Galaveli Venkateswara Rao (A.1) and Another vs State of A.P.

Motilal B. Naik, J.—A. 1 and A. 2 in Sessions Case No. 218 of 1994 on the file of the Court of the Additional Sessions Judge, West Godavari, are the appellants before us. Originally three accused were tried by the Additional Sessions Judge i.e. A. 1 and A. 2 were tried for the offence punishable u/s 498-A, I.P.C. and A. 1 and A. 3 were tried for the offence punishable u/s 302 r/w. 34 I.P.C. The trial Court after full trial and considering the entire material on record found A. guilty and A. 2 not guilty of the offence punishable u/s 498-A, I.P.C. Accordingly, A. 1 was convicted for the said offence and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/- in default to suffer simple imprisonment for a period of one month and acquitted A.2 for the said offence. Further, the trial Court found A. 1 and A.2 guilty and A.3 not guilty of the offence punishable u/s 302 I.P.C. Accordingly, A. 1 and A.2 were convicted and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 2,000/- each in default to suffer simple imprisonment for two months and acquitted A.3 of the said offence.

The gravamen of the charge is that A.1 and A.2 subjected the deceased-Hemalatha (wife of A. 1) to harassment for bringing dowry to the tune of Rs. 10,000/- from her mother. In furtherance of their cruel act, on 18-10-1993 at about 3 p.m., they caused the death of the deceased by pouring kerosene and setting fire.

The case of the prosecution is that A. 1 and A.3 are brothers and A.2 is their mother. The deceased-Hemalatha is the wife of A. 1 and PW. 1 is the mother of the deceased. All the accused belong to Raninagar, Tangellamudi, Eluru, whereas PW 1 and the deceased belong to Somavarappadu village. The marriage of the deceased with A. 1 was performed in the year 1991 and out of their wedlock a female child was born. After the birth of the said child, it is alleged that A.1 used to harass the deceased for bringing additional dowry of Rs. 10,000/- from her mother or to put the house property in his name. As the deceased did not accept his proposal, he along with other accused tortured the deceased physically and mentally and necked her out of the house and the deceased went to her parent''s house and informed about the same to her mother (PW 1). PW1 gave a complaint in II Town Police Station, Eluru on 15 -10-93 and requested the Sub-Inspector to admonish the accused. Accordingly, the Sub-Inspector examined the accused, PW 1 and the deceased and reprimanded the accused and directed them to take the deceased to their house and live peacefully. Accordingly, the deceased was sent with the accused on the night of 17-10-1993 and PW 1 went to her village on that night to bring the clothes of the deceased. On 18-10-1993 in the morning A. 1 beat the deceased on the pretext that the Police called them to the Police Station at her instance. A.2, the mother-in-law of the deceased, scolded the deceased in vulgar language. In the afternoon A.1 beat the deceased scolding her as bitch. While so, on the same day at about 3 p.m., when the deceased was sleeping A.1 woke her up scolding her a bitch saying "you are still alive" and then A.2 poured kerosene, A.1 lit the fire with a match stick. When PW1 tried to enter the house, A.3 resisted her and threatened with dire consequences. Subsequently, the husband of the deceased (A.1) removed the deceased to the Government Hospital, Eluru, in a rickshaw. On the same day on receiving Ex. P. 9 intimation, the Assistant Sub-Inspector of Police (PW 13) rushed to the Government Hospital and recorded the statement of the deceased under Ex. P. 14 and on the basis of the same a case in Crime No. 342/ 93 was registered under Sub-section 307 and 326 I.P.C. Later, on receiving the death intimation, the Section of law was altered and revised FIRs, were issued. On 18-10-1993 at about 7.45 p.m. the Inspector of Police (PW 15) proceeded to Government Hospital and recorded the statement of PWs 1 and 6. On 19-10-1993 at about 7 a.m. P.W. 15 prepared rough sketch of the scene of offence in the presence of PW 10 and another, which was marked as Ex. P. 17 and recovered M. Os. 1 to 4 from the scene of offence under Ex. P. 11. On 19-10-1993 PW 11 (MRO), conducted inquest over the dead body of the deceased and prepared Ex. P. 12 inquest report. On 19-10-1993 at 2 p.m., PW 9 (Civil Assistant Surgeon) conducted autopsy over the dead body of the deceased and issued Ex. P. 10 post-mortem certificate opining that the deceased died due to extensive burns. On 25-10-1993 PW 15 arrested all the accused and sent them to judicial custody and after completion of investigation he filed the charge sheet.

To prove its case, the prosecution examined PWs. 1 to 16 and got marked Exs. P. 1 to P. 25 and MOs. 1 to 4. No oral or documentary evidence was adduced on behalf of the accused. After closure of the prosecution evidence, the accused were examined u/s 313, Cr. P.C. However, they pleaded not guilty.

Though P. Ws. 1 to 7 turned hostile to the prosecution, the learned Sessions Judge relying upon Ex. P. 14 statement of the deceased, recorded by PW 13, convicted and sentenced A.1 and A.2 as stated supra. Aggrieved by the said order of conviction, A.1 and A.2 have preferred this appeal.

At the outset it is submitted by Sri C. Padmanabha Reddy, learned senior counsel for the appellants, that the conviction of the appellants by the trial Court is solely based on the statement of the deceased recorded by PW 13 under Ex. P. 14. The learned counsel stated that as held by the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, and also a Division Bench of this Court in the case of Thota Panduranga Rao v. State of A. P. (1988) 1 Andh LD (Cri) 641 that when the conviction is to be sustained only on the basis of the statement recorded from the deceased, the incriminating material in the said statement has to be put to the accused and if the incriminating material found in the statement is not put to the accused, the conviction on the basis of the said statement cannot be sustained. The counsel further stated that as held by the Supreme Court in Sharad''s case (supra) which was followed by a Division Bench of this Court in Thota Panduranga Rao''s case (supra), such an evidence which has been used against the accused for convicting them, has to be eschewed from consideration; with the result, the conviction of the appellants, which is based solely on such evidence cannot be sustained and this is a case for acquitting the accused-appellants.

The learned Public Prosecutor on the contrary justified the conviction of the appellants by contending that in the evidence of PW 13 he has categorically stated that he recorded the statement of the deceased under Ex. P. 14 and that being the factual position, the ratio laid down by the Supreme Court in Sharad''s case (1984 Cri LJ 1738) (supra) which was followed by this Court in Thota Pandurangarao''s case (1998 (1) Andh LD (Cri) 641) (supra) cannot be made applicable to the present set of circumstances.

We have considered the submissions made by both the counsel. Prima facie we are of the view, as held by the Supreme Court in Sharad''s case which was followed by a Division Bench of this Court in Thota Panduranga Rao''s case of which one of us - Dr. Motilal B. Naik - is a Member, that when Ex. P. 14 statement of the deceased, which is the sole basis for convicting'' the appellants, was not put to them in 313, Cr. P.C. examination, the conviction imposed on them cannot be sustained and such incriminating material, which is not put to the appellant-accused, has to be eschewed from consideration.

Admittedly, in this case, the other evidence available on behalf of the prosecution has not supported the version of the prosecution. In fact PW 1, who is the mother of the deceased, has not supported the case, of the prosecution. The only evidence which is taken note of by the Sessions Court is the evidence of PW 13 with reference to Ex. P. 14. From a perusal of Ex. P. 14 it is revealed that the deceased made a statement that A. 1 and A. 2 accused her by calling her as "bitch" and her mother-in-law (A.2) poured kerosene on her and A. 1 lit fire with a match stick. It is also revealed that A.1 took the deceased in a rickshaw to Government Hospital, Eluru and joined her in the Hospital. It is further revealed that her mother (PW1) came there in the mean time and noticed her with burning injuries. This piece of evidence, which is sought to be relied upon for convicting the appellants herein, has not found place in the examination of the accused u/s 313, Cr. P.C. which is a basis, requiring the explanation of the accused on this aspect. Question No. 5 framed by the trial Court on the evidence of PW 13, who is the author of Ex. P. 14, reads as follows :-

Q. No. 5 :- PW 13 deposed that on 18-10-1993 at 5.45 p.m. he received Ex. P. 9 hospital intimation about the admission of G. Hemalatha in the Government Head Quarters Hospital, Eluru, with burns and that immediately he proceeded to the hospital and recorded the statement of G. Hemalatha as per Ex. P. 14 in the presence of the medical officer and that the doctor certified about the condition of the patient on Ex. P. 14 and that the patient was in a position to give the statement and was conscious and that Hemalatha gave the contents of Ex. P. 14 to him and that after record-ing the same he read over the contents of the same to her and obtained thumb impression of her on Ex. P. 14 and that he handed over Ex. P. 14 to the Sub-Inspector of Police in the Police Station. What do you say?

Ans :- False.

A reading of Q. No. 5 would disclose that incriminating statement made by the deceased against the appellant-accused, has not been put to them requiring them to offer an explanation in that regard. As held by the Supreme Court in Sharad''s case (1984 Cri LJ 1738) (supra) which was later followed by a Division Bench of this Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, , if such an incriminating material is not put to the appellant-accused u/s 313, Cr. P.C. examination, the entire statement has to be eschewed from consideration.

In view of the law laid down by the Supreme Court and a Division Bench of this Court in the decisions cited supra, we say that the inability of the prosecution to put the said incriminating statement to the appellant-accused in 313, Cr. P.C. examination shall vitiate the conviction sought by the prosecution. In this case the only material available for the trial Court to convict the appellants is Ex. P. 14 statement, but it has not been put to them in Section 313, Cr. P.C. examination. As stated supra, the non-examination of the appellant-accused on this incriminating evidence available under Ex. P. 14 is fatal to the prosecution case as the appellant-accused did not have any chance to explain the circumstance. On this ground alone we set aside the convictions and sentences imposed on the appellants by the trial Court.

In the result, the Criminal Appeal is allowed and the convictions and sentences recorded against A. 1 for the offence punishable u/s 498-A, I.P.C. and against A.1 and A.2 for the offence punishable u/s 302, I.P.C. are set aside. Appellants 1 and 2 shall be set at liberty forthwith if they are not required in any other case. The fine imposed by the trial Court, if paid, shall be refunded to them.