but the substance is not changed and she stated that since the birth of female baby, A1 and A2 harassed her with demand for more dowry. P.W.2 did not state before the Police that they have given
Rs.1,50,000/- cash and 2 tolas of gold, nor he stated about sending
Rs.1000/- and Rs.2000/- to his sister, nor about purchase of TVS Star City
Motor bike. Because of these improvements, it is not possible discard the rest of his evidence.
24.The other omissions pointed out by the learned defence counsel is in the evidence of P.W.3, P.W.4 and P.W.6. P.W.3 did not state before the
Police that 5 months later to birth of female baby, accused started increasing the harassment. P.W.6 stated to the Police that the couple lived 16 S. C. No.109/2016 Dt.21-12-2021.
hospital for some time. P.W.6 omitted to say that deceased told him at the hospital about the harassment from the accused. Some more omissions are noted in the evidence of P.W.7, 11 and 12. According to the learned defence counsel, P.W.7 did not state before the Investigation Officer that he went to Ponduru Care Hospital and deceased informed her about the harassment from the accused. P.W.11 did not state before the Police that her husband and mother-in-law accompanied her to Ponduru Hospital.
P.W.12 did not state before the Police that deceased informed her five times about the harassment. P.W.14 did not state before the Police that there was amicable settlement between accused and deceased. These omissions are not material omissions, which amount to contradictions, which create a reasonable doubt about the alleged harassment from A1 and A2.
25.In Arvind Singh case (cited above), the defence took the very same plea of accidental fire and the same was accepted by the Courts.
However, the facts therein are different. Prosecution relied on an oral declaration, alleged to have been made the deceased to her mother, and then within no time, she succumbed to burn injuries. While rejecting the prosecution story, the Apex Court observed as follows:- “The defence story of early morning/burst by reason of warming up of milk from the kitchen has not been accepted as true and plausible explanation for the injury by either of the courts but does that mean and imply that necessarily therefore the husband was guilty of murder. The answer cannot be in the affirmative. As the experience goes this unfortunate trend has turned out to be a growing menace in the society and does not warrant any sympathy whatsoever but that does not however mean non adherence to even the basics of the law. When the parents arrived the girl was lying on the bed and without there being any 17 S. C. No.109/2016 Dt.21-12-2021.
evidence as the state of the linen, the cot and the surroundings. Is this an omission without having any impact on the entire prosecution case?
Let us, however, scrutinise the evidence in little more greater detail: the mother was informed about the daughters burn injury at night the parents arrived in the morning finds the daughter in the bed room with excessive burn injuries without however any mention of the impact on the surroundings the deceased supposed to have made a statement to the mother that the in- laws and the husband on a conjoint move poured kerosene on to her and threw a lighted match stick so as to cause burn injuries last of the evidence is that the deceased immediately after such communication passed away without any medical assistance would this evidence be sufficient to prove the charges even under
Section 304B and 498A for apart the conversion thereof to 302 by the High Court? We are afraid the evidence is not sufficient enough to reach an irresistible conclusion of the involvement of the husband as the murderer or even being charged with an offence under Section 304B IPC.”
In the case on hand, the deceased gave a statement to a police officer. She gave a declaration before a Judicial Magistrate. She alleged to have talked to her entire family, indicating the role of A1 and A2 in the incident. Apart from that deceased could survive for 7 days, which makes all the difference with the above-cited case.
26.In Smt. Srilakshmi case (cited above), the Apex Court summarised the facts and the relevant paras are hereunder extracted:
“The deceased Janak Kumari died an unnatural death on 8.3.1982 having sustained extensive burn injuries on 7.3.1982.
She was aged about 25 years at the time of her death. Six years before the date of the incident she was married to the accused Om Prakash. The couple had a female child aged about 5 years at the time of the incident. They lived with Smt.
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Ram Pyari and Kumari Shakuntala, the two co-accused and respectively mother and sister of the accused Om Prakash.
Unfortunately, Janak Kumari and Om Prakash could not carry on well and their marital relationship suffered a jolt so much so that on 14.11.1980 on a complaint made by Janak Kumari an offence under Section 385 IPC and Section 4 of Dowry
Prohibition Act was registered at P.S. Pahar Ganj, Delhi against these three accused persons. However, the case was consigned to record room on 9.3.1982 under the order of the
Metropolitan Magistrate. There were divorce proceedings also initiated by Om Prakash against Janak Kumari which ended in a compromise in December 1981 whereunder Janak Kumari joined back the matrimonial home.
On 7.3.1982 at about 7.20 a.m. the accused Om Prakash informed the police control room on telephone that his wife had set herself unto fire having poured kerosene oil on herself. This information was received by S.I. Badri Nath, PW 19 who directed the police control room van (PCR Van) to rush to the place of the incident. Simultaneously he conveyed message to
P.S. Pahar Ganj where it was recorded in the Roznamcha,
Exhibit PW 14/E. SI Ramesh Chand Garg, PW 21 was handed over a copy of Exhibit PW14/E for necessary action. ASI Shiv
Charan PW 5 reached the residence of the accused persons along with the PCR van. SI Ramesh Chand Garg, PW 21 along with constable Raghbir Singh had also reached there. The three brought the victim Janak Kumari to LNJP Hospital at 8.10 a.m.
Janak Kumari was attended to by Dr. C.M. Khanijau, PW9.
On way from the residence of accused persons to the hospital,
Janak Kumari made a dying declaration to ASI Shiv Charan, PW
5. This is her first dying declaration. Another dying declaration was made by Janak Kumari to Dr. C.M. Khanijau, PW9 which was recorded by him as Exhibit PW 9/A. SI Ramesh Chand recorded a statement of Janak Kumari between 9 and 10 a.m.
This is the third dying declaration, Exhibit PW 21/A. At the request of SI Ramesh Chand, Ajit Shrivastava, Sub-Divisional 19 S. C. No.109/2016 Dt.21-12-2021.
Magistrate, PW 16 reached the hospital and recorded the
statement of Janak Kumari between 1.30 and 1.45 p.m. This statement, Exhibit PW 16/A is the fourth dying declaration. Kishan
Lal, PW 3, the brother of the deceased reached the hospital at about 5.30 p.m. and to him Janak Kumari made a statement which is the fifth dying declaration.”
27.In the 5 dying declarations, the first one was the oral declaration to one Shiv Charan, ASI. This was not believed as he failed to produce the book maintained in the Police Control Room van (PCR van), called ‘roznamcha’, in which the ASI was supposed to note the alleged oral declaration. The second one was the oral declaration to Dr. C.N.Khanijau.
He noted the history of the case as “with the alleged history of being burnt by husband, mother-in-law, and sister-in-law after pouring kerosene oil, after attempting to strangulate her with rope”. It was noticed that the doctor did not talk to the declarant, but the above history of the case was written at informed by ASI. The third one was the statement recorded by Ramesh
Chand SI. This was not believed on the ground that the prosecution failed to prove the certification of the duty doctor about the condition of the declarant. She was found to have suffered extensive burns and her condition deteriorated till she died and hence, she could not make a declaration. It was found that her hands were burnt and the skin of the hands had been peeled off and hence, she could not have signed the statement. The fourth one was the declaration recorded by Ajit
Shrivastava, Sub-Divisional Magistrate (SDM). This was not believed for want of certificate from duty doctor about the condition of the declarant, apart from other suspicious circumstances in the evidence of the witness.
The fifth one is the oral statement made to the brother of the deceased,
Kishanlal. This declaration was again not believed with the omission in his 20 S. C. No.109/2016 Dt.21-12-2021.
statement to police that he never informed the police, what was told to him by the deceased.
28.In the case on hand, there are no such circumstances to discard the declaration. As said earlier the declarant could survive for 7 days, before she succumbed to injuries. The evidence of P.W.22, the doctor, who conducted postmortem examination deposed and recorded in Ex.P14 that the deceased was found with infected burns all over her body, except top and back 1/3rd of the head, right armpit region and adjoining chest region, plantar aspect of both feet, tips of fingers of both hands. P.W.21, the
Judicial Magistrate under Ex.P12 is proved to have taken the certificate of
duty doctor about the condition of the declarant, apart from his assessment of the condition of the declarant. Hence, in these circumstances, the judgment of Apex Court is of no assistance to the defense.
29.In Sushilkumar Sharma case (cited above), the petitioner sought to declare section 498-A IPC to be unconstitutional and factually, it is irrelevant for this case.
30.In Poonam Bai case (cited above), the dying declarantion was not believed for following reasons, which are absent in the case on hand. The relevant para of judgment reads as follows:
“11. The Naib Tehsildar-cum-Executive Magistrate (P.W.1) has deposed that the police had sent a requisition to the Tehsildar (as per Exh. P-3), who in turn requested P.W.1 to go to the spot and record the statement of the injured. P.W.1 has also deposed that he received such requisition at 12.15 p.m. on the date of the incident, and immediately thereafter, he went to the hospital and recorded the statement of the victim (Exh.P1). He has also deposed that he drew the panchnama regarding the recording of the dying declaration in the presence of three persons. It is to be 21 S. C. No.109/2016 Dt.21-12-2021.
noted that the dying declaration (Exh.P2) as produced before the
Trial Court is only a photocopy, which is not admissible in evidence. The original copy of the dying declaration has not been produced before the Trial Court. Also, though it has been stated by the Naib Tehsildar-cum-Executive Magistrate (P.W.1) that he had taken the signature of three witnesses, the photocopy of the dying declaration does not contain the signature of any witness.”
From the above extract, it is clear that the dying declaration was not relied on as it was found that the original document was not filed and it was further found that though Executive Magistrate, who recorded the declaration deposed about taking the signatures of three witnesses, the photocopy of the document does not contain the signatures of the witnesses. Hence, this authority is of no help to the defense.
31.In Sampath Babso Kale case (cited above), the accusation was under section 302 IPC and 498-A IPC. It was brought into evidence that the deceased was loving accused therein very much and she was enjoying more comforts at her husband’s house, than her parents’ house, which was a hut in a village. It was further noted that the deceased therein suffered 98% burns and at 3.30 a.m., she was given a painkiller injection, and immediately the statement was recorded. It was observed therein that “She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out.” In the case on hand, there are no such circumstances. There is nothing to say that the deceased was given sedatives just before the recording of the dying declaration. There are no such circumstances to say that the couple has so much love and affection between them. There are no other infirmities in the 22 S. C. No.109/2016 Dt.21-12-2021.
dying declaration of the deceased. Hence, this authority is of no help to the accused.
32.In Jayamma case (cited above), in retaliation of earlier assault on them, the accused party went into the house of the deceased and doused her with kerosene, and set her on fire. In the trial, the son and daughter-in- law, and the other alleged eyewitnesses did not support the prosecution.
About the dying declaration, it was found that the deceased was given highly sedative painkillers. It was noted that the Investigation Officer did not take the endorsement from the doctor about the condition of the deceased. The evidence of the Investigation Officer was found contradictory with the evidence of the doctor, about the injuries on the fingers of the deceased. In those circumstances, the solitary evidence in the form of a dying declaration was not accepted. The judgment in the said case is irrelevant for our purposes.
33.In Angoori Devi case (cited above), it was found that the sister of the deceased was married to the brother of accused in the same family and it was found on the evidence that there was no harassment for dowry against the sister of the deceased. It was held that had the deceased been maltreated with a demand for dowry, her sister in the same family would have suffered the same treatment and thus disbelieved the allegations of dowry harassment.
34.The evidence is consistent throughout and it is proved that death occurred within three years from the time of marriage and soon before the marriage, there was harassment for dowry and hence, this Court has no hesitation to conclude that it is ‘dowry death’ as defined in Sec.304-B(1)
IPC. Once the prosecution succeeds to establish the ‘dowry death’, the 23 S. C. No.109/2016 Dt.21-12-2021.
presumption under section 113-B of Indian Evidence Act operates against the accused and it is for the accused to rebut the presumption. The defence pleaded that it is case of accident. Except the fact that the family uses a firewood stove, nothing is placed before the Court to say that it is an accident. In the dying declaration, the deceased stated that her father- in-law put off the flames and rescued her. In rebuttal, the defence could have examined him to disprove the fact. The fact that P.W.2 pledged the gold ornaments of the deceased cannot be the reason for the suicide, since the defence put up the theory of accident. The defence theory cannot be accepted for one more reason that if the deceased wanted to implicate the family in a false case, there is no reason for her to exclude the father- in-law. Thus, for all the reasons, it is held that the prosecution proved the charges beyond reasonable doubt.
In the result, accused 1 & 2 are found guilty for the offences under section 304-B and 498-A IPC and they are convicted under section 235(2)
Code of Criminal Procedure.
Dictated to Stenographer, transcribed by him, corrected and
pronounced by me in Open Court on this the 21st day of December, 2021.
II Additional District & Sessions Judge,
Srikakulam.
(FAC) IV Additional District & Sessions Judge,
Srikakulam.
Having found the accused 1 and 2 guilty for the offences under sections 304-B of Indian Penal Code and 498-A of Indian Penal Code, they are questioned about the quantum of sentence.
A1 submitted that if he sent to jail, there are nobody to take care of her daughter and she would become an orphan.
24 S. C. No.109/2016 Dt.21-12-2021.
A2 also submitted that if both of them are sent to jail, the child would become orphan and there are no others to take care of in the house.
Having heard A1 and A2 about the quantum of sentence, A1 and A2 are sentenced to suffer Rigorous Imprisonment for seven (7) years and they shall pay a fine of Rs.1000/- (Rupees one thousand) each and in default, they shall suffer simple imprisonment for six months.
In view of the judgment in Smt. Shanti And Anr vs State Of
Haryana 8, though the accused are found guilty for offences under sections 304-B Indian Penal Code and 498-A Indian Penal Code, the sentence is given for major offence under section 304-B Indian Penal Code and no separate sentence be awarded for the offence under section 498-A Indian
Penal Code.
A1 and A2 are entitled to set off the remand period.
The accused are informed about their right of appeal and of free legal aid.
Unmarked property, if any, shall be destroyed after lapse of appeal time.
Furnish free copy of Judgment.
II Additional District & Sessions Judge,
Srikakulam.
(FAC) IV Additional District & Sessions Judge,
Srikakulam.
Appendix of evidence.
Witnesses examined
For Prosecution:- For Defence: NONE.
P.W1Smt. B.Narayanamma. P.W2Sri B.Kruminaidu.
8. AIR 1991 SC 1226.
25 S. C. No.109/2016 Dt.21-12-2021.
P.W3Smt. N.Laxmi P.W4Sri Gorle Rajagopal P.W5Sri Gorle Gowri Naidu P.W6Smt. Kandhi Chinnatalli. P.W7Smt. Mullu Govindamma. P.W8Sri Pilla Vasudevarao. P.W9Sri Konishi Pentamnaidu. P.W10Sri Reddi Appalaswamy. P.W11Smt. Batchala Hymavathi. P.W12Smt. Kuppili Satyavathi. P.W13Sri Uyaka Ramarao. P.W14Sri Karri Venkataramana P.W15Sri Chinta Umamaheswararao. P.W16Sri Danapathi Balakrishna P.W17Sri Pilla Anjaneyulu P.W18Sri Kimidi Narasimhanaidu P.W19Sri M.V.Ramana, Tahsildar, Veeraghattam Mandal. P.W20Sri Danapathi Satyamnaidu. P.W21Sri Y.Srinivasarao, Spl. Judicial Magistrate of I Class, Proh. & Excise Court, Srikakulam. P.W22Sri Dr.P.Venkataramanarao, Assistant Professor, Andhra Medical College, KGH, Visakhapatnam. P.W23Sri P.Ramarao, Assistant Sub Inspector of Police, Veeraghattam Police Station. P.W24Sri Ch.Adinarayana, Sub Divisional Police Officer, Palakonda. P.W25Sri R.Srinivasarao, Sub Inspector of Police, Veeraghattam Police Station.
Exhibits Marked
For Prosecution:-
Ex.P1Report of P.W1. Ex.P2Statement of P.W8/Smt. Pilla Vanajakshi recorded under section 161 of Code of Criminal Procedure. Ex.P3Statement of P.W.9/Sri Konishi Pentamnaidu recorded under section 161 of Code of Criminal Procedure. Ex.P4Statement of P.W.10/Sri Reddi Appalaswamy recorded under section 164 of Code of Criminal Procedure. Ex.P5Statement of P.W.15/Sri Chinta Umamaheswararao recorded under section 161 of Code of Criminal Procedure. Ex.P6Statement of P.W.16/Sri Danapatti Balakrishna recorded under section 164 of Code of Criminal Procedure. Ex.P7Signature of P.W.17/Sri Pilla Anjaneyulu on scene observation report. Ex.P8Signature of P.W.18/Sri Kimidi Narasimhanaidu on Inquest report. Ex.P9Inquest Report. Ex.P10Signature of P.W.20/Sri Danapathi Satyamnaidu on scene observation report. Ex.P11Requisition from the hospital. Ex.P12Statement of declarant. Ex.P13Requisition by Mandal Executive Magistrate, Veeraghattam, 26 S. C. No.109/2016 Dt.21-12-2021.
dated 03.04.2015.
Ex.P14Postmortem report dated 03.04.2015 Ex.P15Altered First Information Report. Ex.P16FSL Report. Ex.P17Medical Intimation. Ex.P18Statement of D.Sumalatha. Ex.P19First Information Report in Crime No.22/2015 Ex.P20Scene observation report. Ex.P21Rough Sketch. Ex.P22Photos of injured person (4 in number) Ex.P23Xerox copy of Form 60 of the Judicial Magistrate of I Class, Palakonda.
FOR DEFENCE:-
Ex.D1Part of 161 Cr.P.C. statement of PW1.
II Additional District & Sessions Judge,
Srikakulam.
(FAC) IV Additional District & Sessions Judge,
Srikakulam.
27 S. C. No.109/2016 Dt.21-12-2021.
IN THE COURT OF SESSIONS DIVISON, SESSIONS AT SRIKAKULAM.
IN THE COURT OF IV ADDITIONAL DISTRICT & SESSIONS JUDGE FOR
THE TRIAL OF OFFENCES UNDER SECTIONS SC/STS (POA) ACT,
AT SRIKAKULAM.
Present:- Sri Tirumala Venkateswarlu, II Additional District Judge, Srikakulam. (FAC) IV Addl. District Judge, Srikakulam.
TUESDAY, THIS THE 21 st DAY of DECEMBER, 2021
SESSIONS CASE No. 109/2016
(PRC No.9/2015 on the file of Judicial Magistrate of 1st Class, Palakonda in Crime No.22/2015 of Veeraghattam Police Station)
Name of the Complainant:The State represented by Sub Divisional Police Officer, Palakonda.
Name of the Accused:1. Sri Dhanaparthi Govindarao @ Govinda, son of Ganesh, aged 24 years, Kapu caste, resident of BurugaVillage,Veeraghatam Mandal.
2. Smt. Dhanapathi Laxmi @ Jaggamma, wife of Ganesh, aged 48 years, Kapu by caste, rest do.
Offences:Under sections 304-B, 498-A read with 34 of Indian Penal Code.
Date of offence:Prior to 27.03.2015
Date of report or complaint:27.03.2015
Date of appearance of accused:28.11.2016
Date of commencement of trial:11.09.2017.
Date of close of trial:02.12.2021.`
Date of sentence or order:21.12.2021.
Explanation for delay: -This case was taken on file on 24.10.2016 and summons was issued to Accused. Accused appeared in this case on 28.11.2016. After hearing both sides, charges Under Sections 304-B, 498-A IPC were framed on 17.05.2017, the accused pleaded not guilty for the said charges. On 11.09.2017 P.W.1 and P.W.2, on 26.10.2017 P.W.3 was examined, on 08.01.2018, P.W.4 and P.W.5 were examined, on 19.02.2018, P.W.6 and P.W.7 were examined, on 13.06.2018, P.W.8 and P.W.9 were examined. On 30.08.2018, P.W.10 and P.W.11 were examined. On 20.09.2018, P.W.12 and P.W.13 were 28 S. C. No.109/2016 Dt.21-12-2021.
examined. On 23.10.2018, P.W.14 was examined. On 15.11.2018, P.W.15 was examined. On 29.11.2018, P.W.16 was examined, On 20.12.2018, P.W.17 was examined, On 17.01.2019, P.W.18 was examined, On 11.03.2019, P.W.19 was examined, on 15.11.2019, P.W20 was examined. On 23.12.2019, P.W.21 was examined, on 17.02.2020, P.W22 and 23 were examined, on 11.01.2021, P.W.24 and P.W.25 were examined. Prosecution evidence was closed on 26.11.2021. On 02.12.2021 accused were examined under Section 313, Cr.P.C., they denied the incriminating circumstances deposed by the prosecution witnesses and stated no defence witnesses. On 10-12-2021 heard both sides and Judgment
pronounced on 21.12.2021.
II Additional District & Sessions Judge,
Srikakulam.
(FAC) IV Additional District & Sessions Judge,
Srikakulam.