THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.491 of 2007 Date:25.04.2014 Between:
Kurva Ashok . Petitioner.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.491 of 2007 ORDER:
This revision is preferred against judgment dated 30-03-2007 in Crl.A.No.113/2002 on the file of VI Additional District & Sessions Judge (FTC), Mahabubnagar whereunder judgment dated 24-07-2002 in Sessions Case No.98/2002 on the file of Assistant Sessions Judge, Naryanpet was confirmed.
2. Brief facts leading to filing of this revision are as follows:-
Sub-Inspector of Police, Naryayanpet filed charge sheet alleging that accused is the husband of deceased-
P. Padmamma and on 27-05-2001 in the morning hours, deceased committed suicide as she unable to bear ill-treatment meted out by accused and that investigation revealed that accused demanded for money and harassed the deceased thereby, committed offences punishable under Sections 498-A & 306 IPC. On behalf of prosecution, 9 witnesses are examined and 11 documents are marked, besides two material objects. On behalf of accused, no witness is examined and no document is marked. On an over all consideration of oral and documentary evidence, trail Court found accused guilty for the offences under Sections 498-A & 306 IPC and sentenced him to suffer two years imprisonment with a fine of Rs.500/- for the offence under Section 498-A IPC and two years imprisonment with fine of Rs.500/- for the offence under Section 306 IPC. Aggrieved by the said conviction and sentence, he preferred appeal to the Court of Session, Mahabubnagar and VI Additional District & Sessions Judge (FTC), Mahabubnagar on a reappraisal of evidence, dismissed the appeal confirming conviction and sentence. Now aggrieved by the judgments of the Courts below, present revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner submitted that the trial Court and appellate Court have relied on the alleged Dying Declaration recorded by P.W.3, the medical officer, which is marked as Ex.P3, but both the Courts have failed to notice that the procedure for recording the dying declaration is not duly followed. He further submitted that this Ex.P3 is nothing but out come of tutoring and relying on such document is not at all correct. He further submitted that there is abnormal delay in sending F.I.R to the Court and that throws doubt as to the correctness of the prosecution case. He submitted that both the Courts failed to appreciate these aspects and that the accused is entitled for acquittal. On the other hand, learned Public Prosecutor submitted that the contents of F.I.R and the contents of D.D are corroborating with each other and both the trial Court and appellate Court have rightly appreciated evidence on record and that there are no grounds to interfere with the concurrent findings of the Courts below.
5. Now the point that would arise for my consideration in this revision is whether the judgments of the Courts below are legal, proper and correct?
6. Point:- According to prosecution, on 27-05-2001, the deceased committed suicide as she could not bear the ill-treatment meted out to her by the accused, who is her husband. In all 9 witnesses are examined on behalf of prosecution, but the main evidence, which relied on by trial Court and appellate Court is the evidence of P.W.3, the Doctor, who recorded dying declaration of deceased, which is marked as Ex.P3. P.W.1 who is a relative of accused and deceased, has not supported the prosecution case and she was treated hostile.
P.W.2 who is an independent witness has also not supported prosecution case, he was also treated hostile and cross-examined on behalf of prosecution. Civil Assistant Surgeon in Government Hospital, Narayanpet examined as P.W.3 deposed on 25-07-2001, at about 10:45 A.M., he received a requisition from S.H.O., Narayanpet to record dying declaration of an admitted patient and that he recorded the same in the presence of witnesses namely; Mallikarjun Ganesh Chari S/o.Balaji, Smt. Subhadramma and Sri Venkatesh. This D.D is marked as Ex.P3. As seen from Ex.P3, the medical officer has collected signatures and thumb impressions of the above referred three witnesses. The investigating officer has not examined these three persons as witnesses during investigation. The other witnesses P.Ws.4 to 8 are the mediators, inquest panchayatdars and the M.R.O., who conducted the inquest. Investigating Officer is examined as P.W.9, according to his evidence, on receipt of message from Government Hospital, Narayanpet, he proceeded to hospital and there issued requisition to the Duty Doctor to record Dying Declaration as Judicial First Class Magistrate and Executive Magistrate of Narayanpet are out of station. As per the procedure, whenever a patient with burn injuries is admitted in hospital, hospital authorities would send requisition to the Judicial First Class Magistrate of the area and also to the concerned police, after treating it as medico legal case. Here as seen from the evidence of P.W.3, he received requisition from the S.H.O., Narayanpet, at about 10:40 A.M., to record dying declaration. This requisition is not filed and according to P.W.3, he delivered back the requisition along with D.D to the investigating officer.
P.W.9 has not produced this document and there is no explanation from him for not filing requisition. According to P.W.9, on receipt of message from the Hospital, he proceeded to hospital. It is not stated what kind of message he has received, whether it is oral message or telephonic message or written message and he gave a very vague statement with regard to the nature of message and that message has not seen the light of the day. Now according to P.W.9, after receiving that message, he made enquiry and came to know that both Judicial First Class Magistrate and Executive Magistrate are out of station.
As per the practice and procedure, Chief Judicial Magistrate of the District would nominate Magistrates working in the District to attend for dying declaration duties and in case, a particular Magistrate who has to record dying declaration is on leave or absent for any reason, there would be incharge arrangements and so also when all the Magistrates are not available in the District due to any official conference or official work, then the concerned Executive Magistrate will be kept incharge for recording dying declaration. Here according to P.W.9, both Judicial First Class Magistrate of Narayanpet and Executive Magistrate are out of station.
He has not whispered anything as to who would be the incharge in the absence of concerned Judicial First Class Magistrate, who is entrusted with the duty of recording dying declaration. There is no bar for the Doctor to record Dying Declaration, but when the procedure contemplated nominating Judicial Magistrate of First Class to record dying declarations, there must be positive and convincing evidence to show the deviation. There is absolutely no material on record to show that concerned Magistrate was not available on that day except the self-serving interested testimony of Investigating Officer.
7. Now coming to dying declaration, which is marked as Ex.P3, the reason for committing suicide is “on 27-05-2001 (Sunday), the accused insisted the deceased to bring money and that she expressed her inability, for which, the accused abused and raised a quarrel with her and for that she poured kerosene and set fire”. According to material on record, the accused himself took the deceased to the hospital. Even P.W.3 deposed that he treated accused also, but there is no record or evidence to show at what time, the deceased was admitted in hospital. According to evidence of P.W.3, he was asked to record dying declaration of an admitted patient. This Ex.P3 do not disclose at what place, this dying declaration is recorded. It is also not known whether P.W.3 is a duty Doctor or some other Doctor working in the hospital. According to prosecution case, she was admitted on 27-05-2001 and died on 31- 05-2001.
So she was in hospital for about four days and there is no explanation from the prosecution as to why he has not taken steps for recording the dying declaration of victim by a Judicial First Class Magistrate. As already referred above, there is no material to support the version of P.W.9 as to the non-availability of Judicial First Class Magistrate and Executive Magistrate on 27-05-2001, even if that statement is accepted there is no material to show the availability of Judicial First Class Magistrate on the next three days i.e., till the death of the victim and why plice have not taken steps during these three days to get the dying declaration recorded through a Magistrate. One more suspecting factor is that post-mortem is conducted by two Doctors and P.W.3 is one among them. The other Doctor who was examined as P.W.6 deposed that post-mortem report is not in his handwriting and it is prepared by P.W.3. Further, when the charge against the revision petitioner is for the offence under Sections 498-A & 306 IPC, prosecution has to place evidence attracting the ingredients of Sections 498-A & 306 IPC.
8. Section 498-A IPC reads as follows:-
“498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means —
(a) any wilful 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 related to her to meet such demand.”
9. There is absolutely no evidence of any kind attracting provisions of Section 498-A IPC. Even Ex.P3, dying declaration, do not disclose any material attracting ingredients of Section 498-A IPC.
10. For an offence under Section 306 IPC, there must be abetment to commit suicide. This Court in N. Ramesh v. State of A.P., relied on by revision petitioner, it was held as follows:-
“As could be seen from Ex.P-7 dying declaration, the appellant/accused, on seeing the deceased in flames, covered her with a blanket to extinguish flames and thereafter shifted her to hospital for treatment. Having regard to surrounding circumstances, I am of the view that the appellant/accused cannot be said to have abetted suicide of the deceased and in the sense that it cannot be regarded as having instigated her to commit suicide.”
11. To attract an offence under Section 306 IPC, there must be evidence to show that the accused by supplying or assisting or by procuring material for committing suicide said to have abetted the deceased to commit suicide, but here even in the dying declaration, there is no such material or allegation attracting ingredients of Section 306 IPC. Both trial Court and appellate Court have lost sight of all these aspects and simply accepted the evidence of P.W.3 and Ex.P3 for convicting the revision petitioner. On a scrutiny of the evidence on record and for the reasons stated above, I am of the view that both trial Court and appellate Court have committed grave error in appreciating the evidence and also in not noticing the practice and procedure i.e., in vogue for recording dying declarations.
12. For these reasons, I am of the view that the conviction recorded against the revision petitioner and sentence thereon is liable to be set aside.
13. Accordingly, revision is allowed by setting aside the conviction for the offences under Sections 498-A & 306 IPC and the accused is acquitted of the said charges. His bail bonds shall stand cancelled and the fine amount paid by him shall be refunded.
12. As a sequel, miscellaneous petitions, if any, pending in this Criminal Revision Case, shall stand disposed of.
JUSTICE S. RAVI KUMAR
Date:25.04.2014 mrb