Andhra HC (Pre-Telangana)
Public Prosecutor, High Court Of Andhra ... vs Mohd. Hoshan And Anr. on 18 April, 1996
Equivalent citations: 1996(2)ALD(CRI)104, 1996(2)ALT(CRI)326, 1996CRILJ2834, II(1996)DMC150
JUDGMENT
1. The State has preferred this appeal against the Order of acquittal recorded by the II Additional Metropolitan Sessions Judge, Hyderabad in Sessions Case No. 219/88 whereby the respondents have been acquitted of the charges levelled against them under Sections 498-A, 306 and 304-B of the Penal Code.
2. Smt. Razwana Parveen, daughter of PWs. 4 and 5 and sister of PW-3 was married to the 1st respondent on 26-4-1987. She died on 12-3-1988 in the Osmania General Hospital, Hyderabad, due to burn injuries. It is alleged by the prosecution that on 9-3-1988 at about 9.30 p.m. Razwana Parveen committed suicide because of cruel behaviour of the respondents after her marriage. PW-4 gave 3 tolas of gold and 40 tolas of silver and other articles at the time of marriage of her daughter, Razwana Parveen with the 1st respondent. She stayed about 8 days in her husband's house after the marriage and then she was sent back to her parents' house. She was sent to her husband's house, but he sent her back again after 10 to 12 days. During her stay in her husband's house, both the respondents who are mother and son used to demand Rs. 14,000/- for rchasing scooter for the 1st respondent and used to find faults with her. They used to taunt her and used to scold her on one pretext or the other. The 1st respondent accused was pursuaded to take the deceased Razwana Parveen to stay with him. But the attitude of the respondents did not change and they continued practising cruelty on her. It is alleged that due to the aforesaid conduct and mis-behaviour of the respondents, Razwana Parveen was disgusted with her married life and she sprinkled kerosene oil on her body and set it to fire. She was admitted in the Osmania Hospital on 9-3-1988 at about 10.30 p.m. where at about 1.20 a.m. on 10-3-1988, the Head Constable, Khaza Yousufuddin, since dead, recorded her statement Ex. P-12 and on the basis of the statement, registered a first information report Ex. P-13. On 10-3-1988 at about 2.45 a.m. Magistrate Sri V. Surender Rao recorded the dying declaration of Razwana Parveen which is at Ex. P-2. The injured Razwana Parveen succumbed to the burn injuries on 13-3-1988. The inquest report was prepared and the Medical Officer, PW-13, conducted the post-mortem vide his report Ex. P-14. After usual investigation, both the respondents were prosecuted under Sections 498-A, 304-B and 306 of the Penal Code.
3. The Trial Judge framed charges under Sections 498-A, 304-B and 306 of the Penal Code and when questioned the respondents abjured their guilt.
4. The Trial Judge on assessment of evidence on record reached the conclusion that the prosecution has failed to establish the guilt of the respondents beyond reasonable doubt and, therefore, acquitted the respondents of the charges levelled against them.
5. Feeling aggrieved by the judgment of acquittal, the State has preferred this appeal.
6. It has been contended by the Learned Public Prosecutor on behalf of the appellant that the Trial Judge has not appreciated the evidence on record correctly. The Trial Court has wrongly rejected the dying declaration recorded by the Magistrate which is Ex. P-2, particularly when it was attested by the Doctor on duty, PW-11. There is overwhelming evidence on record regarding the demand of dowry by the respondents as also regardng the mal-treatment given by them to the deceased Razwana Parveen.
7. It is a matter of record that the Advocate of the respondents Sri Nanda Kumar Singh did not appear on the date of hearing of the appeal. Therefore, fresh notices issued to the respondents and in answer to that, Mr. Adam Malik, Advocate, made appearance on behalf of the respondents. But, he also absented himself during the final hearing of the appeal though it was adjourned thrice.
8. From the evidence of PWs. 3, 4 and 5, it is established that Razwana Parveen was married to the 1st respondent on 26-4-1987 and after her marriage she went and resided with the respondents for about 8 years. She was visiting her parents house and staying there. She committed suicide by pouring kerosene oil on her person and setting it to fire in the house of the respondents. It is also established from their evidence that during her married life, she mostly stayed with her parents and lived with the respondents for about one and half months only and that too for a period of 10 to 12 days at a time. From the evidence of the Medical Officer, PW-11 and the Medical Officer, PW-13, it is established that Razwana Parveen died due to shock that had arisen due to severe burn injuries suffered by her. The aforesaid facts are not challenged by the respondents during the cross-examination of these witnesses.
9. I get from the evidence of PWs. 3, 4 and 5 that during her visits to their house, the deceased used to tell them that there was a demand of dowry of Rs. 14,000/- for purchasing scooter for the 1st respondent. The deceased used to tell them that the accused persons always found fault with her cooking and on some pretext or the other they used to taunt her and scold her. The 2nd accused used to make false allegations against her to the 1st accused. They had convened a caste panchayat wherein the caste elders had advised the 1st accused to keep his wife Razwana Parveen properly, but the respondents did not mend themselves. They continuously tried to patch up the differences, but the respondents continued practising cruelty on Razwana Parveen. Their statement is corroborated on material particulars by the evidence of PWs. 6 and 7.
10. It is pertinent to note that Mohd. Arif Mansoori, PW-3, is the son of Mohd. Allauddin Mansoori, PW-4, and the caste elder Shaik Bahadur, PW-7, have not stated in their respective statements made to the police during investigation that Razwana Parveen had told them that her husband was asking Rs. 14,000/- for purchasing a motor cycle. PWs. 3 and 4 have not stated in the case diary statements that Rs. 50,000/- to Rs. 60,000/- we spent on the marriage of Razwana Parveen and gold and silver and other articles were presented to the accused persons during the marriage of Razwana Parveen with the 1st respondent. These omissions amount to material contradictions which impair the testimonies regarding the demand of dowry of Rs. 14,000/- by the accused persons from PW-4 for purchasing scooter or motor-cycle. It is also noteworthy that there is no whisper in the dying declaration Ex. P-2 recorded by the Magistrate, PW-1, regarding the demand of dowry of Rs. 14,000/- for purchasing scooter by the respondents.
11. For the foregoing reasons, the Learned Trial Judge has not placed any reliance, and rightly so, on the evidence of PWs. 3, 4, 5, 6 and 7 that the respondents had demanded dowry of Rs. 14,000/- for purchasing scooter from PW-4. PW-3 has testified that Razwana Parveen used to tell him that the respondents were not satisfied with her and they used to allege that she was ugly. They used to tease her on one pretext or the other. They also used to say that she did not cook food properly. His statement is corroborated on material facts by the evidence of PWs. 4 and 5, PWs. 6 and 7 have stated in one voice that in the caste panchayat PW-4 complained about the mis-behaviour of the respondents. He also complained about the mal-treatment given to his daughter Razwana Parveen. These witnesses then talked with the 1st respondent and his father and advised them that it was not proper to ill-treat Razwana Parveen. They asked both the respondents to keep Razwana Parveen properly, but all their attempts failed. They were subjected to the test of cross-examination, but nothing material could be brought out which could shake their testimony.
12. In Ugar Ahir v. State of Bihar, 1965 (1) Cri LJ 256, it is held : at Page 258; of Cri LJ.
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
13. True, that a part of the statement of PWs. 3 to 7 regarding the demand of dowry has not been believed, but it by itself is not a ground to reject their testimony in wholesale. Simply because they have not been believed on one point, their evidence which remains unshaken during cross-examination regarding the cruelty practised by the respondents on the deceased Razwana Parveen cannot be rejected. Thus, from their evidence, it is established that both the respondents used to find faults with Razwana Parveen and used to tease her and scold her. They were not satisfied with Razwana Parveen because she was not good looking and, therefore, they used to send her to her parents house. The Learned Lower Court in Para 25 of its judgment has found that PWs. 4 and 5 and the caste elders like PWs. 6 and 7 prevailed upon the accused persons and forced them to take the deceased to their house. It they were actually harassing or subjecting the deceased to cruelty, they would have not sent the deceased to her parents house. This reasoning appears to be wholly incorrect because for an ordinary woman in the Indian set up, her house is the house of her husband and every Indian parent wants that her daughter should stay happily with her husband. Therefore, the attempt of PWs.-4 and 5 in pursuading the respondents and taking the help of PWs. 6 and 7 to insist the respondents to keep the deceased Razwana Parveen in their house properly is not at all unusual or unnatural. Often sending Razwana Parveen to her parents house and not keeping with them by itself/shows cruelty on their part. They practised cruelty on her so that she should go and live with her parents. Therefore, the reasoning of the Lower Court that if the respondents wanted to practise cruelty on Razwana Parveen, they would have kept her with them, is unreasonable and not acceptable.
14. The Trial Court has rejected the statement of Razwana Parveen recorded by the deceased Head Constable. PW-12, on the ground that it contained exaggeration so far as the demand of dowry is concerned because in the dying declaration Ex. P-2 recorded by the Magistrate, PW-1. There is no allegation regarding the dowry. This statement has also been rejected on the ground that from the evidence of prosecution witnesses it appeared that Razwana Parveen was unconscious at the relevant time. This statement is not certified by the Doctor on duty that Razwana Parveen was in a fit state of mind to make a declaration. The rejection of the dying declaration Ex. P-12 by the Learned Judge on the aforesaid reasons does not suffer from any infirmity and, therefore, the statement Ex. P-12 deserves to be excluded from being considered.
15. Sri V. Surnder Rao, PW-1, who is a Magistrate has testified that on 10-3-1988 at about 2.45 a.m. he started recording the dying declaration of Razwana Parveen and finished it at 3.15 a.m. The dying declaration is at Ex.P. 2. After recording her statement, he had certified and had signed it. He had also taken the endorsement of the Doctor on duty that Razwana Parveen was in a fit state of mind to make a statement. Razwana Parveen had made the statement in question-answer form in Urdu and the Magistrate had translated the version and recorded the declaration in English. After recording her statement, he again explained the statement in Hindi to Razwana Parveen who admitted its correctness. Thereafter, he took the thumb impression of Razwana Parveen on her declaration Ex. P-2. In cross-examination he has stated that he can read and speak Hindi, but does not know writing Hindi. Razwana Parveen has made the statement in Urdu which this witness also understands because the Urdu language used by her was almost Hindi language. He has also stated on oath that in Hyderabad, Urdu and Hindi languages are spoken and both the languages are one and the same and there is not much difference in them. He has also stated that when the statement of Razwana Parveen was recorded, no one except the Doctor and he himself was present there. Dr. Y. Vidyasagar, PW-11, has corroborated his statement saying that before the Magistrate started recording the statement of Razwana Parveen, he had examined her and had found that she was in a fit mental condition to make a statement. He was present when the statement was recorded by the Magistrate which is at Ex. P-2 and he has also given a certificate on Ex. P-2 which is at Ex. P-2A.
16. In the case of Bakshish Singh v. State of Punjab, 1957 Cri LJ 1459, the declaration of the injured person was taken down in Urdu though the injured gave the narrative in Punjabi language. In Punjab, the language used in the Subordinate Courts and that employed by the police in recording of statement had always been Urdu and recording of the dying declaration in Urdu was, therefore, not found to be a ground for saying that the statement did not correctly re-produce what was stated by the declarant. The reason for rejecting the dying declaration because it was recorded in urdu was found to be wholly inadequate reason.
17. As noted above, PW-1 has stated that in Hyderabad, Urdu is spoken which is similar to Hindi language. He stated that he knew Hindi language well and, therefore, he recorded the dying declaration in English after hearing the statement in Urdu which is similar to Hindi and after recording her statement, it was read over to the declarant who accepted it to be correct. Under these circumstances, the reason given by the Trial Judge in Para 23 of his judgment that the statement Ex. P-2 cannot be given much weight legally because the declarant had stated in Urdu language which was translated into English by the Magistrate, is wholly inadequate and unacceptable particularly when I get from the evidence of PW-1 that he was unable to write the statement in Urdu and that was the reason for recording the statement in English after translating the same.
18. From a reading of the dying declaration Ex. P-2 it appears that the 2nd respondent always used to fight with her and used to scold her on some pretext or the other. She used to abuse her as her preparation of food was not good. On the same allegation, the 1st respondent used to abuse her and used to send her or drop her in her parents house. Her mother-in-law used to make allegations against her to her husband and used to prejudice him and as a result thereof her husband used to scold her very often. She was fed up with the treatment of her mother-in-law and her husband and therefore she was disgusted with her married life. On 9-3-1988 at about 9.30 p.m. she poured kerosene oil on her body and clothes and set fire with the kerosene lamp due to which she had received burn injuries. At that time her husband and mother-in-law were present in the house. She has also stated that she had no grievance with her brother-in-law and father-in-law as also sister-in-law.
19. The Lower Court in Para 27 of its judgment has observed that it is common for husband or mother-in-law to point out the defect in cooking if the food cooked is not tasty and it is not unusual to scold a woman for such defaults and, therefore the allegation made in Ex. P-2 that the husband and the mother-in-law used to scold her on the ground that she did not prepare good food cannot be viewed seriously. The finding of the Lower Court is unreasonable. As noted above, the respondents used to continuously scold Razwana Parveen on one pretext or the other. Thus, it appears that they used to find fault with the cooking not because the food was not tasty, but because they wanted to lease Razwana Parveen on the false ground that the food cooked by Razwana Parveen was not tasty or she did not know preparing good food. That appears to be the pretext for scolding her and driving her to her parents house. The continuous mental cruelty practised on her appears to be grave and serious provocation enough for an ordinary Indian woman to do what the deceased is alleged to have done to herself. Scolding occasionally for mistakes of a woman may not per se amount to cruelty, but the continued taunting, insulting and scolding a woman on false pretexts clearly attracts the term 'cruelty' as defined under Section 498-A of the Penal Code.
20. The brother of the 1st respondent had gone to the house of the parents of the deceased to inform them about the incident. The husband of the deceased had taken the injured Razwana Parveen to the hospital. As noted earlier, from a perusal of the dying declaration, it appears that the relationship of the deceased with her brother-in-law was cordial and, therefore, merely because he went to the house of PW-4 to inform him about the incident cannot be taken as a ground for concluding that the behaviour of the respondents towards the deceased was good. Similarly, taking of the injured Razwana Parveen to the hospital after the incident by itself is not indicative of the fact that they had treated Razwana Parveen properly during her stay in their house, particularly in the light of the fact that they did not try to save the burning Razwana Parveen at the relevant time though they were very much present there.
21. True, that there is no direct evidence available on record, but the dying declaration of Razwana Parveen which is Ex. P-2 and the statements of PWs. 3 to 7, as discussed above, established the guilt of the respondents.
22. For the foregoing reasons, disagreeing with the Learned Trial Judge, I hold that on account of the continuous mental cruelty practised by the respondents, Razwana Parveen was fed up with her married life and was compelled to end her life by committing suicide.
23. A combined reading of the language in Section 498-A of the Penal Code read with the legal presumption provided under Section 113-A of the Evidence Act makes it clear that the Statutes permit to draw past instances of cruelty by necessary implication and there is a legal intendment by providing presumption as to the abetment of suicide by a married woman she dies within a period of seven years from the date of her marriage (vide P. Bikshapathi v. State of Andhra Pradesh, 1989 Crl J 1186. In the case of P. Bikshapathi v. State of Andhra Pradesh (supra), it is observed in Para 51 : at Page 1198; of Cri LJ.
"It is well settled that the prosecution must prove that the wife was subjected to cruelty as defined in S. 498-A I.P.C. It is the intentional aid and active complicity which forms the gist of the offence and the Court can draw a presumption under S. 113-A Evidence Act. To ignore the past events of cruelty to consider an offence u/S. 306 and S. 498-A I.P.C. which takes place would mean to make these provisions nugatory and the object of introducing S. 113-A Evidence, Act, will be defected."
24. In the case of Ashok Kumar v. State of Rajasthan, , it is held : at Page 2277; of Cri LJ.
"Law is well settled. While caution is the watchword, in appeal against acquittal as the Trial Judge has occasion to watch demeanour of witnesses and interference should not be made merely because a different conclusion could have been arrived, the provision does not inhibit any restriction of limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless."
25. Thus, on evaluating the evidence on record with regard to the demand of dowry, the evidence on record is not acceptable, but as noted above, the prosecution has made out a case against the respondents for the offences punishable under Sections 306 and 498-A of the Penal Code.
26. In result, the appeal is partly allowed and the order of acquittal of the respondents under Section 304-B of the Indian Penal Code is confirmed, but the order of acquittal recorded under Sections 306 and 498-A of the Indian Penal Code is set aside. I convict both the respondents under Sections 306 and 498-A and looking to the circumstances of the case and the manner in which the offence has been committed. I sentence both the respondents to suffer rigorous imprisonment for a period of two years under Section 306 of the Penal Code as also under Section 498-A of the Indian Penal Code. Both the sentences shall run concurrently. The period during which the respondents might have remained in jail would be set off against the imprisonment of two years under Section 428 of the Criminal PC. The respondents shall immediately surrender themselves before the Lower Court to suffer the sentence of imprisonment and in the event of default, the respondents should be arrested and sent to jail to suffer the sentence of imprisonment as aforesaid.
27. Appeal partly allowed.