CRLA/306/2005 of The Public Prosecutor, Vs Boosi Bhujangi Rao, on 31 December 2009

JUDGMENT:

The State through the learned Public Prosecutor had filedthis appeal against the acquittal of the accused in S.C.No.10 of2001 on the file of the Principal Assistant Sessions Judge’s Court,Srikakulam, by the judgment dated 23-07-2001 in respect of anoffence punishable under Section 498 A of the Indian Penal Code.

The factual background for the appeal is that the deceasedBusi Malathi was married to the 1[st] accused on 17-3-2000 andafter leading a happy marital life for some time, the 1[st] accusedstarted suspecting the fidelity of Malathi. Unable to bear historture and assault almost everyday, Malathi reported to herparents, who got a panchayat conducted by the village elders. The 2[nd] accused, who is the mother of the 1[st] accused wasadvised by the elders to live separately and the 1[st] accused andMalathi started living separately in another adjacent house. The 3[rd] accused is the paramour of the 2[nd] accused and on hisinstigation, the 1[st] accused was beating Malathi, who was severelythrashed on 02-10-2000 alleging her to have illicit intimacy withothers. Malathi consequently drenched herself in kerosene andset fire to herself. She was joined in the hospital for treatment, butsuccumbed to the injuries at 6.50 P.M. on the same day. Onreceipt of the death intimation, the crime was registered, aninquest over the dead body was held and an autopsy wasconducted over the dead body. Extensive burns of 95% led to thedeath and the investigating officer arrested the accused 1 to 3 andsent them for remand. Hence, the charge under Sections 498 Aand 306 of the Indian Penal Code against the three accused.

After appearance of the accused before the Magistrate, thecase was committed to the Court of Session after furnishing thecopies of documents to them and the Court of Session framed acharge under Section 498 A of the Indian Penal Code againstaccused 1 and 2 and Section 306 of the Indian Penal Code againstaccused 1 to 3, which charge was denied by the accused. Duringthe course of trial, the prosecution examined PWs.1 to 13 andmarked Exs.P.1 to P.21 and M.Os.1 to 3. The accused denied theincriminating circumstances appearing against them in theevidence, when they were examined under Section 313 of theCode of Criminal Procedure and no defence evidence wasadduced except marking Exs.D.1 to D.3.

The trial Court rendered the impugned judgment noting thatthe incident happened after about six and half months after themarriage of Malathi with the 1[st] accused and that the evidence ofthe prosecution about the harassment was only hear say. The trialCourt also noted that even the father did not claim to havewitnessed the harassment of the deceased Malathi by the accused1 and 2 and he also did not state the details of the alleged intervention by the elders through a panchayat. The burning of thehouse also during the incident was noted by the trial Court to beindicating the desperation of the deceased. The trial Court furtherobserved that the evidence of PWs.3 to 5, the neighbouringresidents, did not specifically refer to the acts of cruelty orharassment.

The trial Court further observed that in Ex.P.5 dyingdeclaration obtained by the Mandal Revenue Officer, PW.6, nothumb impression of the deceased was obtained claiming thesame to be due to the extensive burns on the person of thedeceased. It further noted that there is no certification of the stateof mind of the deceased at the time of recording of Ex.P.5 by theconcerned medical officer. The trial Court also presumed from theevidence of PW.8 and Ex.P.6 about 95% burns suffered by Malathithat she would not have been in a position to give any dyingdeclaration and it also found that even the Judicial Magistrate,PW.9, who recorded Ex.P.7 dying declaration, did not obtain theendorsement of the medical officer before recording Ex.P.7. Exs.P.5, P.7 and P.9 by PW.7, PW.9 and PW.11 respectivelywere found to be not inconsistent, but still were considered to benot sufficient to be acted upon in the absence of any certificationby the medical officer about the state of mind of the deceased.

When PWs.2 to 5 did not speak about any overt actscommitted by the accused, the trial Court felt that thecircumstances indicate a positive doubt about the state of mind ofthe deceased and in the absence of any other acceptableevidence, the benefit of reasonable doubt was given to theaccused. They were consequently acquitted.

The impugned judgment is challenged herein mainly on theground of incorrectness of the trial Court in not believing the dyingdeclarations recorded, coupled with the evidence of the doctor about the consciousness of the patient. The evidence of the directwitnesses could not have been discarded and hence, the Statedesires the acquittal to be reversed.

Sri K. Venkateswararao, learned counsel, representing thelearned Public Prosecutor and Sri P. Krishna Reddy, learnedcounsel representing Sri P. Sridhar Reddy, learned counsel for therespondents-accused are heard.

The point for consideration is whether the prosecutionproved the guilt of any of or all the three accused for offencespunishable under Sections 498 A and 306 of the Indian Penal Codebeyond reasonable doubt?

The marriage of the deceased Busi Malathi with the 1[st]accused, who is the son of the 2[nd] accused, on 17-3-2000 and thecouple living together in the marital home till the unnatural death ofBusi Malathi are admitted. That Busi Malathi died due to extensiveburns suffered by her on 02-10-2000 is also not in dispute. ThatBusi Malathi drenched herself in kerosene and set fire to herselfleading to such fatality is also not in dispute. What is incontroversy is whether it was any abetment by any of the accusedthat resulted in such suicide and also whether there was anycruelty through wilful conduct of any accused or any harassmentof the woman by any accused with a view to coercing thedeceased or any person related to her to meet any unlawfuldemand for property or valuable security.

The prosecution itself did not allege about any harassmentwith a view to coerce the deceased or any person related to her tomeet any unlawful demand for any property or valuable security oron account of failure to meet such demand. The alleged wilfulconduct of the accused which was attempted to be shown as

sufficient and likely to drive the woman to commit suicide wasalleged to be in respect of the suspicion entertained by the 1[st]accused against the character of the deceased, which if true, mayamount to cruelty.

Ex.P.9 statement of Malathi was recorded by the Sub-Inspector of Police in which similar allegations as made by theprosecution were claimed to have been made by the deceased. Ex.P.7 is similar statement recorded by the Judicial Magistrate ofFirst Class and in the said statement the deceased made noallegation against the 2[nd] accused and 3[rd] accused. She also didnot refer to the sister of the 1[st] accused as in Ex.P.9. She furtherdid not mention about any complaint to her parents or anyintervention of any elders and Ex.P.7 has an added detail inclaiming that the 1[st] accused did not intervene even whilewitnessing her being burnt. Ex.P.7 was endorsed by the medicalofficer to have been recorded, while the patient was inconsciousness and coherent. Ex.P.5 statement was recorded bythe Mandal Executive Magistrate from Malathi simultaneously, butthe same had no endorsement of the medical officer concernedabout the state of health or state of mind of the deceased whilegiving the statement. In distinction with Exs.P.9 and P.7, Ex.P.5alleged the father-in-law of Malathi also to be a participant inharassment and the said statement made no reference to thedeceased being very severely beaten on that day, which was theimmediate provocation for her committing the suicide.

The earliest version, which led to the registration of FIR,only stated about Malathi being found burnt when the villagersextinguished the flames and broke open the doors, but not to anyother circumstance, which led to the said incident. The PostMortem certificate, Ex.P.6, shows that the death was due to 95%

burns and the trial Court observed that a person, who suffered95% burns, might not be probably in a position to give a statementand at any rate would not be in a position to give a coherentstatement in a fit state of mind. The inquest report, Ex.P.4, ofcourse is a reiteration of the prosecution story and did not appearto be based on any personal knowledge of any of the witnesses tothe report.

PW.1, the Village Administrative Officer, who reported tothe police, only stated about his hearing about the suspicion of the1[st] accused against his wife resulting in beating her and he hadobviously no personal knowledge. He admitted that he did notenquire any villagers except hearing about the same from theparents of the deceased, who themselves were not directwitnesses to such harassment. PW.2, the father of Malathi, spokeabout the settlement of disputes before mediators, but he is aresident of some other village and had only the informationallegedly given by his daughter in this regard. PWs.3 to 5 wereexamined in respect of the alleged harassment but their evidencedoes not disclose that they had in fact witnessed any act of suchharassment. Their evidence is more suggestive of their hearingabout the disputes or harassment and not about any personalknowledge for them.

PW.9, the Magistrate, had to admit that he did not obtainany certification from the doctor about the fit condition of thepatient to give a statement before recording the dying declaration. PW.7, who recorded Ex.P.5, also had to admit that the doctor didnot certify that the patient was in a fit condition to give astatement. PW.11, who claimed to have recorded Ex.P.9statement, did not register the crime on the strength of suchstatement and the medical officer, who was present when Exs.P.5,P.7 and P.9 were recorded and who certified in two of the

Conclusion

statements about the state of health and mind of the deceasedhimself was not examined. The inconsistencies andimprovements between three dying declarations coupled with suchother circumstances may make the dying declarations alone anunsafe material for convicting any of the accused.

The prosecution evidence did not absolutely make anypositive reference to the involvement of the 3[rd] accused and hisalleged instigation to the other two accused remained only anallegation of the prosecution unsupported by an iota of evidence. Even concerning the 2[nd] accused, except the omnibus allegationsmade in the three dying declarations about the mother-in-law andsister-in-law also being involved in the harassment, there was noevidence for the prosecution at all and the dying declarations givenby the deceased to the Magistrate may be suggestive of thegrievance of the deceased being confined to the 1[st] accusedalone.

Concerning the grievance of the deceased concerning the1[st] accused, it has to be noted that in spite of his allegedlyseverely assaulting and beating the deceased on number ofoccasions, on no occasion the deceased was claimed to havebeen examined by any doctor and apart from the absence of anymedical evidence concerning such aspects, it is also seen fromEx.P.6-Post Mortem certificate that the medical officer did notmake any reference to finding any traces of severe beating andthrashing of the deceased on that day, which of course may bedue to the body being subjected to 95% burns by the time it wasbrought to the hospital. It is also to be seen that there is nospecific evidence as to with which person the deceased wassuspected to be having any intimacy by the 1[st] accused and allthese circumstances coupled with similar conclusions by the trial Court, which had the benefit of observing the demeanor of thewitnesses in flesh and blood have to lead to giving the benefit ofreasonable doubt to the 1[st] accused also in respect of both theoffences.

Under the circumstances, there are no strong reasons toreverse the acquittal of the accused by the impugned judgment.

Accordingly, the Criminal Appeal is dismissed.

Date: 31-12-2009

_____________________

G. BHAVANI PRASAD, J

Ksn