H SHANKER Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This a conviction appeal. The sole accused, who, though was prosecuted for the offence punishable under Sections 302 and 498-A I.P.C., was acquitted of the offence under Section 302 I.P.C., but was convicted for the offence under Section 498-A I.P.C. and was sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for a period of six months. The deceased, namely, Jaisree, died in the early hours of 3-4-1987 in consequence of the burn injuries she has sustained on 2-4-1987 at about 9-30 p.m. P.W.1 is the brother of the deceased, while P.W.2 is her father. P.W.3 is the co-brother of the accused i.e. another son-in-law of P.W.2. P.Ws. 4 and 5 Preeti and Khanna are the daughter and son of the accused and the deceased. While P.Ws. I and 2 reiterated that the deceased died on account of the burn injuries caused by the accused by dozing kerosene on her and setting her ablaze. The defence of the accused is that while they were in sleep, the pillow and the bed caught fire because of the leak from the bed lamp, which was kept by the side of their bed. According to him, himself, his wife - the deceased and the children were sleeping and this unfortunate fire occurred and that he tried to save the deceased and that not only the deceased, but also himself and children P.Ws. 4 and 5 also sustained burn injuries. Medical evidence amply shows that the deceased sustained 100% injuries and the accused also sustained 65% of the burn injuries. ChildrenP.Ws. 4 and 5 also sustained bum injuries. Children-P.Ws. 4 and 5 did not allege that their father has caused bum injuries to their mother-the deceased. It was only after several months of their custody with P.W.2 and on constant and insistent examination by the police they stated that the accused poured kerosene on the deceased and set her ablaze. Further, for the same reason that no offence was made but against the accused, the police closed the case and presumably the statements under section 161 of Cr.P.C. did not support the accusation and so also the other material. It was after more than one year after the said report by the police, the private complaint was lodged against the accused by the father of the deceasedP.W.2 and then investigation was again taken up by the police and charge-sheet has been filed. The fact that burn injuries were sustained by the accused, deceased and P.Ws. 4 and 5 is not disputed. If really, the accused has dozed kerosene on the deceased and set her ablaze there is no reason as to why he should sustain burn injuries and that too upto 65%. No reasons are forthcoming as to how P.Ws. 4 and 5 - the children - had sustained the bum injuries. Further, no dying declaration was recorded from the deceased. The dying declaration, which was recorded from the accused, amply corroborates his version that it was a sheer accident, as stated by him. The version given by the accused is cogent and consistent, while that of the prosecution is an after-thought and is cooked up. The evidence adduced by the prosecution does not inspire any confidence and there is any amount of cloud, which casts doubt on the story of the prosecution.

(2.) Further, the ingredients of Section 498-A I.P.C. are not made out at all. Section 498-A which has been incorporated later in the statute book-Indian Penal Code comes into play whenever husband or relative of husband of a woman subjects such woman to cruelty. The term 'Cruelty' is defined under the explanation to the said section as "(a) any willul conduct which is 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 (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person relating to her to meet such demand."

(3.) Having regard to the above statutory provision, which has been incorporated by amendment later in the statute book-Indian Penal Code, because of the dowry harassment, I have to see whether in fact, the accused has demanded any dowry. There is no allegation that any of his relatives have demanded any dowry. There is no evidence forthcoming, which is either clinching or legally acceptable, so as to say that the accused had acted cruelly, within the meaning of Section 498-A I.P.C. Admittedly, even according to the prosecution, it is not a case of the accused driving the deceased to commit suicide. As such, sub- clause (a) of explanation to Section 498-A I.P.C. is not applicable. With regard to unlawful demand of property stated by P.Ws. I to 3, the evidence adduced is not of worth credence. Exs. P-2 and P-3 are inadmissible in evidence as they are only the xerox copies of the alleged letters said to have been addressed by the deceased to P.W.2. They are inadmissible in evidence for the reason that originals have not been produced. The explanation for not producing the originals is un-acceptable as it is not proved that they were in the custody of the police. Further, the hand-writing of the deceased is disputed and the same has not been proved by the prosecution. Above all, there is no version in the statements recorded under Section 161 of Cr.P.C. at the earliest point of time, that any unlawful demand was made by the accused and in fact that was the prime reason for the police to drop the prosecution accepting the version of the accused that the burn injuries sustained was only an accident. Exs. D-4 to 6 and 8 are worth considering which support the version of the accused and discredits the story of the prosecution. Ex.D-3 is the letter , datad 9-1-1987 written by P.W.2 to the accused, which reads as follows :