Important point
Where deceased named only mother-in-law in her dying declaration given to Magistrate as a person for whose harassment and cruelty she set herself on fire, second dying declaration recorded by police where in victim was stated to have named husband also, being inconsistent with first dying declaration, conviction of husband could not be based on such dying declaration.

Judgment

B.P. Singh, J.—This appeal by special leave is directed against the judgment and order of the High Court of Judicature at Andhra Pradesh at Hyderabad dated November 22, 1996 in Criminal Revision Case No. 195 of 1995 whereby the High Court while partly allowing the appeal and acquitting the appellant of the charge under Section 306 I.P.C, confirmed his conviction and sentence under Section 498-A I.P.C. on which count the appellant has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-.

2. The appellant Lella Srinivas Rao and his mother Lella Gangamamba were tried by the Assistant Sessions Judge, Chirala charged of the offences under Sections 498-A and 306 I.P.C. The case of the prosecution was that the appellant herein was married to the deceased Bhavani about three years before the date of occurrence which took place on 15.8.1990. The case of the prosecution was that the appellant as well as his mother (accused No.2) treated Bhavani (deceased) with such cruelty, and harassed her to such an extent, that she was forced to commit suicide at about 12.45 p.m. on 15.8.1990. She set fire to herself as well as her daughter who was about 1-1/2 years old as a result of which both of them succumbed to their injuries later on the same day. The trial court found them guilty of the offence under Section 306 I.P.C. and sentenced both the accused to undergo rigorous imprisonment for a period of seven years under Section 306 I.P.C. and three years rigorous imprisonment under Section 498-A I.P.C. Both the accused preferred Criminal Appeal No. 169 of 1992 which came to be disposed of by the Court of Session, Prakasam Division, Ongole who dismissed the appeal and upheld the convictions and sentences. The accused thereafter challenged their convictions and sentences before the High Court which set aside the conviction under Section 306 I.P.C. but upheld their conviction and sentence under Section 498-A I.P.C.

3. From the record it appears that both the accused preferred special leave petitions before this Court. The special leave petition of accused No.2, Lella Gangammamba was dismissed by order dated 28.4.1997 and notice was issued confined to the petition on behalf of the appellant herein, which was later admitted for hearing.

4. As noticed earlier, the deceased was married to the appellant on 24th January, 1988. It appears that some differences cropped up between them to which we shall refer later in this judgment. On the 15th August, 1990 the deceased Bhavani set fire to herself and her 1-1/2 years old daughter at about 12.45 p.m. She had closed the door of her room and after pouring kerosene oil on herself and her child set herself ablaze. When she cried in pain her neighbours came to her rescue, got the door opened, and put off the fire. She was taken to the Government Hospital, Chirala along with child. Intimation was sent by the hospital authorities to the Magistrate for recording the dying declaration of the deceased. On such request PW-13 the II Additional Munsif Magistrate, Chirala visited the hospital at 3.05 p.m. and recorded the dying declaration of Bhavani which was exhibited at the trial as Ex.P-18. The dying declaration was recorded by him between 3.30 p.m. and 3.40 p.m. The said dying declaration is in question answer form and was recorded in the presence of the treating physician who certified that Bhavani was conscious when the dying declaration was recorded. The Munsif Magistrate read over the contents to the deceased in the presence of the Doctor and on Bhavani admitting the statement to be correct, she affixed her thumb impression on the dying declaration.

5. In this dying declaration Bhavani (deceased) stated that due to unbearable harassment caused by her mother-in-law she had poured kerosene oil on her body and had set herself on fire at about 1.00 p.m. on that day. To a specific question she replied saying that none-else had set her on fire. It also appears that whil