Nallam
Veera Stayanandam & Ors Vs. The Public Prosecutor, High Court of A.P [2004]
Insc 114 (24 February
2004)
N Santosh Hegde & B P Singh. Santosh Hegde,
J.
The
appellants before us were charged of offences punishable under section 304B and
498A IPC and were sentenced to undergo RI for a period of 7 and 2 years
respectively by the by the Sessions Judge, East Godavari District at Rajahmundry,
Andhra Pradesh. Said conviction and sentence of the appellants came to be
confirmed by the High Court of Judicature, Andhra Pradesh at Hyderabad by the impugned judgment. Now they
are in appeal before us.
Prosecution
case necessary for disposal of this appeal is as follows:
The
first appellant before us is the son of appellant Nos.2 and 3 while appellant
No.2 is the husband of appellant No.3.
The
first appellant was married to one Aruna Kumari which took place on 18.5.1990.
It is the prosecution case that Aruna Kumari was the daughter of the sister of
A-1. Thus, in reality Aruna Kumari had married her own maternal uncle. It is
the further case of the prosecution that the appellants were constantly making
demand from the parents of Aruna Kumari which, inter alia, included 1/3rd share
in a house belonging to the parents of Aruna Kumari. Thus, the appellants were
constantly harassing said Aruna Kumari. The prosecution in support of its case
relating to harassment relied upon Ex. P-4 to P-6 letters written by Aruna Kumari
between 12th May and 5th
August, 1991.
Prosecution also relies upon a Panchayat Ex. P-8 which took place and an
agreement Ex. P-9 executed by the accused 1 and 2 undertaking to look after Aruna
Kumari properly and not to harass her. It is the further case of the
prosecution that on 12.7.1992 at about 3 p.m. deceased doused herself with kerosene and set herself afire due to
which she suffered severe burn injuries. She was then taken to Government Hospital, Kothapeta, where noticing her condition the doctor sent a
requisition to the Munsif Magistrate to make arrangements to record her dying
declaration. Consequent to this request the Munsif Magistrate, PW-13 proceeded
to the Government Hospital and recorded the dying declaration Ex. P- 28 at about 5.30 p.m. He states that before recording he asked the opinion
of the doctor PW-10 whether the patient was in a fit condition to make a
declaration and on being told that she was in a fit condition, he started
recording her declaration. He states that while recording the said statement,
he asked the Police and others attending on the patient to leave the room and he
recorded her statement in a question and answer form. A perusal of this
document Ex. P-28 shows that the deceased stated that she suffered the burn
injuries accidentally because of a stove burst while she was preparing tea.
There is nothing in this dying declaration to indicate even remotely that she
committed suicide.
Soon
after this dying declaration was recorded, PW-11 who was then working as a Head
Constable in Kothapeta Police Station, having received an intimation from the
hospital, proceeded to the hospital and recorded another statement of the
deceased marked as Ex. P-25. This statement also contains a certificate of
PW-10 as to the condition of the patient to make a declaration. As per this
dying declaration, the deceased stated that on being unable to bear the dowry
demand and harassment meted out by her husband and in-laws, she poured kerosene
on herself and set herself ablaze, consequent to which she suffered burn
injuries. From the record it is seen that Aruna Kumari died at about 7.30 p.m. on the same day. During the course of investigation
the prosecution examined nearly 14 witnesses out of whom PWs.1 to 5 and 7 speak
to the demand of dowry made by the appellants as also the harassment meted out
to the deceased. Prosecution has also produced Ex. P-4 to 7 -- letters written
by the deceased to her parents narrating the nature of dowry demand as also the
harassment. Ex. P-8 is a Memorandum drawn up by the Panchayatdars calling upon
the appellants to give an undertaking to treat the deceased properly.
Ex.
P-9 is an undertaking given by A-1 and A-2 to look after the deceased properly.
It is on the basis of the above evidence collected during the course of
investigation the appellants were charged for offences as stated above in the
Court of District & Sessions Judge, Rajahmundry who as per his judgment dated 30.3.1994 convicted all the
accused persons for offences punishable under sections 304B and 498A IPC. The
said conviction and sentence came to be confirmed by the High Court of
Judicature, Andhra Pradesh at Hyderabad by
the impugned judgment and against which the appellants herein preferred a SLP.
When the said petition came up before the Court on 26.11.1996, this Court
dismissed the petition of the first appellant herein while notice confined to
the petition of appellant Nos.2 and 3 alone was issued. However, subsequently,
by entertaining a review petition filed by the first appellant as per its order
dated 29.9.1997, this Court granted leave in regard to the petitions of all the
three appellants, hence, all the 3 appellants are now before us in this appeal.
In
this appeal, Mr. P S Narasimha, learned counsel appearing for the appellants,
submitted that both the courts below erred in rejecting the first dying
declaration Ex. P-28 on unsustainable grounds and further erred in placing
reliance on the subsequent dying declaration Ex. P-25 recorded by a Police
official which gave a different version. He also submitted that the courts
below erred in finding corroboration to the contents of the dying declaration
Ex. P-25 from the evidence of the prosecution witnesses. He submitted that a
dying declaration recorded by a Magistrate which is in conformity with the
requirements of law, should always be preferred to an extra- judicial dying
declaration made to a Police Officer and that too subsequent to the recording
of the first dying declaration.
Learned
counsel pointed out if the contents of Ex. P-28, the dying declaration made to
the Munsif Magistrate are unimpeachable and if the court is satisfied, reliance
can safely be placed on the contents of the said dying declaration. Any amount
of evidence to the contrary could not diminish the value of such dying
declaration. He submitted the fact that the deceased died of accidental burns
is not only spoken to by her in unequivocal terms, the same is also supported
by the entries made by the doctor, PW-10 in the information sent by him to the
Police as also in the accident register Ex. P-20 and 21 which were entries and
information made prior to Ex. P-28 which also shows that the deceased had
suffered accidental burns. He submitted that there was a dispute between the
families of the deceased and the appellants and all the witnesses who have
spoken about the harassment or demand for dowry are interested persons whose
evidence cannot be relied upon to discard the statement of the deceased herself
as to the cause of her death.
Mr. G.
Prabhakar, learned counsel appearing for the State, very strongly supported the
judgments of the two courts below and submitted that there is hardly any room
for interference with the well-considered judgments of the two courts below. He
submitted that there is no law which makes a dying declaration recorded by a
Police official either inadmissible or, in any way, lesser in evidentiary value.
It is his submission that courts will have to weigh the evidentiary value of
these two dying declarations on their merit and if there is contradiction
between the two, either reject both or choose one which is more acceptable for
its evidentiary value. In the instant case, he submitted that the evidence
produced by the prosecution shows that right from the beginning the appellants
have been making undue demand for dowry and have also been harassing the
deceased both physically and mentally which is amply evidenced by the
documentary evidence as well as the oral evidence produced by the prosecution.
In such a case a dying declaration which is in conformity with the said line of
evidence produced by the prosecution should be accepted instead of the one which
is contrary to other acceptable evidence produced in the case.
We
have heard learned counsel and also perused the records. It is true from the
evidence led by the prosecution it has been able to establish that the
appellants were demanding dowry which was a harassment to the deceased. It is
also true that the death of the deceased occurred within 7 years of the
marriage, therefore, a presumption under section 113B of the Evidence Act is
available to the prosecution, therefore, it is for the defence in this case to
discharge the onus and establish that the death of the deceased in all
probability did not occur because of suicide but was an accidental death.
It is
for the above purpose, learned counsel for the appellants has strongly relied
on the dying declaration Ex. P-28 which according to him, is free from all
blemish and is not surrounded by any suspicious circumstances. We are of the
opinion that if the contents of Ex. P-28 can be accepted as being true then all
other evidence led by the prosecution would not help the prosecution to
establish a case under section 304B IPC because of the fact that even a married
woman harassed by demand for dowry may meet with an accident and suffer a death
which is unrelated to such harassment.
Therefore,
it is for the defence in this case to satisfy the court that irrespective of
the prosecution case in regard to the dowry demand and harassment, the death of
the deceased has not occurred because of that and the same resulted from a
cause totally alien to such dowry demand or harassment. It is for this purpose
the appellants strongly place reliance on the contents of Ex. P-28, therefore,
we will have to now scrutinise the circumstances in which Ex. P-28 came into
existence and the truthfulness of the contents of the said document. It is the
prosecution case itself that on the fateful day at about 3'O clock, the
deceased suffered severe burn injuries and she was brought to the Government
hospital at Kothapeta. As per the evidence of PW-10 the doctor when she was
admitted to the hospital, he sent an intimation to the Police as per Ex. P-21
and also made an endorsement in Ex. P-22, the accident register.
In
both these documents, he had noted that the deceased suffered accidental burn
injuries due to stove burst. It is not the case of the prosecution that this
entry was made by the doctor at the instance of any one of the appellants. At
least no suggestion in this regard has been put to the doctor when he was in
the witness box. As a matter of fact, there is considerable doubt whether any
of the appellants was present at the time when the deceased was brought to the
hospital and was first seen by the doctor PW-10. On the contrary, according to
the doctor, a large number of relatives other than the appellants were present
at that point of time when the deceased was brought to the hospital, therefore,
it is reasonable to infer that the information recorded by the doctor in Ex.
P-21 and 22 is an information given to the doctor either by the victim herself
or by one of the relatives present there, who definitely were not the
appellants. From the evidence of this doctor, we notice that anticipating the
possible death he sent a message to the Munsif Magistrate to record a dying
declaration and the said Magistrate PW-13 came to the hospital immediately and
after making sure that all the relatives and others were sent out of the ward
and after putting appropriate questions to know the capacity of the victim to
make a statement and after obtaining necessary medical advice in this regard,
he recorded the dying declarations which is in question and answer format. It
is in this statement the deceased unequivocally stated that she suffered the
injuries accidentally while preparing tea. There has been no suggestion
whatsoever put to this witness when he was in the box to elicit anything which
would indicate that this statement of the deceased was either made under
influence from any source or was the statement of a person who was not in a
proper mental condition to make the statement. From the questions put by the Munsif
Magistrate, and from the answers given by the victim to the said questions as
recorded by the Munsif Magistrate we are satisfied that there is no reason for
us to come to any conclusion other than that this statement is made voluntarily
and must be reflecting the true state of facts. The trial court while
considering this dying declaration seems to have been carried away by doubting
the correctness and genuineness of this document because of other evidence led
by the prosecution thus, in our opinion, erroneously rejected this dying
declaration which is clear from the following finding of the trial court in
regard to Ex. P-28 : "Her statement made to the Magistrate which is at
Ex.P-28 has been demonstrated to be an incorrect statement of fact and it
appears that in the presence of the 3rd appellant, she made the statement that
from the burning stove her sari caught fire while she was preparing tea."
We
find absolutely no basis for the two reasons given by the trial court for
coming to the conclusion that the deceased's statement under Ex. P-28 is an
incorrect statement. The court came to the conclusion that this statement must
have been made in the presence of the 3rd appellant, a fact quite contrary to
the evidence of PWs.10 and 13. On the contrary, the Munsif Magistrate
specifically states that he asked everyone present and who were unconnected
with the recording of the statement, to leave the room This has not been
challenged in the cross- examination. Therefore, in our opinion, this part of
the foundation on which the trial court rejected Ex. P-24 is non- existent. It
is also seen from the above extracted part of the judgment of the trial court
that it held that it "has been demonstrated to be an incorrect statement
of fact". For this also, we find no basis. If the trial court was making
the second dying declaration as the basis to reject the first dying declaration
as incorrect then also in our opinion, the trial court has erred because in the
case of multiple dying declarations each dying declaration will have to be
considered independently on its own merit as to its evidentiary value and one
cannot be rejected because of the contents of the other. In cases where there are
more than one dying declaration, it is the duty of the court to consider each
of them in its correct perspective and satisfy itself which one of them
reflects the true state of affairs.
The
trial court in its turn while considering Ex. P-28 observed thus : "I do
not want to give much importance to the dying declaration recorded by PW.13.
The deceased out of confusion or live (sic) and affection towards her husband
and in-laws, who are no other than the grand parents might have stated
so." With respect to the learned Judge, this finding in regard to Ex.P-28
is based on inferences not based on record.
We
have already noticed that none of the accused was present at the time Ex. P-28
was recorded. That apart, we fail to understand if the finding of the trial
court that Ex. P-28 came into existence because of love and affection towards
her husband and in-laws, is correct then why did the deceased about 10 minutes
later implicate the very same persons in Ex. P-25 of having led her to commit
suicide. In our opinion, unless there is material to show that the statement as
per Ex. P-28 is given either under pressure of the accused or is a statement
made when the victim was not in a proper state of mind or some such valid
reason, the same cannot be rejected merely because it helps the defence. We
have already observed even a harassed wife can get burnt accidentally in which
case her death cannot be attributed to harassment so as to attract section 304B
IPC.
Having
noticed the findings of the two courts below in regard to Ex. P-25, we will now
consider the dying declaration recorded by PW-11 as per Ex. P-25. This
statement came into existence about 10 minutes after Ex. P-28 was recorded by
the Munsif Magistrate. We have already expressed our doubt as to the need for
recording this statement when the Munsif Magistrate on a request made by the
doctor had already recorded a dying declaration as per Ex. P-28. It has come on
record that when PW-11 recorded this statement, he did not take the precautions
which the Munsif Magistrate took in sending the relatives of the victim out of
the room. He also did not put preliminary questions to find out whether the
patient was in a fit state of mind to make the said statement. It is to be
noted here that the doctor in Ex. P-25 only states that the patient is
conscious. In the said statement, of course, the victim had stated that she set
fire to herself being unable to bear the harassment meted out to her by her
husband and in-laws. This part of the statement in Ex. P-25 directly
contradicts has earlier statement made to the Munsif Magistrate as per Ex.
P-28. Ex. P-28 is a document which exculpates the accused person of an offence
under section 304B IPC. There is no reason to disbelieve the contents of Ex.
P-28 merely because it is not in conformity with the prosecution case as to the
harassment meted out to the victim. The courts will have to examine the
evidentiary value of Ex. P-28 on its own merit and unless there is material to
show that the statement made in P-28 is inherently improbable and the same was
made by the victim either under pressure from outside source or because of her
physical and mental condition, the same cannot be rejected as untrue or
unreliable. The Magistrate by the preliminary questions had satisfied himself
that the victim was in a fit condition to make the statement. In this
background, we find no reason why Ex. P- 25 which was recorded by a Head
Constable without following the proper procedure should be given preference.
The courts below, in our opinion, have fallen in error in rejecting Ex. P-28
and preferring to place reliance on Ex. P-25; more so in the background of the
fact that no suggestion whatsoever has been made either to the Munsif
Magistrate or to the doctor as to the correctness of Ex. P-28. Per contra, a
specific suggestion has been made to PW-11 the Head Constable that he had
implicated the accused persons in Ex. P-25 at the instance of the relatives of
the deceased and her thumb impression was taken subsequently. Of course, he has
denied this suggestion. Be that as it may, the fact that Ex. P-25 came into existence
a few minutes after Ex. P-28 and was recorded without taking necessary
precautions by a Police Officer, we think it more appropriate to place reliance
on Ex. P-28 rather than on Ex. P- 25. If that be so, the death of the deceased
will have to be related to her having suffered burn injuries accidentally and
succumbed to the same. We are aware that since death of Aruna Kumari in this
case occurred within 3 years of her marriage, a presumption under section 113B
of the Evidence Act is available to the prosecution, but since we have accepted
the contents of Ex. P-28 as true, that presumption stands rebutted by the
contents of Ex. P-28. In such a case unless the prosecution is able to
establish that the cause of death was not accidental by evidence other than the
dying declarations, the prosecution case under section 304B IPC as against the
appellants must fail.
The
above finding of ours, however, will not exonerate the appellants of the charge
under section 498A. We have noticed from the evidence of PWs.1 to 5 and 7 as
also from Ex. P-4 to 9 that the prosecution has established frequent demands
for dowry as also harassment of the victim because of the non- payment of
dowry. In this regard, we are in agreement with the findings of the two courts
below, though we have come to the conclusion that the same finding would not
assist the prosecution to base a conviction under section 304B. In our opinion
the material produced by the prosecution in regard to the demand for dowry and
harassment is sufficient to base a conviction under section 498A IPC. Hence
while allowing this appeal and setting aside the conviction and sentence
imposed by the two courts below for an offence punishable under section 304-B
IPC, we confirm the sentence imposed by the courts below for an offence
punishable under section 498A IPC.
We are
told appellants are on bail. Their bailbonds shall stand cancelled. They shall
serve out the balance of sentence, if need be. Remission for the sentence
already served, if any, shall be given. The appeal is partly allowed.
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