Andhra HC (Pre-Telangana)
Sanagala Yagna Sree vs State Of Andhra Pradesh on 6 September, 1995
Equivalent citations: 1996(1)ALD328, 1996(1)ALD(CRI)892, 1996(1)ALT(CRI)200, 1996(1)APLJ121, 1996CRILJ1249, II(1996)DMC162, 1996(1)LS120
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
JUDGMENT
1. The conviction of the appellant-accused for an offence punishable under Section 306 I.P.C., for which sentence of 8 years R.I., and fine of Rs. 5,000.00 was imposed and for an offence punishable under Section 498-A I.P.C., for which sentence of 3 years R.I. and fine of Rs. 2,000.00 was imposed.
2. The prosecution is founded on the dying declaration of Bhagya Lakshmi who was the wife of the accused. In that declaration recorded by the Magistrate PW-4 on 12-5-1990 at 12.20 p.m. she said that she was married to the accused for the past 2 years and was blessed with a son, she was of six months pregnancy, her husband has worked as Medical Representative at Visakhapatnam in Torrent Company, Later joined Apex Company at Rajhamundry and thereafter they came to Rajahmundry in March of previous year, he used to bring to their house one woman by name Sridevi who was teaching tailoring and when she objected, he used to beat her and on the previous day at about 7 O'clock he beat her with a belt indiscriminately and when she wanted to go out, he obstructed and abused her and therefore unable to bear the torture meted out by him, she pour kerosene on her body and set fire to herself. When she raised a hue and cry, her husband and neighbours rushed to her and put off the fire and her husband took her to the private nursing home and later he brought her to the Government hospital where she gave the dying declaration. She also stated that from the beginning her husband used to ill-treat and torture her at the instigation of her in-laws and husband's sister and he would not bring anything to the house and won't give money either and cannot provide food properly. On the basis of this declaration, the accused as well as his father and mother were prosecuted. The other evidence on record is that of the brother of the deceased PW-1 who stated that the accused used to demand that land of Ac. 1.10 cents given to the deceased as a marriage present should be sold for buying a scooter for him, that he developed illicit intimacy with Sridevi and was bringing her to the house and he was beating the deceased often. He also stated that after their coming to Rajahmundry, there was a mediation by one Mr. Krishna Reddy in respect of the differences between the couple and even after the mediation, the conduct of the accused had not changed. The deceased had given a report Ex. P.2 to the Rajahmundry Town Police where-upon an assurance was given by the accused Ex.P.3 and deceased also gave an assurance Ex. P.4. The other witnesses were PW-2 who was the neighbour who had witnessed the occurrence of rescue of the deceased after she had set fire to herself and PW-3 who was the Doctor who had examined her. PW-4 is a Magistrate who recorded the dying declaration. PW-5 is the mother of the deceased who also stated that the deceased had been subjected to cruel treatment by the accused and corroborated most of the evidence of PW-1. PW-6 is the mediator who had been approached by the couple on the earlier occasion for reconciliation. PW-7 is the witness for the observation report. PW-8 is the Head Constable and PW-9 is the Sub-Inspector who investigated the matter. The learned Sessions Judge after going through the evidence came to the conclusion that the prosecution has proved that the accused appellant was guilty of abetting the suicide of the deceased and accordingly convicted him under Section 306 I.P.C. as well as under section 498-A I.P.C. But he was of the view that there was no direct evidence in respect of the parents whom he acquitted.
3. In this appeal the learned counsel for the accused-appellant submitted that the dying declaration was not true and should not be relied upon. He pointed out that there was a statement in the dying declaration that the deceased was pregnant whereas in fact she was not pregnant and this indicates that she was not clear about her statement that she was making. He also stated that the doctor who certified her to be conscious was not examined to prove that she was not only conscious but also fit to give the declaration. The other discrepancy in the dying declaration which the learned counsel depended upon was that the statement regarding the illicit relationship of the accused with one Sridevi had not been given on earlier occasions. He pointed out that in the complaint of the deceased to the police Ex.P.2 this allegation was added at the bottom left hand corner on the side of the signature indicating that it was written in that document after the complaint had been signed by the deceased. He also pointed out that both PW-1 and PW-6 had not mentioned about this to the Inspector in the statement recorded under Section 162 Cr.P.C. He also pointed out that PW-5 has testified in his evidence that the accused had beaten the deceased in her presence, whereas this allegation was not made before the police in her Section 162 Cr.P.C. statement. The learned counsel argued that for all these reasons the dying declaration was not credible and the conviction cannot be sustained on the basis of such a dying declaration. He also submitted that the allegation of demand for sale of land was not made in the dying declaration at all and therefore even under Section 498-A the ingredients of sub-section (B) of the Explanation were not present and if at all the question will be only with reference to sub-section (A) which refers to wilful conduct of the nature which is likely to drive the woman to commit suicide. He argued relying on the decision of this Court in C. Veerudu v. State of A.P. (1988) 2 Andh LT 171 : (1989 Cri LJ NOC 52) that the conduct referred to in this section should be much more than matrimonial cruelty and should be accompanied with some mens rea before it could be considered as sufficient for conviction in that section. He also referred to the decision of the Supreme Court in State of West Bengal v. Orilal Jaiswal to contend that a presumption under Section 113.A of the Evidence Act is rebuttable and a conviction under Section 306 I.P.C. cannot be sustained only because there was some cruelty within the meaning of Section 498-A I.P.C.
4. The learned Public Prosecutor supported the conviction on both the grounds and pointed out that according to the dying declaration, which was recorded in accordance with the guidelines given by the Supreme Court in Munnu Raja v. State of Madhya Pradesh , there was continuous torture of the deceased leading her to take her own life. He submitted that once the declaration is accepted as true, then it would follow that the conviction both under Section 498-A and Section 306 I.P.C., should be upheld because there was a presumption that such cruelty amounted to abetment of the suicide.
5. I have gone through the evidence and the judgment of the learned Sessions Judge who has also dealt with the same objection which had been put forward before me. With regard to the question whether the dying declaration is reliable or not, it is not in dispute that the guidelines given by the Supreme Court have been clearly followed and there is no procedural infirmity in recording the dying declaration. The contention of the learned counsel for the appellant is that the contents of the dying declaration contain certain incorrect information and therefore cannot be relied. The statement in the dying declaration that the deceased was in 6th month pregnancy is obviously incorrect because even the postmortem report shows that the uterus was empty. But this single error may not make the entire declaration to be wrong because such an error was a subjective perspective of the deceased. As it is shown that she was not being properly treated by the husband, it is not as if she had a medical examination and confirmed her pregnancy. It is possibly her own feeling that she was pregnant because she had been missing her periods. Such a statement by her cannot therefore be taken as factual error which should detract from the truth of the other statements by her. With regard to her allegation that the accused was having illicit relations with another lady also, there is evidence of her complaining about it to the mediator on the earlier occasion. Even though there may be some interpolation in the complaint given in Ex.P.2, there is an implied reference to it in the assurance given by the accused in Ex.P.3 where he stated that he will not entertain any kind of quarrels or indecent things to his family. Therefore, it cannot be said that the allegation in the dying declaration about his relationship with another lady was entirely extraneous to the tone of the declaration. The fact is that the dying declaration categorically states that she was being ill-treated and tortured continuously and on the previous day she was beaten indiscriminately with a belt. This fact which she was being beaten is definitely proved by the medical evidence on record. In my opinion this fact alone will be sufficient to hold that there was cruelty within the meaning of the explanation to Section 498-A I.P.C.
6. The contention of the learned counsel for the appellant that such a beating even if proved will not be sufficient to come within the explanation defining 'cruelty' under Section 498-A I.P.C. because such cruelty must be wilful, meaning something more than matrimonial cruelty which may not be proved against a spouse is supported by the decision of this Court in C. Veerudu v. State of A.P. (1988 (2) Andh LT 171 : 1989 Cri LJ NOC 52) (supra). However subsequent to that decision of facts which are almost similar to the present case, the Supreme Court has upheld the conviction under Section 498-A. I.P.C., in State of West Bengal v. Orilal Jaiswal (1994 Cri LJ 2104) (supra). I must, therefore, take it that the approach taken by this Court in understanding the definition of 'cruelty' did not appeal to the Supreme Court and hence I am unable to accept this contention of the learned counsel for the appellant.
7. The third point that is to be considered is whether an offence under Section 306 can be presumed as soon as cruelty under Section 498-A I.P.C. is proved. Under Section 113-A of the Evidence Act when the question whether the commission of suicide of a woman has been abetted by her husband arises and it is shown that she committed suicide within a period of seven years from the date of marriage and her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide has been abetted by her husband. The explanation to this section states that the word cruelty shall have the same meaning as in Section 498-A I.P.C. The contention of the learned Public Prosecutor is that as soon as offence of cruelty is established with reference to Section 498-A I.P.C., a presumption under Section 113-A of the Evidence Act would arise and automatically there should be a conviction under Section 306 I.P.C. The learned counsel for the appellant points out that the presumption under Section 113-A is not a conclusive presumption similar to Section 113-B of the Evidence Act since it only states that the Court may presume all other circumstances of the case being taken into account. He also pointed out to the fact that the Supreme Court has acquitted the accused under Section 306, I.P.C. while confirming the conviction under S. 498-A, I.P.C. in State of West Bengal v. Orilal Jaiswal (1994 Cri LJ 2104) (supra) presumably because the presumption was not drawn in that case. Since the Supreme Court has not spelt out the reason for that decision, I have necessarily to refer to the definition of abetment in Section 107 I.P.C., to understand the scope of this presumption. That section shows that there are three ingredients to an abetment; firstly instigation, secondly conspiracy and thirdly intentional aiding of the act. The presumption under Section 113-A must naturally refer to one of these there ingredients. In the present case there is no question of conspiracy or aiding the suicide. The question that will remain is whether the cruelty that is established under Section 498-A I.P.C., would lead to a presumption that the accused had instigated the suicide under Section 107. Unlike the other cases cited before me, there is no evidence in this case of the husband-accused telling the wife to commit suicide or to kill herself. The learned counsel also points out to the fact that immediately after she set fire to her body, the accused tried to rescue and took her to the private hospital and thereafter to the Government hospital indicating that he did not really want her to die even though he might have treated her cruelly earlier. Having regard to the surrounding circumstances, I am of the view that the accused cannot be presumed to have abetted the suicide of the deceased in the sense that he cannot be regarded as having instigated her to commit suicide by reason of the cruel treatment meted out by him. At the same time the cruel treatment was definitely of the nature defined in Section 498-A I.P.C. and therefore I have to come to the conclusion that he has committed an offence punishable under Section 498-A I.P.C. I, therefore, acquit the accused of the offence under Section 306 I.P.C. and confirm the conviction under Section 498-A I.P.C. and the sentence imposed. Though the learned counsel for the appellant pleaded that taking into consideration the youth of the accused, the sentence of three years, which is the maximum imposed by Section 498-A I.P.C. should be reduced. I am not inclined to accept this. Hence the sentence imposed under Section 498-A I.P.C., is confirmed.
8. In the result, the appeal is allowed in part.
Appeal Party allowed.