Andhra HC (Pre-Telangana)
C. Nehru Babu vs State Of A.P., Rep., By The Public ... on 13 August, 2001
Equivalent citations: 2001(2)ALT(CRI)376, I(2002)DMC625
JUDGMENT V. Eswaraiah, J.
1. The sole accused filed this Criminal Appeal against the judgment dated 28/12/1995 made in S.C.No.123/1995 on the file of the Principal Assistant Sessions Judge, Tirupathi, convicting him under Section 306 Indian Penal Code (for short 'IPC') and sentencing him to undergo Rigorous Imprisonment for 7 years and also to pay a fine of Rs.500/-, in default, Simple Imprisonment for six months.
2. The case of the prosecution is that the deceased Laxmi Kanthamma aged 22 years originally a native of Kothamarrimakulapalle h/o Palamanda was given in marriage to the accused 2 1/2 years prior to the date of the incident i.e., 01/09/1993 and the deceased and the accused both lived amicably for some time. 3 months prior to 01/09/1993, the accused has taken a rented house in the upstairs in Door No.19-7-90/H of Yellappareddy quarters, Rayalacheruvu Road, Tirupathi, belonging to de facto complainant (PW-1). It is further alleged that the accused was pestering her humiliating her for issueless. On 31/08/1993 morning the accused went to his native place of D. Venganapalle near Chittoor along with the deceased. On 01/09/1993 at about 9-00 a.m. in the rear portion of the 1st floor of the house bearing D.No.19-7-90/H, Yellappa Reddy Quarters the deceased - Laxmi Kanthamma has committed suicide by pouring kerosene and set her ablaze and on witnessing the smoke the owner of the house and others entered into the house and took the deceased to the hospital and while undergoing treatment dying declaration was recorded by III Additional Munsif Magistrate, Tirupathi in the presence of the duty Doctor in which she stated that in the early hours of Tuesday her husband dragged and kickedher by uttering "NEEVU SAMSARNIKI PANIKIRAVU" as she has no issues so she poured kerosene on herself and set her ablaze. The owner of the house gave a complaint (Ex.P-1). Inquest was held over the dead body and thereafter the dead body was sent for post mortem. Thereafter, the case was interrogated and charge sheet has been filed against the accused stating that the deceased committed suicide on 01/09/1993 in the rear portion of the 1st floor of Door No.19-7-90/H, Yellappareddy quarters, Rayalacheruvu Road, Tirupathi. As the accused was pestering and humiliating her as issueless, and therefore, she has committed suicide, and therefore, the accused is punishable under Section 306 IPC. The accused denied the same.
3. The owner of the house is examined as PW-1 and neighbour of her house is examined as PW-2. They have stated that they took out the deceased from the room and laid on the pial and got her admitted in the Hospital for treatment and they do not know the reason for committing suicide. PW-3 is the father of the deceased stated that the marriage of the deceased with the accused took place 2 1/2 years ago and the accused informed him on 01/09/1993 at about 3-00 p.m. stating that the deceased went away somewhere without informing him and immediately 5 minutes thereafter the elder brother of his son-in-law informed him that the deceased was inflicted with burns at Tirupathi and she was taken to the hospital and thereafter the parents of the deceased rushed to the hospital. They reached the hospital by 6.00 p.m. by that time the inquest report and post mortem was also over. But in the cross-examination, he has stated that the marriage was performed 3 months prior to the incident only and she made an attempt previously to commit suicide when someone beat her and during her childhood also she had made an attempt to commit suicide. PW-4 is the witness for the inquest report. He turned hostile. PW-5 is the doctor who conducted the post mortem on the dead body and in whose presence the Magistrate recorded the dying declaration. PW-6 is the Mandal Revenue Officer. PW-8 is the Magistrate who recorded the dying declaration (Ex.P-12) in the presence of the doctor whose signature is marked as Ex.P-13 and P-14. PW-9 is the Head Constable who registered the case immediately and who has recorded the statements under Section 161 Cr.P.C.
4. After completion of the prosecution evidence, on the basis of the incriminating evidence available against the accused, he was examined under Section 313 Cr.P.C. The accused denied all those circumstances and got examined 2 witnesses DW-1 and 2 and got marked Ex.B-1. DW-1 is the father of the accused. DW-2 is a retired teacher stated that the deceased died 3 months after the marriage. It appears that the accused adduced evidence to disprove the allegation that the question of harassing the deceased for not having the children does not arise within three months from the date of the marriage.
4. The entire case rests on the dying declaration(Ex.P-12). As far as the oral evidence of other witnesses is concerned, the father of the deceased himself stated in the chief examination that 2 1/2 years prior to the incident, he performed the marriage of the deceased with the accused but whereas in the cross-examination he stated that only 3 months after the marriage, the deceased committed suicide. In chief examination he has stated that the accused came to him and informed him at about 3-00 p.m. on 01/09/1993 that his daughter went away some where without informing him. No doubt, neither the owner of the house nor the neighbours or parents of the deceased said about the cruelty nor harassment or any abatement meted out by the accused. There is no other evidence except the dying declaration.
5. The incident took place at about 9-00 a.m. on 01/09/1993 when the owner of the house (PW-1) along with others took the deceased to the hospital and immediately thereafter a requisition (Ex.P-11) was sent to the Munsif Magistrate to record the dying declaration (Ex.P-12). The requisition was received by 10-30 a.m. The Magistrate rushed to the hospital at 10-45 a.m. and identified the patient with the assistance of the duty Doctor, B. Koteswara Reddy and put certain questions to the patient to find out whether she was conscious and in fit state of mind to give dying declaration or not. When the Magistrate asked her name, husband name, place of residence, the deceased had answered all the questions. She also stated that her marriage took place about 3 years back. She further stated that she was in the Rui Hospital, Tirupathi. Then the Magistrate gave his identity and informed her that he came over there to record her statement and then he made an endorsement that he was satisfied that the patient is in conscious and is in a fit state of mind to give dying declaration. The duty Doctor also certified before recording the dying declaration with the following words:
"Patient is conscious and coherent to give declaration."
6. After the aforesaid certificate, the doctor has signed and his signature is marked as Ex.P-13. The dying declaration is recorded in Telugu as stated by the deceased, the English translation of the said extract is as follows:
" What happened?
Tuesday in the early morning my husband dragged me and beat with his legs and scolded by saying that I am not fit for marital life as I am having no children he scolded me previously in the same manner. Thereafter, I have gone to my mother-in-law's house and came back. My husband stayed in Chittoor only. I wore new saree and poured kerosene on myself and set fire. Thereafter, I was brought to the hospital and admitted. As I am not having children, frequently he scolds me and beat me. There is nothing to tell."
7. After recording the said declaration, the Doctor made an endorsement stating that the patient is conscious through out the statement of the recording and the learned Magistrate also certified stating that the patient is in conscious and fit state of mind while she was giving declaration. While recording the statement, no one was present at the patient except himself and the duty Doctor - B. Koteswra Reddy. He further stated that only on his being satisfied that the patient is giving the statement voluntarily, the thumb impression of the deceased was taken as all the fingers of the declarant totally burnt. It appears that after half an hour thereafter she was declared as dead.
8. The charge in this case is under Section 306 IPC. The question that arises for consideration is whether the aforesaid accusation attracts the offence under Section 306 IPC or not. Under Section 306 IPC, if any person commits suicide, whoever abets to commission of such suicide, shall be punished with imprisonment of either description for a term, which may extend to ten years, and shall also be liable to fine. The abetment is defined under Section 107 IPC. Abetting of any person means a person abets the doing of a thing, which instigates any person to do that thing; or intentionally aids, by any act or illegal omission, the doing of that thing. Here 'doing of thing' is committing suicide. It is not the case of the prosecution that the husband has instigated the deceased to commit suicide but the deceased herself committed suicide and there is no aiding on the part of the husband to commit suicide by the deceased. If there is no allegation of abetting by the accused to commit suicide, the question of punishing him under Section 306 IPC does not arise. Section 113-A of the Indian Evidence Act has also no application in this case as the accused did not abet her to commit suicide.
9. The question here is whether the husband has abetted the commission of suicide by the woman or not? Admittedly, there is no abetment on the part of her husband to commit suicide and merely because the deceased committed suicide within a period of seven years from the date of her marriage, the legal presumption cannot be drawn that the deceased has committed suicide by reason of the abetment by her husband. In this case, except, the statement of the deceased, with regard to the cruelty meted out by her husband, there is no other evidence. The mere cruelty may not be a thing of abetting suicide as contemplated under Section 107 IPC, and therefore, I am of the view that Section 306 IPC has no application and accordingly the accused is liable to be acquitted under Section 306 IPC.
10. The next question that arises for consideration is whether there was any cruelty on the part of the accused as contemplated under Section 498-A IPC. Under Section 498-A, if the husband of the woman subjects such a woman to cruelty, shall be punished with imprisonment. In the explanation, the cruelty is explained. Cruelty means any willful 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. The deceased woman stated that one-day prior to the incident i.e., on 31/08/1993 (Tuesday)the accused dragged her and beat with his legs stating that she is not fit for marital life. As she was not having any children, he scolded her in the same manner. The said statement clearly goes to show that the accused husband subjected her to cruelty. By the said reason of scolding and kicking her in the previous night, she suffered mentally and therefore, she committed suicide. The charge framed against him is enough to punish him under Section 498-A for his cruelty forcing the deceased to commit suicide. Accordingly, the appellant is found guilty under Section 498-A IPC and the evidence available on record i.e., the dying declaration of the deceased is enough to come to the conclusion without any hesitation that the accused has subjected his deceased wife to cruelty and I accordingly, hold that the accused is guilty of the offence under Section 498-A IPC
11. In so far as the sentence is concerned, the accused has already undergone imprisonment for about 2 months and the sentence is restricted for imprisonment already undergone by the accused.
Accordingly, the Criminal Appeal is allowed in part.