1. The judgment in S.C.No. 173 of 1992 on the file of II Additional Sessions Judge, Karimnagar, dated 22-4-1993, convicting the appellants (accused Nos. 1 to 3) under Section 498-A, I.P.C. and sentencing them to suffer rigorous imprisonment for a period of two years and also to pay a fine of Rs. 4,000/- each in default to undergo simple imprisonment for three months, is assailed in this appeal.
2. The facts leading to this appeal in brief are that a charge-sheet has been laid by the Sub-Divisional Police Officer, Jagtial, against three appellants alleging that they caused the death of Padma alias Jayasree for dowry and thereby they committed an offence punishable under Section 304-B, IPC. It is the case of the prosecution that accused No. 1 is resident of Vempet, within the limits of 'Metpalli Police Station, accused No. 3 is the eldest sister of accused No. 1 and accused No. 2 is husband of accused No. 3. The deceased was married to accused No. 1 on 24-6-1988. Her lather presented eight tolas of gold and Rs. 10,000/-in cash to accused No. 1 towards dowry, besides other articles, on the occasion of the marriage. They lived happily for about one year and thereafter accused No. 1 started harassing the deceased demanding more dowry from her parents. Accused No. 1 ultimately shifted his family to Hyderabad and began to live with accused Nos. 2 and 3 and at their instance she was physically and mentally harassed by accused No. 1. On 12-11-1989 the deceased gave birth to a female child. Accused No. 1 demanded three tolas of gold for the child and sarees for his sisters on the occasion. But, P.W.I, father of the deceased, could not fulfil the demands. However, he promised to provide two tolas of gold later on. Accused No. 1 grouse ill-will against the deceased and beat her in the presence of the relatives, who gathered for Barasala function. Three months thereafter the deceased joined her husband in her in-law's place. Accused No. 1 once again demanded a sum of Rs. 2,000/- and one almirah. Thereupon, the deceased secured Rs. 2,000/-from her parents, but she kept her gold ornaments with her parents as she apprehended that accused No. 1 may sell away the same. On 1-6-1990 accused No. 1 took the deceased again to Hyderabad where they lived with accused Nos. 2 and 3. It is alleged that accused No. 1 started beating her at the instance of accused Nos. 2 and 3 for keeping the gold ornaments with her parents and also for not bringing two tolas of gold as promised by her father. On 11-6-1990 at about 4.00 p.m. accused No. 1 beat the deceased with a rope on her head, back and on hands while accused No. 2 caught hold of the hands and accused No. 3 caught hold of her tuft of heir. Accused No. 1 also fisted her severely on her throat and face and thereupon the deceased developed high fever. On 12-6-1990 accused No. 1 took the deceased to Vempet and left her in her parents house. As the deceased was suffering from high fever, her father took her to Metpalli and admitted her in Government Hospital, Metpalli on 16-6-1990. P.W.I also lodged a report, Ex. P.1, at Police Station, Metpalli, where a case in crime No. 65/90 under Section 498-A, I.P.C. has been registered. While undergoing treatment the deceased died on 20-6-1990 at 9.15 p.m. During the course of investigation inquest was held on the dead body of the deceased and thereafter post-mortem examination was conducted by P.W.I 1. On the basis of the material gathered during the investigation, the Sub-Divisional Police Officer, Jagtial, filed a charge-sheet with the above allegations.
3. The case was committed to the Court of Session, Karimnagar, as the offence under Section 304-B, IPC is exclusively triable by a Court of Session. It was made over to the II Additional Sessions Judge, who framed a charge under Section 304-B, IPC against accused Nos. 1 to 3 and in view of their plea of not guilty, he tried them on the said charge. During the trial, the prosecution examined 12 witnesses and got Exs. P.1 to P.14 marked. P.W.l-V. Ramakishan is father of the victim, P. W.2-Anasuya is her mother, P. W.3-O. Srinivas is her brother and P.W.4-K. Prabhavathi is her sister. P.W.5-Tulasi Venkatanarsaiah is a tenant in the house of P.W. 1 and he is well-acquainted with the family affairs and P.W.6-V. Sree Rama Rao is brother of P.W. 1. P.W.7 is the Inspector of Police, who took up the investigation of the case in the first instance and handed over the same to the Assistant Superintendent of Police, Jagtial. P.W.8-0. Geeta Rao is paternal aunt of the deceased. P.W. 9-O. Swaroopa Rani is her sister. P.W.lO-Ch. Vanaja is inquest panchdar, P.W. 11 -Dr. R. Malla Reddy is autopsy surgeon and P.W.12-Sub-Inspector of Police is one of the Investigating Officers, who registered the Crime on the basis of Ex. P.1, lodged by P.W.I.
4. Among the documents relied upon by the prosecution Ex. P. 12 is the statement recorded by P.W.11-Dr. Malla Reddy while the deceased was undergoing treatment in the hospital and Ex. P. 14 is the statement of the deceased recorded by P.W. 7 under Section 161, Cr. P.C.
5. A perusal of the evidence of P.Ws. 1 to 6 and 8 to 10 discloses that all of them did not support the case of the prosecution. Hence, they have been declared hostile by the learned Additional Public Prosecutor, who conducted the prosecution and cross-examined by him. The sum and substance of their evidence is that the deceased was married to accused No. 1 in 1988 and eight tolas of gold was presented to her at the time of marriage, besides cash dowry of Rs. 10,000/- to accused No. 1. Almost all the near relatives deposed that the deceased and accused No. 1 led happy family life. It is also in their evidence that the deceased begot a female child in 1989 and Barasala function was performed. According to them there was no untoward incident in that function. Adverting to the death of the deceased, all of them deposed that she was brought to their house by accused No. 1 with high fever and she was admitted in Government Hospital, Metpalli and she succumbed due to high fever. They specifically stated that they did not find any injuries on her body, nor did the deceased complain to them about any untoward treatment by accused Nos. 1 to 3. All of them have been cross-examined at length, but nothing is elicited from them by the learned Additional Public Prosecutor, so as to probabilise the prosecution case. As regards the cause of death even P.W. 11-autopsy surgeon deposed that he did not find any external injuries and that he found sub-conjunctual haemorrhage in right eye and haematoma on centre of forehead and in a portion of brain and she died of cerebral haemorrhage, which is possible in the case of high fever.
6. The learned Additional Sessions Judge scrutinised the above evidence and held that the deceased died a natural death on account of high fever. He, however, accepted the version emanating from Ex. P.12, statement of the deceased, recorded by P.W.I, as corroborated by P.W.14, statement under Section 161, Cr. P.C. and held that the prosecution has succeeded in establishing the guilt of the accused under Section 498-A, I.P.C. Accordingly, they have been convicted thereunder while they were acquitted under Section 304-B, I.P.C. Hence, this appeal.
7. Sri E. Ella Reddy, learned counsel for the appellants strenuously contended that Ex. P.12 cannot be treated as dying declaration for the simple reason that it does not relate to the cause of death of the victim. Referring to the deposition of P.W.11, he contended that Ex. P. 12 is the outcome of the tutoring by the parents and other relatives of the deceased, who were admittedly present by her bed-side and they were prompting her to make the statement. He also contended that Ex. P. 14, which is sought to be used as piece of corroboration, also cannot be treated as substantive evidence and if these two documents are eschewed from consideration, there is no evidence against the appellants. On the other hand, Ms. Nasreen, advocate, representing the learned Public Prosecutor, contended that Ex. P.12 falls squarely within Section 32 of the Evidence Act (for short, the Act) and hence it can be a legal basis for convicting the appellants. She further contended that Ex. P. 14 is another dying declaration and on the basis of these two documents, the conviction of the appellants under Section 498-A, I.P.C. is sustainable..
8. I applied my earnest consideration to the above contentions and scrutinised the entire evidence. It is true that all the witnesses, including near relatives of the deceased, have not supported the case of the prosecution. Hence, they have been declared hostile and cross-examined by the prosecution counsel. It is noteworthy that even the autopsy surgeon is unable to trace the case of death to the so-called internal injuries found by him. He stated that the deceased died due to cerebral haemorrhage, which is possible even without any injury and on account of high fever, high headache or high B.P. Undoubtedly, the prosecution could not establish that the deceased died homicidal death, be it at the hands of the appellants or any other cause. Keeping this aspect in view, statement Ex. P. 12 will have to be scrutinised.
9. I carefully read the statement, Ex. P.12. It was recorded on 18-6-1990. It is on record that the deceased was admitted in the hospital on 16-6-1990. If P.W.I 1, Civil Assistant Surgeon of the Hospital, had entertained any doubt that the condition of the deceased was precarious and therefore there was necessity to record her dying declaration, he ought to have informed the concerned Police to requisition the concerned Magistrate for the purpose of recording dying declaration. It is also on record that the deceased survived for four days in the hospital. Although P.W. 11 deposed that she was in a semi-conscious state at the time of admission, it is his assertion that she was conscious at the time of making Ex. P. 12 statement. If that is so, no reason is assigned either by him or P.W.7, Investigating officer, as to why the services of a Magistrate are not requisitioned. The Supreme Court has time and again stressed the need ffor getting dying declaration recorded by Judicial Magistrates and not to resort to others. It is a well-known fact that only in the event of a Magistrate not being available or under special circumstances that a doctor or some other person may record a dying declaration. It is also noteworthy that this statement was sent to the Court on 6-3-1992 as per the endorsement of the concerned Magistrate. This again is a suspicious circumstance. In the. above circumstances, Ex. P. 12 does not deserve much credence.
10. Be that as it may, the contents of Ex. P.12 show that the deceased was assaulted by accused Nos. 1 to 3, but the evidence on record is otherwise. There is absolutely no material to support the case of the prosecution that accused Nos. 1 to 3 had assaulted her. Though at the cost of the repetition, it may be stated that P.W.I, autopsy surgeon, also did not find any external injuries either when she was admitted in the hospital for treatment or during post-mortem examination. The cause of her death being different than what is stated by her in Ex. P. 12 is loses its credence altogether. A bare reading of Section 32(1) of the Act shows that the statement of the deceased when it relates to cause of death is admissible in evidence. As the cause of death is a natural death, the contents of Ex. P.12 do not fall within the ambit of Section 32(1) of the Act. Likewise Ex. P14, statement recorded under Section 161, Cr. P.C. which is sought to be used as a piece of corroboration by the learned Additional Sessions Judge, the same reasoning as above applies and that statement also cannot be treated as dying declaration within the meaning of Section 32(1) of the Act. Thus, I hold that Exs. P.12 and P.14 are not at all helpful to convict the appellants. In my view, the learned Additional Sessions Judge committed an error in accepting Exs. P12 and P. 14 as substantive evidence and in convicting them on the basis of the above material.
11. For the above reasons, the appeal is allowed and the conviction of the appellants under Section 498-A, I.P.C. is set aside and they are acquitted of the said charge. The fine amount, if paid, shall be refunded to them. Their bail bonds shall stand cancelled.