IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF SCs & STs (POA) ACT
CUM ADDL. DISTRICT & SESSIONS COURT, VIZIANAGARAM.
PRESENT: Smt Y. Hemalatha,
Special Judge for trial of Cases under SCs & STs (POA) Act
-cum-Addl.District & Sessions Judge, Vizianagaram. Tuesday, this the 2nd day of May, 2017.
Sessions Case No.38/2016
State represented by the Sub
01.Name of the complainant:Divisional Police Officer, Vizianagaram. 02Name of accused:1. Podupureddi Maha Laxmi, W/o Trinadha Rao, 60 Years, Telaga by Caste, IppiliVeedhi, Vizianagaram.
2. Podupureddi Ganesh, S/o Trinadha Rao, 36 Years, Telaga by Caste, Ippili Veedhi, Vizianagaram. 03Date of offence:16.09.2014 04Place of offence:Ippiliveedhi, Vizianagaram. 16.09.2014 05Date of complaint: 06Date of apprehension of 05.05.2016 accused in this court 07Whether the accused is in jailOn Bail or on bail: 08Date of commencement of06.12.2016 trial: 09Date of close of trial:27.04.2017 10Dateofsentenceor02.05.2017 Judgment: Explanation for delay in Sessions court: After receipt of record from the Additional Judicial Magistrate of First Class, Vizianagaram in P.R.C.No.33/2015 the same was made over to this court for disposal according to law on 06.04.2016 and after appearance of accused before this court, charges under Sections 498-A and 304-B of I.P.C., and Sections 3 and 4 of Dowry Prohibition Act were framed against the accused on 01.08.2016, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. Trial was commenced on 06.12.2016. During trial P.Ws.1 to 19 examined and Exs.P.1 and P.29 and M.Os.1 and 2 are marked and the accused were examined under Section 313 Cr.P.C., on 08.02.2017 and they totally denied the offence and the trial was closed on 27.04.2017. Heard arguments. For Judgment posted to 02.05.2017. On 02.05.2017 Judgment pronounced. (vide separate Judgment). In the result, the Accused A.1 and A.2 are found not guilty for the offence punishable under Sections 498-A and 304-B of I.P.C., and Sections 3 and 4 of Dowry Prohibition Act and they are acquitted under section 235(1) of Cr.P.C., for the said offences. M.Os.1 and 2, shall be destroyed after expiry of appeal time. The accused are ordered to execute self bonds for Rs.20,000/- and ordered to appear before any appellate Court, as and when they received any notices or summons from any appellate court under the provision of Section 437-A of Cr.P.C.,
Sd/- Y.Hemalatha
Special Judge for trial of Cases under S.Cs &S.Ts
(POA) Act –cum-Addl. District & Sessions Judge, Vizianagaram.
IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER S.Cs &
S.Ts (POA) ACT –CUM- ADDL.DITRICT & SESSIONS JUDGE, VIZIANAGARAM.
PRESENT: Smt Y. Hemalatha,
Special Judge for trial of Cases under
S.Cs & S.Ts (POA) Act-cum-Addl.District & Sessions Judge, Vizianagaram.
Tuesday, this the 2nd day of May, 2017.
Sessions Case No.38/2016
* * *
1. Name of the Complainant :State represented by the Sub Divisional Police Officer, Vizianagaram.
2. Name of the accused :
1. Podupureddi Maha Laxmi, W/o Trinadha Rao, 60 Years, Telaga by Caste, Ippili Veedhi, Vizianagaram.
2. Podupureddi Ganesh, S/o Trinadha Rao, 36 Years, Telaga by Caste, Ippili Veedhi, Vizianagaram. .
3. Charges : Sections 498-A and 304-B of I.P.C., and Sections 3 and 4 of Dowry Prohibition Act.
4. Plea of accused: Accused pleaded not guilty
5. Finding of the Judge: Accused are found not guilty.
6. Sentence or order : In the result, the Accused A.1 and A.2 are found not guilty for the offence punishable under Sections 498-A and 304-B of I.P.C., and Sections 3 and 4 of Dowry Prohibition Act and they are acquitted under section 235(1) of Cr.P.C., for the said offences.
M.Os.1 and 2, shall be destroyed after expiry of appeal time.
The accused are ordered to execute self bonds for Rs.20,000/- and ordered to appear
before any appellate Court, as and when they
received any notices or summons from any appellate court under the provision of Section 437-A of Cr.P.C., .
7. Prosecution conducted by: Additional Public Prosecutor, Vizianagaram.
8. Defence conducted by :Sri P. Rambabu, Advocate for accused.
This case was committed by the Additional Judicial Magistrate of I Class, Vizianagaram, in P.R.C.No.33/2015 and after hearing the learned Addl., Public Prosecutor on behalf of State and of Sri P. Rambabu, Advocate appearing for accused, the case having been stood over for consideration till this day, this Court delivered the following:
J U D G M E N T:
The state represented by the Sub Divisional Police Officer,
Vizianagaram, filed the charge sheet against the Accused, for the offences under 498-A and 304-B of I.P.C., and Sections 3 and 4 of Dowry Prohibition
Act in Crime No.226/2014 of II Town Police Station, Vizianagaram.
2.The brief averments of the charge sheet are as follows:-
On 16.09.2014, the A.S.I., II Town Police Station received statement of injured/deceased along with medical intimation from the
District Head Quarters Hospital, Vizianagaram. Basing on it, he registered the crime No.226/2014 under Sections 498 and 306 r/w 511 of I.P.C., and submitted F.I.R., to the concerned and later investigated into the matter. It was revealed through the complainant and the witnesses that the marriage of deceased was held at Simhachalam Temple with accused No.2 Ganesh on 04.12.2011 and at that time cash of Rs.2,00,000/- and 5 tolas of gold was given and the deceased led conjugal life with him for about one year and gave birth to a female child on 05.05.2013. But since then the in-laws harassed her and demanded additional dowry to meet financial demands and to construct a house and also they beat her and sent to her parents house twice. She was again sent to the matrimonial home by paying certain amounts and one day through phone the deceased revealed to her mother that her mother-in-law, sister-in-law and husband were subjecting her to cruelty and beating her saying that they will remove her and perform another marriage to A.2 to get dowry. As such, she was suspecting and later it was learnt that she committed suicide. According to the complainant who is the mother of deceased, the in-laws killed her daughter by litting fire.
Hence, requested for necessary action. Since no case was made out against sister-in-law/A.3, her name was deleted from the list of accused procedurally.
Basing on the report, the Investigating Officer altered section of law from 306 r/w 511 I.P.C., to 304-B of I.P.C., besides Sec.498-A of I.P.C., Inquest and postmortem were got conducted on the deceased, later accused were arrested and after completion of investigation charge sheet was filed by the Sub Divisional Police Officer, Vizianagaram.
3.After filing of the charge sheet, cognizance was taken by the
Learned Additional Judicial Magistrate of I Class, Vizianagaram for the offences under Sections 498-A and 304-B of I.P.C., and Sections 3 and 4 of
Dowry Prohibition Actagainst the accused and the Additional Judicial
Magistrate of I Class, Vizianagaram committed the case to the Sessions Court
in P.R.C.No.33/2015 and later it was made over to this Court for disposal in accordance with law.
4.After appearance of the accused they engaged advocate of their choice.
5.After appearance of the accused, and after hearing, charges under Sections 498-A and 304-B of I.P.C., and Sections 3 and 4 of Dowry
Prohibition Actwere framed against them, read over and explained to them in Telugu and they pleaded not guilty and claimed to be tried.
6. To prove the case of the prosecution, the prosecution examined
P.Ws.1 to 19 and marked Exs.P.1 to P.29 and M.Os.1 and 2.
7.After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., pertaining to the incriminating evidence against them and they denied the same and further stated that the case was foisted against them and in fact they lived happily. The accused did not choose to examine any defence witnesses on their behalf.
8.Heard arguments of both sides.
9.Now, the point for determination in this case is :
Whether the prosecution is able to prove the charges under Sections 498-A and 304-B of I.P.C., and Sections 3 and 4 of Dowry Prohibition Act against the accused beyond reasonable doubt?
10. P O I N T:
The accused in this case are charged with the offence under Sections 498-A and 304-B of I.P.C., No doubt, a presumption arises on proof of cruelty or harassment of the deceased in connection with any demand for dowry. Such proof is mandatory for invoking the presumption under Section 113-B of Indian Evidence Act. Prosecution is required to substantiate ingredients of Section 304-B and 498-A for availing the presumption. In the absence of such proof of ingredients of those sections a person cannot be convicted by taking refuse only of the presumption under
Section 113-B of Indian Evidence Act. Section 113-B reads as follows:- “When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.”
Hence, to draw a presumption under Section 113-B of Indian Evidence Act, a dowry death of a woman would be there.
11.Section 304-B of Indian Penal Code deals with the said dowry death, which reads as follows:- (1)Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death.
(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
In order to attract Section 304-B of I.P.C., to say that a death is a dowry death, there should be the death of a woman caused by any burn injury or burns and within seven years of the marriage and it should also be established that soon before her death she was subjected to cruelty by husband or any in-laws by demanding dowry.
12.According to Section 498-A of I.P.C., the explanation says what cruelty means. It is any willful conduct or harassment of a woman with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, whereby it likely drives the woman to commit suicide or to cause grave injury or danger to her life, limb or health, mental or physical.
13.As per the contents of the sections quoted above, it is at first to see whether there is death within seven years of marriage. It is an admitted fact that the marriage of deceased was performed with A.2 about 5 years back prior to the present crime. Hence, the death of deceased was happened within seven years of the marriage. It is an admitted fact that she received burn injuries and died. Hence, there are suspicious circumstances regarding her death, as annunciated under Section 304-B of I.P.C., Now it is to be seen whether she was subjected to cruelty or harassment from husband and in-laws in connection with demand for dowry, in order to say that it is a dowry death. At this juncture, the oral evidence of the mother, brother and sister of deceased and other witnesses is to be seen.
14.P.W.1 Mahadasu Rangamma is the mother of the deceased. She admitted her relationship with other listed witnesses. According to her, the marriage of deceased was performed with A.2 about 5 years ago, (she deposed in 2016) in a Choultry in Simhachalam. But, they did not present any dowry of any kind, except some gifts. After marriage, they led marital life in Vizianagaram. In fact, the sisters of A.2 are living opposite to their house. According to P.W.1, her daughter/deceased and A.2 led happy life after marriage and blessed with a daughter and their relationship was always cordial. Her daughter never complained to her against the accused regarding any ill- treatment. There was never any demand for any additional dowry, nor the deceased was subjected to any harassment in regard to the demand of
additional dowry. About 2 or 3 years back her daughter died and after
knowing it they reached Vizianagaram and she was informed that the dead- body was shifted to Government Hospital and they went there and she does not know the cause of her death. Though she admitted her signature on the police report, she stated no knowledge of contents in it and deposed that police never examined her.
15.P.W.2 Karanama Padma, who is the sister of the deceased deposed in similar terms as of P.W.1. She also stated that she does not know the cause of death of her sister and police never examined her.
16.P.W.3 Konkipudi Krishna Veni, who is another sister of the deceased deposed in similar terms as of P.Ws.1 and 2. Even P.W.4 named
Pulapaka Venkata Rao deposed that the deceased Madhavi is his niece, being the daughter of his eldest sister/P.W.1. Though he deposed that something paid as lanchanams at the time of marriage of deceased, he does not know the details. According to him deceased and A.1 lived happily after their marriage, without any disputes. The deceased never complained anything against the accused. He does not know the cause of her death.
Police did not examine him in this case. So also, in the evidence of P.W.5 named Bharathi, it is revealed that the deceased is her maternal uncle’s daughter and after marriage A.2 and deceased lived happily and blessed with a daughter and there was never any complaint by deceased against the accused. She does not know the cause of the death of the deceased, who died of burn injuries. Police did not examine her.
17.Before going into the other details of the evidence of P.Ws.1 to 5, who are related to the deceased, I perused the evidence of independent witnesses. P.W.6 Mutchu Hemalatha, deposed that she knows the deceased and accused Nos.1 and 2 and also the niece of A.2, who was living with them. Their houses are opposite to each other there and since 5 or 6 years, the family of accused were tenants in their house. The couple lived happily after their marriage and deceased never complained anything against the accused to her. There were never any quarrels between them. According to her knowledge, they have a female child. P.W.6 says she was not present when the incident took place. She does not know the cause of death of the deceased. She does not know why and how she died. She was not informed of anything by deceased before her death any time and police never examined her.
18.P.W.7 Routhu Padma stated that she knows the deceased and both accused and also one Sai Lakshmi, the niece of A.2. A.1 is her elder sister. A.2 is her sister’s son. The marriage of A.2 with deceased took place in 2011. She does not know whether any dowry was given at the time of marriage. After marriage they lived happily and blessed with one daughter.
They all used to reside together. She does not know the cause of death of the deceased. Police did not examine her.
19.P.W.10, Simhadri Narayana Rao, who is a Carpenter by profession deposed that he knew the accused and the deceased, who were tenants in his house in Vizianagaram. A.1, A.2 along with deceased and another girl used to reside together. According to him, they all lived happily and there was never any complaint by deceased regarding any ill-treatment in the hands of accused. They were blessed with a daughter. He does not know the cause of death of deceased, but she died due to burn injuries.
Police did not examine him.
20.A perusal of the evidence of P.Ws.1 to 5 and, 6, 7 and 11, it is clear that though the deceased died within seven years of the marriage in suspicious circumstances, they did not depose anything against the accused nor deposed about any ill-treatment or harassment meted out to deceased in the hands of accused Nos.1 and 2. P.W.1, who is the complainant to give report to police regarding the suspicious death of her daughter and suspecting accused Nos.1 and 2 as the cause for her death, herself turned hostile against prosecution version.
21.According to prosecution, a report was given by P.W.1 before police against accused, but P.W.1 denied any such report, except admitting her signature as Mahadasu Rangamma, found on the complaint, marked as
Ex.P.1. She stated no knowledge about the contents of Ex.P.1 complaint. A perusal of the report, it is found that P.W.1 reported about the marriage of deceased and A.2 and that Rs.2,00,000/- dowry and 5 tolas of gold and lanchanams were given by performing marriage in Simhachalam and for about one year they were lived happily and blessed with one daughter and thereafter, the accused Nos.1 and 2 harassed her daughter along with her sister-in-law Kameswari for additional dowry and for cash to purchase a house and to discharge their loans and also to deposit an amount of
Rs.25,000/- in the name of the newly born child and they beat her and sent to her house in about 2 to 3 times and she paid Rs.10,000/- and sent her to the in-laws house, but they again harassed her that the amount is not sufficient and that afterwards on the Sunday evening she telephoned to her daughter, whereby her daughter revealed all the three persons harassing her saying that they will kill and perform A.2’s marriage with another person for more dowry, whereby the complainant suspected A.1 and A.2 and one another person named Kameswari and to enquire into the matter about her daughter’s death. Though the version of the complainant is as revealed above in the complaint, she herself denied lodging such complaint. When perused her evidence also she did not support giving any complaint to police. She herself admitted that no dowry was given and after the marriage A.2 and her daughter led happy life and blessed with a daughter and there was never any complaint of ill-treatment and there was any demand of additional dowry. Coming to the evidence of P.Ws.2 to 5, also when perused their Section 161 Cr.P.C., statement, they deposed as if there was an ill-treatment and harassment of accused on the deceased for
additional dowry. A perusal of their evidence, they did not depose anything
as in Section 161 Cr.P.C., Statements and they denied their statements
before police.
22.In fact, at the request of Additional Public Prosecutor, they were declared as hostile witnesses and the Section 161 Cr.P.C., Statements of
P.Ws. 1 to 6 as Exs.P.2 to P.7 and that of P.W.10 as Ex.P.13. In fact, P.Ws.6, 7 and 10 were not at all cross examined by the accused as per their hostility.
Though P.Ws.1 to 5 were examined in cross by the Counsel for the accused, it is only regarding the jobs of A.1 and A.2 and that A.1 was having a daughter named Bhagya Lakshmi, who died and her daughter is residing with A.1 and
A.2.
23.The other witnesses deposed in this case are Inquest witnesses and the Doctor, who conducted postmortem and the photographer and the
Magistrate, who recorded the dying declaration and the two investigating
officers. P.W.12 is the Tahsildar, who conducted the inquest as per the requisition of police over the dead body of deceased Vijaya Madhavi at M.R.
Government Hospital, Vizianagaram in the presence of blood relatives and
Inquest punch witnesses and one of whom was P.W.7. According to P.W.12, during inquest enquiry blood relatives have given statements and the cause of death was observed as the deceased committed suicide by setting fire on herself and it was due to ill-treatment in the hands of mother-in-law, sister-in- law and father-in-law. He prepared the inquest report, which is Ex.P.15and it was signed by punch witnesses.
24.P.W.11 named Panasa Bhima Rao, one of the punch witnesses, deposed that he knows the deceased and both accused, but he does not know the cause of death of deceased. When he went to Government
Hospital after hearing the news, his signature was obtained by police, because at that time panchanama was conducted over the dead body and he signed at the instance of police without knowing the contents. His signature was marked as Ex.P.14. He denied in the cross by Addl. Public
Prosecutor as Hostile that he was present when conducting inquest and he knows the details, but deposed false to help the accused. It is to be noted that admittedly, the deceased died due to burn injuries and hence conducting a inquest cannot be ruled out. But the evidence of P.W.11 is not helpful to prosecution to say that due to ill-treatment in the hands of in-laws, the deceased committed suicide as deposed by P.W.12.
25.The next witness is Doctor, who conducted postmortem, who is examined as P.W.13 by name Dr. Subhadra. According to her after receiving requisition from S.H.O., II Town Police Station, Vizianagaram on 17.09.2014 at 4-05 p.m., she conducted postmortem examination, over the dead body of
Podupureddy Vijaya Madhavi along with Dr. Nagendra Babu, Civil Assistant
Surgeon and on noting the external injuries and on finding no internal injuries, she issued the postmortem certificate as under Ex.P.16 opining that the cause of death is due to hypolemic shock and 99% burns. She could not correctly say whether the deceased was “Madhavi” or “Madhuri” by name, but which may not change the case of prosecution.
26.According to the Investigation Officer examined as P.W.18 named as R. Rama Krishna Rao, who was the then A.S.I., II Town Police Station, he visited the scene of offence at Ippili Veedhi, Vizianagaram in the presence of
P.Ws.8 and 9 and also that he seized the plastic kerosene can and ash of burnt clothes under the cover of Ex.P.27 report. Hence, I perused the evidence of P.W.8 Kornana Thata Rao and P.W.9 Mutchu Sekhar. Both did not support the version of P.W.18 that they were called by the police to go to the house of accused, though they admitted their signatures marked in
Exs.P.9 and P.12 respectively in the Ex.P.27. They claimed that they signed at the instance of police on the written paper and they do not know the contents therein. As they turned hostile, the Addl. Public Prosecutor cross examined them with permission and both of them denied that police observed the scene of offence in their presence and seized material objects under the cover of observation report and they both signed knowing the contents and that they deposed false to help the accused.
27.Now, coming to the evidence of Investigating Officers P.W.17 by name T.Ch. Yuvaraj, was the Head Constable, at Out Post in Government
Hospital, Vizianagaram, by 16.09.2014. On that day at 10-10 a.m., he received medical intimation from the Casualty Doctor about the admission of woman with burns. He visited the casualty ward and identified the victim with the help of duty doctor and he recorded the statement of victim P.
Madhavi in detail and it was stated that she was ill-treated by her mother-in- law on the previous night because her mother-in-law wanted to perform marriage of her son with her grand-daughter. P.W.17 deposed that after recording the statement, he obtained her thumb mark and also he obtained certification of duty Doctor as to her consciousness. Thereafter, he forwarded the statement marked as Ex.P.25 and medical intimation marked as Ex.P.24 to II Town Police Station, Vizianagaram.
28.Then it was P.W.18 named R. Rama Krishna Rao, the then A.S.I., who investigated into the matter by registering the case. According to
P.W.18 after receiving Exs.P.24 and P.25 from P.W.17, he registered a case in
Cr.No.226/2014 under Sections 498-A, 306 r/w 511 of I.P.C., and forwarded the First Information Report to J.F.C.M., Vizianagaram, which is Ex.P.26. After 3-00 p.m., he visited the hospital and the victim was in unconscious state.
He examined P.Ws.6 and 7, who were present there and recorded their statements. Next he visited the scene of offence, which was the house of one
Simhadri Narayana, P.W.10.
29.According to P.W.18 the scene of offence was located at the
Bathroom of the house and he observed it in the presence of mediators and seized Plastic kerosene can and ash of burnt clothes under the cover of report Ex.P.27 and he also prepared Rough Sketch Ex.P.28 and got marked
M.Os.1 and 2. He also photographed the scene of offence through P.W.15.
He examined one Marupalli Ramesh, who is resident of nearby house and also examined P.W.10 and his wife Seetharam and recorded their statements.
On the next day morning at 10-00 a.m., P.W.1 went to the station and lodged written complaint which is Ex.P.1 stating that her daughter died. Since she died within seven years of marriage, he altered the section of law to Section 304-B and sent altered F.I.R., to the J.F.C.M. Court, which is Ex.P.29. As
P.Ws.6, 7 and 10 turned hostile, this witness deposed that they stated before him as in their Section 161 Cr.P.C., Statements marked as Exs.P.8, P.10 and
P.13 respectively.
30.At this juncture, a perusal of cross of P.W.18, he was suggested that without any written instructions he cannot register the case but he denied. P.W.18 deposed that he does not know what was the cause for the delay in Ex.P.25. According to him he dispatched the F.I.R., at 2-30 p.m., and the court is at a distance of 3 K.M., from his station. A perusal of the
First Information Report the date of occurrence of offence was 16.09.2014 at 9-30 a.m., whereas, the information received in the station was at 14-30 hours, at which time General Diary entry was also made, basing on oral information. It was not mentioned in column No.8 that there was any reason for delay but in fact stated as “no delay”.
31. In the cross of P.W.18 he deposed that he did not find both the accused at the scene of offence when he visited and he also did not find anybody in the house at that time. The main door was bolted. He identified the house on local enquiry and observed the scene. He denied that there was no observation of the scene by going there and that M.Os.1 and 2 were not seized there and he created them and that he investigated the case in violation of mandatory provisions.
32.Coming to the evidence of the 2nd Investigating Officer, P.W.19, who is by name S. Srinivas, the Sub Divisional Police Officer, Vizianagaram, he deposed that he received information from P.W.18 regarding registration of First Information Report under Section 304-B of I.P.C., due to death of deceased within 7 years of marriage. He collected altered First Information
Report, went to Government Hospital, secured presence of P.Ws.1, 3 to 5 and
L.Ws.2 and 4 and recorded their statements. On 19.10.2014 he visited the scene of offence and verified rough sketch prepared by P.W.18 and examined
P.Ws.6, 7, 10 and L.Ws.10 and 12 and recorded their statements. On 20.10.2014 he received postmortem certificate of deceased and collected dying declaration recorded by P.W.16 from the Court. On 27.10.2014 he arrested both the accused and sent them to remand and after completion of investigation, he laid charge sheet. Since P.Ws.1 to 6, 7 and 10 denied their statements, P.W.19 was questioned, but he deposed that
P.Ws.1 to 6 stated before him as in Exs.P.2 to P.7 and P.W.7 stated as in
Ex.P.9 and P.W.10 stated as in Ex.P.13. In the cross of P.W.19, the defence counsel suggested that ASI was not competent to conduct investigation and to alter First Information Report, but he denied the same and he also denied they foisted a false case against the accused by conducting table investigation.
33.The other witness deposed in this case was P.W.15 by name Ch.
Satyanarayana, Clues Team Photographer in police Department and according to him on 16.09.2014 on the request of S.I. of Police, II Town Police
Station, Vizianagaram he went to Headquarters Hospital mortuary and took photographs of dead body and the scene of offence. He got marked Exs.P.20 to P.22 photographs. Since the fact remains that the deceased died of burn injuries in the house itself, the evidence of P.W.15 is to be considered that he took photographs of the dead-body. A perusal of the evidence of all the witnesses, it is showing that the deceased died of burn injuries by committing suicide, but none of the material witnesses deposed that there was harassment on the deceased regarding additional dowry and that accused have harassed her mentally by their conduct.
34.The Additional Public Prosecutor has argued before the Court that though the witnesses turned hostile against prosecution, there is important evidence which is the Dying Declaration statement given by the deceased to the Magistrate, who is examined as P.W.16. Before going to the evidence of
P.W.16, I have gone through the evidence of P.W.14, who is the Doctor P.V.K.S.
Sharma, the Civil Assistant Surgeon.
According to him, he gave medico legal intimation to the out-post police about the admission of a woman with burns. While he was in duty, out-post
A.S.I., came and recorded the statement of patient in his presence and he endorsed on it that the patient was coherent and conscious. He made request to the Judicial Magistrate for recording Dying Declaration. While he was in duty, one Smt N. Sri Lakshmi, Judicial Magistrate came and recorded the Dying Declaration of the patient. He certified that the patient was conscious and coherent while recording her statement. Exs.P.18 and P.19 are his endorsements, which bear his signatures. According to him patient died while undergoing treatment at 11-45 P.M., on the same day and the same was intimated to out-post Police. After admission he gave first aid to the patient and she was admitted with 90% burns.
35.In the cross P.W.14 revealed that he did not give any sedation to the patient as he gave intimation for recording her statement. He had given only pain killers and I.V., Fluids to the patient. He denied that their hospital has no proper facilities for treatment of burns and said that there are Air-
Condition Rooms also. One Dr. Venu Gopal, Surgical Specialist, was attended the entire treatment after first aid given by him, but he does not know what was the treatment given. He denied the suggestion that a patient with more than 90% burns is not capable of giving statement in conscious state.
36.Now, coming to the evidence of P.W.16, Sri N. Srilakshmi, J.F.C.M.,
Vizianagaram she deposed that on receiving requisition at 11-50 a.m., on 16.09.2014 she went to record the Dying Declaration of the victim Vijaya
Madhavi at District Headquarters Hospital, Vizianagaram, She reached there at 12-10 p.m., and identified the patient with the help of duty doctor and she ascertained her state of mind by asking certain questions and after satisfying with the answers and when doctor certified about her state of mind she recorded the Dying Declaration. According to her the patient revealed that her marriage took place about 3 years ago and her husband got a niece and her mother-in-law wanted to perform the niece marriage with A.2, but
A.2 was not in favour of it. Hence, he married her and three months after marriage her mother-in-law started harassing her that she did not bring certain things and used to comment her that she trapped her husband.
Afterwards disputes increased and she has two years old female child and as such not able to attend household duties for which her mother-in-law used to taunt her and instigated her husband against her to beat her. As per the increase in the disputes she attempted suicide in between 7-00 to 8-00 a.m., by set fire to herself by pouring kerosene and her mother-in-law went away by closing the doors. She stated that her husband is a good man, but her mother-in-law is not a good lady and previously also she leaked gas two times, when she was not doing cooking.
37.After recording this statement which became the last one and
Dying Declaration, the Magistrate obtained her right thumb impression on the statement. She took all care when recording the Dying Declaration, marked as Ex.P.23. A perusal of the cross of P.W.16 except general questions nothing was suggested. She stated that she identified the patient with the help of duty doctor, but not through moles or relatives. She admitted that she did not enquire the knowledge of patient regarding English language since patient answered in Telugu. According to her she had put one question regarding incident and she continued to write her answer as narrated by her about entire incident.
38.Since P.W.16 deposed that she recorded the last statement of victim just before her death, which amounts to a Dying Declaration, the
Additional Public Prosecutor argued that the court can rely upon the Dying
Declaration solely as basis to prove the guilt of the accused. No doubt, it is true that the Dying Declaration will be a strong piece of evidence to convict the accused without any corroboration, but utmost caution should be taken while dealing with the Dying Declaration, because there will be every possibility of tutoring the person, who gives the Dying Declaration for any self cause. In this regard, both sides have relied on certain decisions.
39.The prosecution relied on Laxman Vs. State of Maharashtra delivered by Apex Court on 27.02.2002 in Crl. Appeal No.608/2001.
The Apex Court while affirming the Law laid down by themselves in Koli
Chunilal Savji & another Vs. State of Gujarat 1999(9) SCC 562
observed that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind. The Court observed that by simple reason that there is no certification of the Doctor as to the fitness of the mind of the declarant, the
Dying Declaration shall not be rejected. Their Lordship also observed in the referred decision that the Magistrate being a dis-interested witness and is responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.
40.In this regard, a perusal of the dying declaration under Ex.P.23 recorded by P.W.16, it is found that there are doctor certifications in the beginning of recorded statement and at the end. Those certifications were marked as Exs.P.18 and P.19 through the Doctor/P.W.14 and admittedly the
Dying Declaration was recorded by the Judicial Magistrate. Hence, the deceased was found in a fit state of mind to give the statement. Hence, this decision relied on by the prosecution can be accepted and the grounds therein are fulfilling in the present case.
41.The 2nd decision relied on by the prosecution is Crl. Appeal
Nos.865-866/2013 before the Apex Court in State of Maharashtra Vs.
Nisar Ramzan Sayyed. In fact, there are three Dying Declarations and three oral Dying Declarations in the reported decision. It was observed that there was no eye witness of the incident and the prosecution has been totally depending upon the dying declarations of the deceased. Their Lordships while quoting the Apex Court decision in Satish
Ambanna Bansode Vs. State of Maharashtra (2009) 11 SCC 217, reproduced the principles enunciated governing the dying declaration saying that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration and if the court satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration and the court has to scrutinize the dying declaration carefully and must ensure that it is not the result of tutoring, prompting or imagination and where a dying declaration is suspicious, it should not be acted upon without corroborative evidence, and a dying declaration which suffers from infirmity cannot form the basis of conviction. It is observed that even though it does not contain details as to the occurrence, and even though it is a brief statement, it cannot be discarded. Their Lordships further observed that when the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
42.From the above principles, enunciated in Satish Ambanna
Bansode Vs. State of Maharashtra case the Apex Court in the Criminal
Appeal before them observed that once dying declarations are duly proved and once it is admitted that the deceased was in the custody of the accused person, it is for the accused to show the facts were otherwise. The facts that are covered in the criminal appeal before the Apex Court are found consistent in the dying declarations made by the deceased about the demand of dowry and the modus operandi of the offence, which resulted in to the death of the deceased and observed that it was evident in the said facts of the case and circumstances that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established.
43.Coming to the facts of the present case it is to be noted that
P.W.14, the Civil Assistant Surgeon in Government Head Quarters Hospital,
Vizianagaram, clearly deposed that he issued requisition to the Magistrate for recording Dying
Declaration and when he was in duty, the dying declaration was recorded by the Magistrate and he endorsed about the consciousness and coherency of the patient while recording statement, though she was admitted with about 90% burns. While so, according to P.W.16, at 12-10 p.m., she reached
Hospital and identified the patient with the help of duty Doctor in casualty ward. She ascertained the state of mind of patient. She asked some simple questions and after satisfying with the answers, she proceeded to record the statement, after obtaining the certification of duty doctor about her state of mind. Since there is no need of any special form of recording the dying declaration, the procedure adopted by P.W.16 is found sufficient while recording the dying declaration. Before going into the truthfulness and trust- worthy-ness of the dying declaration, it is to be seen about the contentions of accused and the decisions relied upon by the Counsel.
44.The defence counsel relied upon AIR 2016 Supreme Court 287 between State of Maharashtra V. Hemant Kawadu Chauriwal etc., In that case it was a murder case. Accused/husband was alleged to have been committed murder of his wife. A Dying Declaration was recorded by Naib-
Tahsildar after he was informed on a Memo by police authorities. However, police official who delivered the Memo was never produced or examined
before Court. There was no explanation as to why Dying Declaration reached
police station late about one full day and the Dying Declaration found not reliable. Hence,the facts are not suitable to the present case as such I am not going to rely on this decision.
45.One more decision relied upon by the counsel for the accused is 1998 3 Supreme 179 between State of Punjab Vs. Gian Kaur &
Another. It is regarding the evidence of a Doctor, who failed to satisfactorily explain the appearance of a thumb mark on the dying declaration of deceased when she received 100% burns and when the statement of doctor, who performed postmortem revealed that both her thumbs were burnt. Coming to the present case on hand there was no cross examination done either on P.W.14 or P.W.16 regarding the right thumb impression of the deceased taken on the dying declaration. It is fact that she was admitted with 90% burns, but there is no suggestion that her two hands and fingers were completely burnt, so that she would not have put her right thumb impression. A perusal of the dying declaration, the right thumb impression of the deceased was found taken, which is not so clear and illegible in the ridges and lines. Hence, this decision cannot support the defence.
46.The other decision relied on by the counsel for the accused is 2016 4 Crimes (SC) 347 between State of Gujarat Vs. Jayrajbhai
Punjabhai Varu. When dealing with Section 32(1) of Indian Evidence Act, their Lordships observed its evidentiary value stating that Courts below have to be extremely careful when they deal with a dying declaration, as maker thereof is not available for cross examination which poses a great difficulty to accused and that a mechanical approach in relying upon a dying declaration just because it is there, is extremely dangerous. Court has to examine it scrupulously with a microscopic eye to find out whether dying declaration is voluntary, truthful, made in a conscious state of mind and without influence. Their Lordships observed that court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful and once it is convinced, it may act upon it and can make it a basis for conviction without corroboration also. Their Lordships also observed that since burden of proof in criminal law is beyond reasonable doubt, the prosecution has to prove the guilt beyond all reasonable doubts. So also, if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other towards his innocence, a view which is favourable to the accused should be adopted.
47. Since the material witnesses in the present case turned hostile, there is no supporting evidence except the dying declaration. The various principles enunciated in this regard by the Apex Court and the various decisions relied upon by both sides, the accepted version is that the dying declaration can be the sole basis to convict the accused, in case it is true, trust-worthy and can rely upon. But, the aspect here to be considered is what was stated by the declarent in the dying declaration, whether it is consistent, whether the allegations made by her amounts to any cruelty or harassment by accused and which leads to her taking such step to end her life.
48.I reproduce what were the contents in dying declaration.
According to P.W.16, the deceased stated that her marriage took place about three years back and her husband got a niece and her mother-in-law wants to perform her marriage with the husband of the deceased, but he was not in favour of it. Hence, he married the deceased and that three months after the marriage, her mother-in-law started harassing her that she did not bring certain things and used to comment her that she trapped her husband whereby disputes increased six months prior to the incident and as she was having two years old female child she was not able to attend household duties, for which her mother-in-law used to taunt her and instigated her husband against her to beat her. As per the increase in the disputes, she attempted to commit suicide between 7-00 to 8-00 a.m., by setting fire herself by pouring kerosene and her mother-in-law went away by closing the doors. She also stated that her husband was a good man, but her mother- in-law is not a good lady. Earlier also she leaked gas two times, when the deceased was not doing cooking. A perusal of the Dying Declaration marked as Ex.P.23 the contents were similar as was deposed by P.W.16.
49.At this juncture, it is to be noted that the accused was charged with the offence of Sections 498-A and 304-B of I.P.C., It is a fact that none of the witnesses of prosecution deposed supporting the case of prosecution about the dowry harassment and showing cruelty against the deceased by both the accused. In this regard, the Counsel for accused relied on 2017 1
SCC 101 between Baijnath & Others Vs. State of Madhya Pradesh.
The referred decision is regarding Sections 304-B and 498-A of I.P.C., It is observed by their Lordships that cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry is a common constituent of both the offences. It was also observed that a presumption under Section 113-B of Indian Evidence Act arises on proof of cruelty or harassment of the deceased for or in connection with any demand for dowry.
In the absence of such proof the accused cannot be convicted.
50.According to Section 304-B, if a death of a woman occurred within seven years of marriage in suspicious circumstances, and if it is shown that soon before her death she was subjected to cruelty or harassment by husband or relatives on demand of any dowry, then it will be called as dowry death, which is liable for punishment. Here the word cruelty mentioned in the section is the same meaning in the explanation under Section 498-A of
I.P.C., which says that cruelty means any willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health etc., or any harassment of a woman where it was with a view to coerce woman or her relatives to meet any unlawful demand of dowry like property. So, the cruelty or harassment is the common constituent of both the offences under Sections 304-B and 498-A of I.P.C.,
Whereas in Section 304-B of I.P.C., death of the woman within seven years of marriage in suspicious circumstances should be there. So, in these type of offences, the burden is on the prosecution to substantiate the ingredients of two offences by direct and convincing evidence to avail the presumption engrafted under Section 113-B of Indian Evidence Act. Any way the accused must have been subjected the woman to cruelty in connection with demand for dowry soon before her death.
51.Here in the present case on hand, according to the version of the deceased in the dying declaration, it is given only against A.1, who is her mother-in-law. She did not say anything against A.2, her husband and even given a good comment against him. According to the statement of deceased, her mother-in-law used to harass her saying that she had not brought this thing and that thing. The deceased did not say about any dowry specifically in cash or in kind. Besides that she alleged that her husband is having a niece and A.1 wanted to give her in marriage to A.2. But, A.2 did not like it and married the deceased. Hence, there is harassment. There is nothing stated by the deceased about specific mental or physical harassment regarding the dowry, except stating that the disputes increased by the wording of the A.1 that she was not doing any work in the home and for some petty things. It is her version that she was having two years old female child by that time and she was not able to attend the work at home, for which her mother-in-law used to taunt her. Whether this so called harassment comes within the purview of Section 498-A of I.P.C., to say it is mental cruelty and attracts Section 304-B of I.P.C.,
52.In this regard, the Counsel for accused relied on (2017) 1 SCC 433 between Gurcharan Singh Vs. State of Punjab. Their Lordships in the above referred decision while dealing with Section 306 of I.P.C., observed that the willful conduct whether mental or physical actuating the woman to commit suicide or to cause grave injury or damage to life, limb or health, is a sine qua non for finding of guilt against the person charged.
Hence, in every case, the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adducted in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide, or whether the victim was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs expected to induce similarly circumstanced individual in a given society to commit suicide.
53.My view in this regard was fortified in the decisions (1) 1994 1
SCC 73 between State of West Bengal V. Orilal Jaiswal; (2) 2010 1
SCC 707 between Amalendu Pal @ Jhantu V. State of West Bengal. As per the contents of the Dying Declaration in this case there was no cruelty or harassment regarding any dowry was found except some allegations attributed to deceased by A.1. Even there is no corroboration by material witnesses, who are parents and family members, about the harassment for dowry on the deceased by A.1 and A.2. There was no such harassment found caused to the deceased for any dowry or anything so as to say that she wasresorted to commit suicide, being left with no other alternative.
There is no provocative culpability found.
54.The Additional Public Prosecutor has argued before the court, though Section 304-B of I.P.C., does not attract, Section 306 of I.P.C., will attract in this case. But, there is no evidence in order to show that either A.1 or A.2 instigated the deceased to commit suicide. The intention and involvement of accused to aid or instigate the commission of suicide is imperative to constitute abatement in case of Section 306 of I.P.C., which is not there in the present case. It is found that the deceased was sensitive for everything, whereby could not take general things easily and is found as hypersensitive, because it is quite common in a society, which the accused and deceased had lived that there are some attributions always made by in- laws in regard to the domestic affairs. It does not mean that the accused harassed her mentally all the while till she committed suicide.
55.It is noted that the deceased herself stated that she poured kerosene on herself and later her mother-in-law closed the door and went away. She did not state that having seen her pouring kerosene on herself,
A.1 had gone away closing the door.
56.It is a fact that A.1 and A.2 are working people, admittedly going out every day. According to mother of deceased/P.W.1, A.1 works in Tirumala
Nursing
Home and used to work in the morning and return in the evening and A.2 works as clerk in a Temple and goes at 6-30 a.m., and returns at 8-00 p.m., every day. In these circumstances, admittedly the deceased committed suicide in the absence of A.2 and without the knowledge of A.1. As there is no clear version stated by deceased regarding the cruelty meted out in the hands of accused Nos.1 or 2 and as it is not found there was any harassment for additional dowry, the dying declaration statement of deceased cannot be considered to prove the guilt of the accused without corroboration. Hence, the dying declaration under Ex.P.23 is not found trust-worthy and not found attracting provisions of either Section 498-A of I.P.C., or Section 304-B of
I.P.C., or at-least Section 306 of I.P.C.,
57.Since the prosecution failed to prove the crucial ingredient of cruelty either by direct or by cogent evidence, the benefit of any statutory presumption available under Section 113-B of Indian Evidence Act cannot be drawn in favour of prosecution.
58.Regarding the offence alleged under Sections 3 and 4 of Dowry
Prohibition Act, there is nothing found on record regarding any demand for dowry or additional dowry from the parents of the deceased, by the accused.
P.Ws.1 to 4 themselves denied any dowry given by them to accused and any harassment for additional dowry by the accused against the deceased hence, it can be said that there is nothing to convict the accused for the offence under Sections 3 and 4 of Dowry Prohibition Act. In these circumstances, the accused can be given benefit of doubt. Point answered accordingly.
59. In the result, the Accused A.1 and A.2 are found not guilty for the offence punishable under Sections 498-A and 304-B of I.P.C., and
Sections 3 and 4 of Dowry Prohibition Act and they are acquitted under section 235(1) of Cr.P.C., for the said offences.
M.Os.1 and 2, shall be destroyed after expiry of appeal time.
The accused are ordered to execute self bonds for Rs.20,000/- and ordered to appear before any appellate Court, as and when they received any notices or summons from any appellate court under the provision of Section 437-A of Cr.P.C.,
Dictated to the Personal Assistant, transcribed by her,
corrected, signed and pronounced by me in open court, this the 2nd day of May, 2017.
Special Judge for trial of Cases under
S.Cs & S.Ts (POA) Act-cum-Addl. District &
Sessions Judge, Vizianagaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED.
For Prosecution:- For Defence:
PW1: Mahadasu Rangamma.None
PW2: Karanam Padma.
PW3: Konkipudi Krishna Veni.
PW4: Pulapaka Venkata Rao.
PW5: Mahadasui Bharathi.
PW6: Mutchu Hemalatha.
PW7: Routhu Padma.
PW8: Kornana Thata Rao.
PW9: Mutchu Sekhar.
PW10:Simhadri Narayana Rao.
PW11:Panass Bheema Rao.
PW12:Korada Srinivas Rao.
PW13:Dr. Subhadra.
PW14:Dr. P.V.K.S. Sharma.
PW15:Ch. V. Satyanarayana.
PW16: Smt N. Sri Laxmi.
PW17: T.Ch. Uvaraj.
PW18:R. Rama Krishna Rao.
PW19: S. Srinivas.
Documents Marked
For Prosecution:
Ex.P.1: The report of P.W.1 given to the police.
Ex.P.2: Section 161 Cr.P.C., Statement of P.W.1.
Ex.P.3: Section 161 Cr.P.C., Statement of P.W.2.
Ex.P.4: Section 161 Cr.P.C., Statement of P.W.3.
Ex.P.5: Section 161 Cr.P.C., Statement of P.W.4.
Ex.P.6: Section 161 Cr.P.C., Statement of P.W.5.
Ex.P.7: Section 161 Cr.P.C., Statement of P.W.6.
Ex.P.8: Section 161 Cr.P.C., Statement of P.W.6.
Ex.P.9: Section 161 Cr.P.C., Statement of P.W.7.
Ex.P.10: Section 161 Cr.P.C., Statement of P.W.7.
Ex.P.11: Signature of P.W.8 on the scene of observation report.
Ex.P.12: Signature of P.W.9 on the scene of observation report.
Ex.P.13: Section 161 Cr.P.C., Statement of P.W.10.
Ex.P.14: Signature of P.W.11 on Inquest Report.
Ex.P.15: Inquest Report.
Ex.P.16: Post Mortem Certificate.
Ex.P.17: Endorsement on the statement of deceased (Dying
Declaration).
Ex.P.18: Endorsement on Dying Declaration.
Ex.P.19: Endorsement on Dying Declaration.
Ex.P.20 to P.22: Positive photos of deceased.
Ex.P.23: Dying declaration recorded by Judicial Officer.
Ex.P.24: Medical intimation.
Ex.P.25: Statement of deceased P. Madhavi.
Ex.P.26:The original F.I.R., u/Secs.498-A, 306 r/w 511 of I.P.C.,
Ex.P.27:Scene observation report.
Ex.P.28:Rough Sketch.
Ex.P.29:The altered F.I.R., u/Sec.304-B of I.P.C.,
For Defence : Nil.
MATERIAL OBJECTS MARKED
For Prosecution:
M.O.1:One 5 Liters plastic can.
M.O.2:Burnt ash.
For Defence : Nil.
Special Judge for trial of Cases under S.Cs & S.Ts
(POA) Act-cum-Addl. District & Sessions Judge, Vizianagaram.
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