(SUPREME COURT OF INDIA)
Nallam Veera Stayanandam and Others
Vs
Public Prosecutor, High Court of Andhra Pradesh
HON'BLE JUSTICE P. VENKATARAMA REDDI AND HON'BLE JUSTICE B. P. SINGH
24/02/2004
Appeal (Crl.) 920 of 1997
JUDGMENT
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 bail bonds 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. #