KODAM GANGARAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 3-3-1993 in SC No.261 of 1991 on the file of Sessions Judge, Karimnagar, under winch accused No. 1 has been convicted for the offence under Section 304-B of Indian Penal Code (IPC) and sentenced to undergo Rigorous Imprisonment for seven years and further convicted for the offence under Section 498-A IPC and sentenced to undergo Rigorous Imprisonment for three years and a fine of Rs.100.00 and in default to undergo Simple Imprisonment for one month. Accused No.2 and 3 have been convicted for the offence under Section 498-A IPC and sentenced to undergo Rigorous Imprisonment for three "years each, and to pay a fine of Rs.100.00 each in default, to undergo Simple Imprisonment for one month each.

(2.) The facts relevant to this appeal may be stated briefly as follows: The deceased-Anasurya was married to accused No.l on 20-4-1990. It is in the evidence that at the time of marriage the parents of the deceased, PWs.4 and 5, promised to give 2-1/2 tulas of gold to accused No.l but at the time of marriage only 1/2 tula of gold ring was given and the balance of two tulas of gold remained to be given. Originally, PWs.4 and 5, parents of the deceased, are the residents of Sankepalli; and accused No.1 is the resident of Thangallapalli from where accused No.l is said to have shifted to Siricilla a month prior to the death of the deceased. It appears that PW4 had been living at Bheewandi in connection with his work on power loom. The accused is said to have made persistent demand for the balance of two tulas of gold and in that connection he has been harassing the deceased. Apart from other instance of harassing it is in the evidence of PWs.4 and 5 that one month prior to the death of the deceased, accused No.l and the deceased went to Bheewandi to visit the sister of accused No. 1, accused No.3, who was also living at Bheewandi. During the visit accused No.l and the deceased met PW4 and they renewed the demand for the balance of two tulas of gold. It is in the evidence of PW4 that on that occasion accused No.l told PW4 that he should either give two tulas of gold or Rs. 10,000.00 cash. Otherwise, it would not be good. PW4 promised to give the balance of gold jewellery within three or four months. Thereafter, accused No. I and the deceased returned back to Thangallapalli. On 14-12-1990 PW4 received a telegram that his daughter died. He left Bheewandi and reached Sankepalli on the next day and by then the deceased was cremated. It appears that on 12-12-1990 at about 4.30 p.m. the house of accused No.l at Siricilla was on fire and on the information of PW2, the neighbour of PW1, the Fire Officer, went to the house of the accused with Fire Engine and extinguished the fire. The deceased was shifted in the same fire engine vehicle to the Government Hospital, Siricilta where she was admitted. PW10, Medical Officer, gave information about this to the Police and also to the concerned Magistrate. PW14, Magistrate, went to the Hospital and recorded the statement of the deceased-Ex.P5. In the meanwhile, PW15, Head Constable, also went to the Hospital and recorded the statement of the deceased-Ex.P12 which was treated as FIR and a case in Crime No.160 of 1990 was registered and FIR Ex.P13 was issued and investigation was taken up. PW12, Mandal Revenue Officer, called in who conducted the inquest over the dead body and prepared the inquest report Ex.Pl. Thereafter, the dead body was sent for post-mortem examination and PW8 conducted the postmortem examination and gave post-mortem report-Ex.P2. In his opinion the deceased died on account of deep 95% burns. During the course of investigation besides PW4-father of the deceased, PW5-mother and PW6-sister of the deceased have been examined. PW3 is a neighbour who saw the flames from the house of accused No.l. PW7 is the Panch who attested the Inquest Report. PW15 is the Head Constable who went to the scene of offence and seized MOl-kerosene tin and MO2-partly burnt cloth pieces under Panchanama, Bx.P3 which was attested by PW9. PW10 is the doctor who gave intimation to the Police and the Magistrate and was present during recording of dying declarations of the deceased.., PW 11 is the Deputy Director (Investigation) who investigated into the offence. PW13 is the Civil Assistant Surgeon in the Head Quarters Hospital, Karimnagar, where the deceased was admitted. PW16 is the Civil Surgeon who treated the deceased at Karimnagar Head Quarters Hospital. PWs.17 and 18 are the Investigating Officers. Thus, PWs.l to 18 were examined on behalf of the prosecution and Exs.P1 to P15 and MOs.1 to 3 were marked. The accused have not chosen to examine any defence evidence on their behalf. The learned Sessions Judge believed the evidence of prosecution and convicted and sentenced the accused as stated above. The question for consideration is whether the prosecution succeeded in proving the guilt of accused beyond reasonable doubt. The prosecution mainly depends on the evidence of dying declarations of the deceased recorded by PW14, Magistrate, and PW15, Head Constable. The prosecution also relies on the evidence of father (PW4) Mother (PW5) and sister (PW6) of the deceased as to the demand for gold and harassment to which the deceased was subjected to by the accused in connection with the demand. The prosecution also relies on the evidence of recovery of MO1, Kerosene tin, said to have been recovered from the place where the deceased with burn injuries was found in her house to show that it was not a mere fire accident. In the dying declaration-Ex.P5 recorded by the Magistrate-PW14 the deceased made a categorical statement that her parents promised to give 2-1/2 tulas of gold in the marriage and gave only 1/2 tula gold and that for the balance of two tulas her husband was beating her. She refers to specific instance that she was beaten at Bheewandi also for the said gold. She further stated that as her parents are poor and they are living on the earnings of her elder brother. The torture of the accused became unbearable and she poured kerosene on herself and lit fire. She merely mentions the names of the three accused in this dying declaration and attributes torture and harassment specifically to her husband-accused No.1. But, in Ex.P12, recorded by the Head Constable-PW15, she seems to have implicated all the three accused by stating that her husband, her mother-in-law and her sister-in-law used to abuse her to get the agreed gold and added that her husband had beaten her twice or thrice in that connection. Taking this into account, on (he ground that accused Nos.2 and 3 had no opportunity to harass the deceased in connection with the demand for dowry, the trial Court acquitted accused Nos.2 and 3 of the offence under Section 304-B IPC.

(3.) The learned Counsel for the accused, however, contends that even in respect of accused No.l the dying declarations in Ex.P5 or Ex.P12 cannot constitute basis for conviction. It is firstly pointed out that the doctors-PW10 and another were said to be present when Ex.P5 was recorded by PW14, Magistrate, but the endorsement made by PW10 merely mentions that the deceased was conscious all through the statement. The contention of the learned Counsel is that it is not mere consciousness which is relevant, but the prosecution must show that the deceased was in a state of mind in which she could have given a statement which could be considered as a genuine representation of her thoughts. It is argued that neither PW10 nor PW14, Magistrate, has stated anything about the state of mind of the deceased. On this ground, it is contended that Ex.P5 cannot be accepted as the basis for conviction of the accused.