Andhra HC (Pre-Telangana)
Vanamala Amaranadh vs The State Of Andhra Pradesh Through The ... on 1 August, 2001
Equivalent citations: 2001(2)ALD(CRI)405, 2001(2)ALT(CRI)244, 2001CRILJ4498, II(2001)DMC676
ORDER V. Eswaraiah, J.
1. The sole accused filed this appeal against the Judgment in S.C. No. 137 of 1993, dt.16.6.1995 on the file of the Sessions Judge, Warangal convicting him for the offences under sections 498-A and 306 of the Indian Penal Code and sentencing him to undergo R.I. for two years for the offence punishable under section 498-A I.P.C. and to suffer R.I. for 7 years for the offence punishable under section 306 I.P.C.
2. The brief facts of the case are that the appellant, a resident of Govardhangiri village of Raghunathapally Mandal, Warangal district married the deceased viz., Vanamala Bhagya Lakshmi, a resident of Shivunipally village of the same Mandal and the distance between the village of the accused and his in-laws village is about 4 kilometres. At the time of marriage, the father of the deceased paid an amount of Rs.6,000/- as dowry to the accused in addition to other articles as per their custom. After one year of the marriage, the marriage was consummated and the deceased joined her husband and was living with him at Govardhanagiri at her in-laws place. She has given birth to a female child and after four years of the marriage, the accused started harassing and ill-treating her to get more dowry from her parents. The deceased committed suicide by pouring kerosene on herself on 19.3.1991 at about 10.30 AM and she was taken to the hospital by her mother and the husband (appellant) and she was admitted in the hospital at Warangal at about 12.55 PM. She sustained 70% burn injuries all over the body and her statement was recorded by the Magistrate and she died at 9.30 PM in the night on the same day.
3. P.W.1 is the father of the deceased. P.W.2 is the mother of the deceased. P.W.3 is the brother of the deceased. They have not supported the case of the prosecution and all of them were turned hostile. P.W.4 is the panch witness to the scene of offence and through him Ex.P-4 panchnama is marked. P.W. 5 is the inquest panch and through him Ex. P-5 got marked. P.W. 6 is the I Additional Munsif Magistrate, Warangal who recorded the dying declaration on 19.3.1991 at about 3.30 PM in the presence of the Doctor P.W. 10. P.W.7 is the Doctor who conducted the Post-mortem examination and Ex. P-8 is the Post-mortem certificate. P.W. 8 is the Head Constable who received the intimation from the hospital regarding the admission of the deceased and also the information of the death of the deceased. After receipt of the information, he gave a requisition to the Mandal Revenue Officer to conduct inquest Ex. P-5. P.W. 9 is the Doctor who admitted the deceased person in the hospital at about 12.55 PM and he made entries in the medico legal register and he questioned the deceased as to how she received the burn injuries and her statement is recorded in the register as follows:
" Alleged to have been sustained burning by herself with kerosene by about 10.30 AM on 19.3.1991 at her mother's residence due to teasing of husband for dowry"
4. The said endorsement is marked as Ex. P-12.
5. The cause of the death as told by the deceased herself is that she committed suicide for teasing by her husband for dowry. At the time of recording dying declaration by the Magistrate, P.W. 10 the Doctor certified that the patient is conscious and fit during the declaration of the above statement. P.W. 11 is the Investigating Officer who arrested the accused on 25.3.1991 and seized certain articles viz., MOs. 1 to 4.
6. As the parents and the brother of the deceased turned hostile, the case rests only on the two dying declarations i.e., Ex. P-6 recorded by the Magistrate P.W. 6 and the Ex. P-12 recorded by the Doctor P.W. 9 in the medico legal register. No doubt the parents in whose house the deceased committed suicide did not support the case of the prosecution but the learned Judge convinced himself and found the accused guilty mainly relying on the dying declarations Exs.P-6 and P-12.
7. Sri Padmanabha Reddy, learned senior counsel appearing for the appellant submits that there are two dying declarations and they are neither proved nor volunteer ed. As the deceased died in the house of her parents, she was not in a position to make a true statement as admittedly the mother of the deceased P.W. 2 stated in her oral evidence that she tutored her daughter to give statement to any Gover nment Officer if asked that she committed the act as a result of demand of dowry by the accused. He further submits that the Doctor who recorded Ex. P-12 has not stated that whether the deceased was in a fit mental condition to state the things. In Ex. P-12 it is stated that due to teasing of husband for dowry she committed the act of pouring kerosene and setting herself ablaze but where as in the dying declaration Ex. P-6 recorded by the Magistrate P.W. 6, she stated that her husband was demanding dowry and she has been vexed with it and poured kerosene on her body and set fire. The learned senior counsel submits that there is variation in the aforesaid two dying declarations. In Ex. P-12 it is stated that due to teasing of her husband for dowry she committed the aforesaid act but whereas in Ex. P-6 it is stated that her husband was demanding dowry and she has been vexed with it and therefore she poured kerosene on her body and set herself ablaze. He states that teasing of the husband for dowry cannot be equated or similar to the one in Ex. P-6 wherein she has stated that her husband is demanding dowry and she has been vexed with it and therefore there is a variation in the two dying declarations and it is unsafe to rely upon those two dying declarations to convict the accused. Prima-facie, I am not inclined to accept the contentions of the learned senior counsel as both the things relating to the dowry only. The teasing of the husband is only relating to the dowry. As he was demanding the dowry, she has been vexed. It is only an explanation in different words but it cannot be said that there is a clear distinguishable variation in both the dying declarations. The doctor who recorded the statement in Ex. P-12 no doubt has not explained to the deceased the true version of recording the statement but he has only noted the version of the deceased at the time her admission in the hospital, but where as in Ex. P-6 dying declaration it is mentioned by the learned magistrate that after he put some questions to her and after satisfying himself about the condition and consciousness of the deceased, thereafter he proceeded with recording of her statement.
8. Question: What happened?
Ans : As my husband is demanding the dowry, I have been vexed with it and poured kerosene on my body and set fire.
9. Question: Have you anything else to say?
Ans : Nothing else to say.
10. She has declared that the above recording of the statement is true version on reading over the same to her and in proof of her admission, which is the correct and true version she has also put her thumb impression. The dying declaration was recorded by P.W. 6 in the presence of Doctor P.W. 10 and he has endorsed on the dying declaration stating that the patient is conscious and fit during the declaration of the above statement.
11. Learned senior counsel further submits that even assuming that there is no variation in both the declarations, there is no certificate by the doctor certifying the state of mind that existed before recording the dying declaration and the Magistrate's satisfaction with regard to patient's consciousness for giving proper answers to the questions put-forth by him is not sufficient and therefore, it is not safe to rely on the dying declaration Ex. P-6. In support of his contention he relied on a decision of the apex court in PAPARAMBAKA ROSAMMA V. STATE OF A.P.
12. In the aforesaid case also the learned Magistrate recorded the dying declaration and at the end of the dying declaration, the Doctor has appended a certificate saying that the patient is conscious while recording the statement. The question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of the certificate by the Doctor certifying the state of mind that existed before recording the dying declaration. Their lordships were of the opinion that in the absence of medical certificate the injured was in a fit state of mind at the time of the making declaration, it would be very much risky to accept the subjective satisfaction of the Magistrate who opined that the injured was in a fit state of mind at the time of making the declaration and accordingly the apex court held that the dying declaration must be treated as circumstantial evidence only but not as a substantive evidence under section 32 of the Indian Evidence Act. The said Judgment was delivered by three Hon'ble Judges of the Supreme Court on 13th September, 1999. Exactly sixteen days thereafter, three Hon'ble Judges of the Supreme Court in KOLI CHUNILAL SAVJI AND ANOTHER V. STATE OF GUJARAT2 held as follows:
"With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr. Shukla, she told the doctor on duty that she was required to take the statement of Dhanuben and she showed the doctor the police yadi. The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on the police yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of the doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keswani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon. "
13. In view of the aforesaid latter Judgment of the three Hon'ble Judges of the apex court, the two dying declarations made by the deceased in this case one at the time of admission by the Doctor and latter one recorded by the learned Magistrate corroborate each other and there is no material inconsistency in those two declarations i.e., Exs. P-12 and P-6. Therefore, I have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary and can be relied on by the prosecution in bringing home the charge against the accused person and the prosecution case must be held to have been established beyond reasonable doubt.
14. In view of the aforesaid latter Full Bench Judgment of the apex court, I am not inclined to consider the other decisions cited by the both the counsel.
15. As regards the conviction for the offence under section 498-A I.P.C, it is proved beyond all reasonable doubt as per the dying declarations of the deceased that the husband of the deceased was teasing the deceased for dowry and demanding the dowry and therefore, for the said wilful conduct of the husband, the deceased was subjected to cruelty driving herself to commit suicide as the said demand of dowry caused her mental injury. As far as the offence under section 498A, I.P.C. is concerned, there is a legal presumption under section 113-A of the Indian Evidence Act, according to which when a question arises as to whether the commission of the suicide by a woman for her subjection to the cruelty by her husband, if the lady commits suicide within 7 years from the date of her marriage and on the statement made by the deceased that her husband demanded dowry, therefore she committed suicide, it can safely be presumed that she was subjected to cruelty by her husband and accordingly I upheld the Judgment of the trial court with regard to conviction for the offence committed by the appellant under section 498-A I.P.C.
16. With regard to the offence under section 306, I.P.C, the question that arises for consideration is as to whether the husband abetted the commission of such suicide by the deceased. Abetment is defined under section 107, I.P.C. According to section 107, I.P.C, a person abets doing of the thing who instigates any person to do that thing and intentionally aids by any act or illegal omission doing that thing. Here doing of that thing is committing suicide. The deceased committed suicide at the house of her parents but not in the house of the accused. The question of abetting that thing of committing suicide by the husband does not arise in this case as he has not aided or abetted for setting herself suicide pouring in kerosene and putting on fire. Therefore, I am not inclined to sustain the Judgment of the trial court for the offence committed under section 306, I.P.C. and accordingly the appellant is entitled for an acquittal for the offence punishable under section 306, I.P.C. and he is acquitted for the offence under section 306 I.P.C.
17. So far as the punishment under section 498-A, I.P.C. is concerned, I am inclined to reduce the sentence imposed by the trial court in view of the fact that the deceased committed suicide at her parents house but not in the house of the accused and her parents and brother also did not support the case of the prosecution and therefore, I am inclined to take a lenient view and the sentence imposed by the learned Sessions Judge for the offence punishable under section 498-A I.P.C is reduced and limited to three months. The appellant is entitled for set-off for the imprisonment already undergone by him.
18. The appeal is partly allowed and the impugned order is modified to the extent indicated above.