Abdul Raheem vs The State of Andhra Pradesh

B. Seshasayana Reddy, J.—This Criminal Appeal is directed against the judgment dated 20-11-2001 passed in Sessions Case No. 56 of 2001 on the file of the IVAdditional Metropolitan Sessions Judge, Hyderabad, whereby and whereunder, the learned Additional Sessions Judge found A1- Abdul Raheem and A2-Sayeeda Bee @ Sayeeda guilty for the offences under Sections 304-B and 498-A IPC, convicted them accordingly and sentenced each of them to undergo rigorous imprisonment for a period of 7 years for the offence u/s 304-B IPC and rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for three months for the offence u/s 498-A IPC.

The prosecution case in brief is:

A1-Abdul Raheem is son of A2- Sayeeda Bee @ Sayeeda. P.W.1-Putli Bai is mother of P.W.2-Mohd Ghouse and Fatima Begum.A1 married Fatima Begum on 12-03- 1997. At the time of marriage, P.W.1 gave a cash of Rs. 10,000/- and presented one tola of gold and furniture etc. Jahez articles presented at the time of the marriage have been detailed in the list, which has been exhibited as Ex.P1. A1 and A2 looked after Fatima Begum for about one year without any discomfort. Rather it can be said that Fatima Begum had happy marital life for about one year. Thereafter, A1 and A2 started harassing Fatima Begum for additional dowry and resorted to physical assaults. Fatima Begum used to inform the harassment meted out by her in the hands of the accused to her mother and brother whenever she happens to visit them. It is further alleged that A1 demanded Rs. 10,000/- as additional dowry, which has been complied with by P.W.1. Two years after the marriage, a female child was born to Fatima Begum. On the eve of the birth of the child, P.W.1 gave one tola of gold and cash of Rs. 5,000/- to A1. Being not content with the money received from P.W.1, A1 demanded her to give mulgi situated at Natarajanagar. P.W.1 has two mulgies at Natarajanagar. She did not oblige A1 as she has two sons whom she intends to give the two shops, one to each. As the demand of A1 has not been met by P.W.1, A1 and A2 used to beat Fatima Begum. A1 also demanded money from P.W.1 to get an auto licence, but P.W.1 refused to oblige his demand. P.W.1 received a telephone call on 26-09- 2000 with regard to admission of Fatima Begum in Osmania General Hospital with burn injuries on her person. P.W.1 along with her son P.W.2 rushed to the hospital and found Fatima Begum with burn injuries on her person. Even before they reached the hospital, an intimation was sent to the VI-Metropolitan Magistrate at Hyderabad with regard to the admission of Fatima Begum in Osmania General Hospital with burn injuries on her person. Ex.P6 is the intimation sent to the Magistrate. P.W.6-M.Rambhadra Rao, VI-Metropolitan Magistrate, Hyderabad received Ex.P6 and proceeded to Osmania General Hospital. He recorded the dying declaration of Fatima Begum in the presence of Dr D.B.N.Prasad, who certified the fit state of mind of the declarant. Ex.P7 is the dying declaration of Fatima Begum recorded by P.W.6. Fatima Begum stated in her dying declaration that she caught fire accidentally while cooking and that her in-laws extinguished flames and admitted her to hospital. P.W.7-Syed Jalal Hussain, Sub-Inspector of Police, Asifnagar, received intimation from Osmania General Hospital on 26-09-2000 at 8.00 p.m with regard to the admission of Fatima Begum in the hospital with burn injuries. He deputed B.Krishna, H.C.6033, to Osmania General Hospital for recording the statement of Fatima Begum. The said Head Constable recorded the statement of Fatima Begum, which has been exhibited as Ex.P10. It is the version of Fatima Begum in Ex.P10-statement that on 26-10-2000 at about 11.00 hours, her husband (A1) quarreled with her since he lost his auto licence and beat her with hands at about 11.30 houRs. Her statement further reads that her in-laws abused her in filthy language and thereupon, she poured kerosene on her and lit a matchstick so as to threaten her husband (A1) and thereby she caught in flames and that her husband (A1) and her aunt (A2) brought her to hospital. The Head Constable handed over Ex.P10 statement of Fatima Begum to the S.H.O., Asifnagar. P.W.7, Sub-Inspector of Police, Asifnagar received Ex.P10 and registered a case in Crime No. 235 of 2000 for the offence u/s 498-A IPC and issued Ex.P11, F.I.R. P.W.9-R.G.Shiva Maruthi, Sub-Inspector of Police, took up investigation, visited the scene of offence situated at H. No. 12-2-418/B/6, Viswasnagar Colony, Hyderabad and conducted scene of offence panchanama and seized particularly burnt cloth pieces and white kerosene plastic tin, which have been exhibited as M.O.1 and M.O.2, under the cover of Ex.P2-panchanama in the presence of P.W.3 and another namely Ismail Khan. On 28-09-2000, P.Ws.1 and 2 approached him and informed that Fatima Begum wanted to disclose some more facts regarding the incident. Therefore, he rushed to the Osmania General Hospital and recorded the statement of Fatima Begum and sent a requisition to the Magistrate for recording the statement of Fatima Begum once again. P.W.6 received Ex.P8 requisition on 28- 09-2000 at 1.10 p.m. He proceeded to Osmania General Hospital and recorded the dying declaration of Fatima Begum. The dying declaration has been exhibited as Ex.P9. Fatima Begum stated in Ex.P9 that her husband Abdul Raheem (A1) and her in-law Sayeeda Bee (A2) used to quarrel with her on petty matters and abuse her and three days back at 1.00 p.m, her aunt (A2) and her husband (A1) poured kerosene and set her on fire and that her husband (A1) and aunt (A2) extinguished flames and brought her to hospital. On 30-09-2000 at 6.00 a.m Fatima Begum succumbed to burn injuries while undergoing treatment. P.W.9 received death intimation on 30.09.2000 at 7.10 a.m. He sent a requisition to RDO to depute MRO to conduct inquest over the dead body of Fatima Begum (hereinafter referred to as "the deceased"). P.W.8-G.Vijaya Kumar, MRO held inquest on the dead body of the deceased in the presence of P.W.4-Mohd Ghouse and another person viz., Smt Kareemunnisa. During the course of investigation, he examined P.Ws.1 and 2 and recorded their statements, which have been exhibited as Exs.P12 and P13. After the inquest, the dead body was sent for post mortem examination. P.W.5- Dr.P.Srinivas Rao conducted post mortem examination on the dead body and issued Ex.P5 post mortem report opining that the deceased died due to burns. P.W.10 - V.Rama Krishna, Inspector of Police, Asifnagar Police Station took up investigation and altered Section of Law from 306 IPC to 498-A and 302 IPC and filed Ex.P14 memo of alteration of Section of Law. He arrested A1 and A2 on 12- 10-2000 and 03-11-2000 respectively and sent them for remand. After completion of investigation, he laid charge sheet before the IX-Metropolitan Magistrate, Hyderabad.

The learned Magistrate took the charge sheet on file as PRC No. 19 of 2001 and committed the case to the Metropolitan Sessions Judge as the offence u/s 302 IPC is exclusively triable by a Court of Session. The learned Metropolitan Sessions Judge took the case on file as S.C. No. 56 of 2001 and made over the same to the IV-Additional Metropolitan Sessions Judge for disposal according to law.

The learned IV-Additional Sessions Judge, on hearing the prosecution and the accused, framed two charges against the accused. Firstly, for the offence u/s 498-A IPC and secondly, for the offence u/s 302 IPC. He read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried.

To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined 10 witnesses and proved 14 documents and exhibited two material objects. The plea of the accused was one of total denial of the case.

The learned Additional Sessions Judge, on hearing the prosecution and the accused and on considering the material brought on record, found the accused guilty for the offences under Sections 498-A and 304-B IPC, convicted them accordingly and sentenced them as stated supra. However, the learned Additional Sessions Judge found the accused not guilty for the offence u/s 302 IPC and acquitted them accordingly. The accused have filed this Criminal Appeal assailing their conviction and sentence for the offences under Sections 498-A and 304-B IPC.

Heard learned Counsel appearing for the appellants/accused and the learned Additional Public Prosecutor appearing for the respondent/State.

Learned Counsel appearing for the appellants/accused submits that there is no consistency in the dying declarations of the deceased and therefore, no reliance can be placed on any one of the dying declarations, in which case the conviction and sentence of the appellants/accused for the offences under Sections 498-A and 304-B IPC is not legal and proper and the same is liable to be set aside. The learned Counsel took me to all the three written dying declarations and two oral dying declarations to convince that there is no consistency with regard to the version of the incident. In support of his submissions, reliance has been placed on the following decisions:- State of A.P. v. Shaik Moin : (2004)6SCC34 , State of Punjab Vs. Parveen Kumar, , Chinnamma v. State of Kerala 2004 SCC (Cri) Supp 209, Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P., Learned Counsel also submits that none of the dying declarations speaks of dowry demands and in which case, the death of the deceased cannot be categorized as a dowry death and thereby conviction u/s 304-B IPC is wholly unwarranted.

The Learned Additional Public Prosecutor submits that the dying declaration recorded by the Magistrate for the second time clearly speaks of the appellants/accused as persons responsible for causing burn injuries to the deceased and the version of the incident spoken to by the deceased in the dying declaration recorded by the Magistrate for the second time has been corroborated by the oral dying declaration spoken through P.Ws.1 and 2 and in which case the conviction and sentence of the appellants/accused for the offences under Sections 498-A and 304-B IPC is legal and proper and the same is not liable to be interfered with.

I do not wish to make the judgment bulky by referring to the various decisions of this Court and the Supreme Court with regard to the proposition of law laid down on the acceptance of the dying declarations. It is suffice to refer to the latest decision of the Supreme Court in Nallapati Sivaiah''s case (4 supra), wherein it has been stated that the dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only on the testimony of the person recording dying declaration - be it even a Magistrate but also on the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion. The Court must satisfy to itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence.

In case of multiple dying declarations, the Supreme Court in Parveen Kumar''s case (2 supra) has observed that the mere fact that two different versions are given, but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful if there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations.

This case rests on the dying declarations of the deceased. The prosecution pressed into service three written dying declarations and two oral dying declarations of the deceased. The first dying declaration of the deceased came to be recorded by the Magistrate on 26-09-2000, which has been exhibited as Ex.P7. The second dying declaration came to be recorded by the Head Constable on 26-09-2000 at 21.30 hours and it has been exhibited as Ex.P10. The third dying declaration of the deceased came to be recorded on 28-09-2000 at 1.35 p.m and it has been exhibited as Ex.P9. The oral dying declarations of the deceased are spoken by P.Ws.1 and 2. As per Ex.P7, the deceased caught fire while cooking. It can be said that the deceased caught fire accidentally. She did not attribute anything to either her husband (A1) or her mother-in-law (A2). In the second dying declaration, which has been exhibited as Ex.P10, the deceased stated that she herself set fire so as to threaten her husband (A1) and her mother-in-law (A2). In the third dying declaration recorded by the Magistrate, which has been exhibited as Ex.P9, the deceased stated that her husband (A1) and her aunt (A2) poured kerosene and set her on fire. While coming to oral dying declarations, it is stated by P.W.1 that the deceased informed her of being set on fire by her husband (A1). For better appreciation, I may refer to the evidence of P.W.1 in her own words and it is thus:

I asked my daughter as to what happened. She stated that she does not know about the licence. Thereafter both the accused beat her and took her to the bed room. After going into the bed room, both of them poured kerosene on her and A1 set fire with a matchstick. Thereafter both the accused brought her to the hospital and got admitted. When she was admitted in the hospital, Magistrate came and recorded her statement.

The second oral dying declaration has been spoken out by P.W.2. According to P.W.2, he was informed by the deceased that both the accused set fire. For better appreciation, I may refer to the evidence of P.W.2 in his own words and it is thus:

We saw that my sister was with burn injuries and asked her as to what happened. Then she replied that both the accused poured kerosene on her and set fire due to which she received burn injuries and she did not disclose the real facts to the Magistrate as they have threatened to kill her. She further stated that she was set fire by both the accused in their bedroom. On that we went to the police station and informed them that the accused did not inform us regarding the incident though we were residing nearby the house of the accused and requested them to call the Magistrate again as the deceased did not give the real picture because of threat by the accused.

It is the evidence of P.Ws.1 and 2 that deceased did not inform the real facts because of the threats hurled by the accused. The last written dying declaration of the deceased came to be recorded on 28-09-2000 at 1.35 p.m by the Magistrate. The deceased did not whisper of the threats allegedly hurled by the appellants/accused. There is no explanation from the deceased for exculpating the accused in her earliest dying declaration, which came to be recorded by the Magistrate on 26-09-2000. Any explanation for exculpating the accused in the commission of the offence in the first dying declaration and inculpating them in the second dying declaration must come from the mouth of the declarant-deceased. It is not for P.Ws.1 and 2 to explain as to why the deceased did not attribute anything to her husband (A1) and mother-in-law (A2) in her first dying declaration. P.W.1 admits of her being with the deceased from 26-09-2000 to 30-09-2000. If it is the case of P.W.1 that the deceased did not reveal the true facts because of threats hurled by the accused, nothing prevented her from informing the same to the police immediately. The very fact that she kept silent till 28-09-2000 indicates that the second dying declaration of the deceased, recorded by the Magistrate, is a tutored one. Therefore, once the second dying declaration recorded by the Magistrate is eschewed, there is no evidence on record to connect the appellants/accused with the commission of the offence. The trial Court has not correctly appreciated the evidence brought on record and thereby erred in recording conviction of the appellants/accused for the offences under Sections 498-A and 304-B IPC.

Accordingly, this Criminal Appeal is allowed setting aside the conviction and sentence of the appellants/accused for the offences under Sections 498-A and 304-B IPC and they are acquitted of the same. The bail bonds furnished by them shall stand cancelled. The fine amount, if any, paid by the appellants/accused shall be refunded to them.