http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  946 of 1997

PETITIONER: Lella Srinivasa Rao

RESPONDENT: State of Andhra Pradesh          

DATE OF JUDGMENT: 26/02/2004

BENCH: N.SANTOSH HEGDE & B.P. SINGH.

JUDGMENT: JUDGMENT

B.P. SINGH, J.

       This appeal by special leave is directed against the  judgment and order of the High court of Judicature at Andhra  Pradesh at Hyderabad dated November 26, 1996 in Criminal  Revision Case No.195 of 1995 whereby the High Court while  partly allowing the appeal and acquitting the appellant of the  charge under Section 306 I.P.C, confirmed his conviction and  sentence under Section 498-A I.P.C on which count the  appellant has been sentenced to undergo rigorous imprisonment  for three years and to pay a fine of Rs.1000/-.

       The appellant Lella Srinivas Rao and his mother Lella  Gangamamba were tried by the Assistant Sessions Judge,  Chirala charged of the offences under Sections 498-A and 306  I.P.C.  The case of the prosecution was that the appellant herein  was married to the deceased Bhavani about three years before  the date of occurrence which took place on 15.8.1990.  The case  of the prosecution was that the appellant as well as his mother  (accused No.2) treated Bhavani (deceased) with such cruelty,  and harassed her to such an extent, that she was forced to  commit suicide at about 12.45 p.m. on 15.8.1990.  She set fire  to herself as well as her daughter who was about 1-1/2 years old  as a result of which both of them succumbed to their injuries  later on the same day.  The trial court found them guilty of the  offence under Section 306 I.P.C. and sentenced both the  accused to undergo rigorous imprisonment for a period of seven  years under Section 306 I.P.C. and three years rigorous  imprisonment under Section 498-A I.P.C.  Both the accused  preferred Criminal Appeal No. 169 of 1992 which came to be  disposed of by the Court of Session, Prakasam Division,  Ongole who dismissed the appeal and upheld the convictions  and sentences.  The accused thereafter challenged their  convictions and sentences before the High Court which set  aside the conviction under Section 306 I.P.C. but upheld their  conviction and sentence under Section 498-A I.P.C.  

       From the record it appears that both the accused preferred  special leave petitions before this Court. The special leave  petition of accused No.2, Lella Gangammamba was dismissed  by order dated 28.4.1997 and notice was issued confined to the  petition on behalf of the appellant herein, which was later  admitted for hearing.

As noticed earlier, the deceased was married to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

appellant on 24th January, 1988.  It appears that some  differences cropped up between them to which we shall refer  later in this judgment.  On the 15th August, 1990 the deceased  Bhavani set fire to herself and her 1-1/2 years old daughter at  about 12.45 p.m.  She had closed the door of her room and after  pouring kerosene oil on herself and her child set herself ablaze.   When she cried in pain her neighbours came to her rescue, got  the door opened, and put off the fire.  She was taken to the  Government Hospital, Chirala along with child.  Intimation was  sent by the hospital authorities to the Magistrate for recording  the dying declaration of the deceased.  On such request PW-13  the II Additional Munsif Magistrate, Chirala visited the hospital  at 3.05 p.m. and recorded the dying declaration of Bhavani  which was exhibited at the trial as Ex.P-18.  The dying  declaration was recorded by him between 3.30 p.m. and 3.40  p.m. The said dying declaration is in question answer form and  was recorded in the presence of the treating physician who  certified that Bhavani was conscious when the dying  declaration was recorded.  The Munsif Magistrate read over the  contents to the deceased in the presence of the Doctor and on  Bhavani admitting the statement to be correct, she affixed her  thumb impression on the dying declaration.

       In this dying declaration Bhavani (deceased) stated that  due to unbearable harassment caused by her mother-in-law she  had poured kerosene oil on her body and had set herself on fire  at about 1.00 p.m. on that day.  To a specific question she  replied saying  that none-else had set her on fire.  It also appears  that while recording the dying declaration the Magistrate had  taken care to remove all other persons from the room, except  the doctor on duty.

       There is another dying declaration on record Ex.P-19  which was recorded by Head Constable, Rasool Saheb, PW-15  only 5 minutes after the dying declaration was recorded by the  Munsif Magistrate.  According to Head Constable, Rasool  Saheb, PW-15 he received intimation at about 3.00 p.m. on the  date of occurrence from the Government Hospital and he  immediately went to the hospital and recorded the statement of  the deceased.  The second dying declaration recorded by Head  Constable, PW-15 is a detailed dying declaration in which  Bhavani (deceased) has stated that she was a house wife  married to the appellant three years ago and had a female child  who was about 18 months old on the date of occurrence.  Her  husband and mother-in-law used to harass her and did not want  her to speak or behave amicably with her relatives and used to  beat her often. On 14.8.1990 her parents visited her and  thereafter went away. After they had left, and on coming to  know this fact, her husband harassed her.  Due to the  unbearable harassment meted out to her she was disappointed  with her life and she closed the doors of her room in the  absence of family members and after pouring kerosene oil on  her body and on her child she set herself on fire which engulfed  her and her child and both were badly burnt.  On account of  severe burns suffered by her she cried, hearing which her  neighbours broke open the door and entered the house and  extinguished the flames.  She and her child were taken to the  Government Hospital by them.

       It will thus be seen that whereas in the first dying  declaration the allegation made is only against the mother-in-  law saying that she used to be harassed by her, in the second  dying declaration she has given details relating to her parents  visiting her on 14th August, 1990 and the harassment meted out  to her by the appellant herein after he came to know of the fact

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

that her parents had visited her.  This was because her husband  and mother-in-law did not want her to speak or behave  amicably with her relatives.  She was, therefore, disappointed  with life and chose to commit suicide.

       It is apparent that while in the first dying declaration  there is only a general allegation against the mother-in-law,  accused No.2, in the second dying declaration the allegation of  harassment is against the husband as well as the mother-in-law  and the immediate cause for the suicide was her being harassed  by her husband, the appellant herein, after her parents had left.   It cannot be disputed that the two dying declarations are not  consistent with each other.  The complicity of the appellant  herein is disclosed only in the second dying declaration.

       However, the High Court has not accepted the case of the  prosecution so far as it relates to the offence under Section 306  I.P.C. and no appeal has been preferred against the impugned  judgment and order of the High Court acquitting the accused of  the charge under Section 306 I.P.C.  The sole question,  therefore, which arises for consideration is whether there is  evidence to support the charge under Section 498-A.

       The prosecution at the trial examined some members of  the family of the deceased including her father, PW-1 and her  uncles PWs-2 and 3.  PW-4, Shyama Sundara Rao is a brother- in-law of PW-1, the father of the deceased.  None of these  witnesses have supported the case of the prosecution regarding  torture and harassment of the deceased by her husband or  mother-in-law.  No doubt they have been declared hostile but  their evidence does disclose the reason for the  misunderstanding between the appellant and the deceased.

       PW-1, in his deposition stated that after her marriage  with the appellant his daughter Bhavani resided with the  appellant and the relationship between them was cordial.  His  daughter, Bhavani (deceased) gave birth to a daughter and when  her daughter was about 5 months old she came to his house  because of some dispute with her husband, the appellant.   According to PW-1, the accused was the only son of his  parents.  His elder sister died on 15.5.1987 leaving behind three  children all below the age of 14 years.  The husband of his  deceased sister re-married and set up his family, but his three  children from the first wife were left with the appellant and they  used to reside in the same house where the appellant resided  with his parents.  This was objected to by deceased Bhavani  and she had stated that she would not live with the appellant till  he separated from his father and lived separately from them.    She did not like that the children of her deceased sister-in-law  should be brought up by the family members of her husband  including her mother-in-law, accused No.2.   According to the  father of the deceased this was the reason for misunderstanding  between the deceased and the appellant.  He further stated that  on 14th August, 1990 he had been informed by PW-4, that there  was some misunderstanding between the appellant and his  daughter and he had requested him to come and get the matter  patched up.  He had gone to the house of his daughter on  14.8.1990 and patched up their differences.  On the next day, he  came to know that his daughter had set herself on fire and that  she had been admitted in a hospital.  He denied having stated  before the police that the accused were responsible for the death  of his daughter.  According to him the accused looked after the  welfare of his daughter and she delivered a daughter and lived  in the house of the appellant till the child was 5 months old.   She had thereafter come to reside with him on account of some

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

misunderstanding with her husband.  The reason for the  misunderstanding was the objection of his daughter to the  upbringing of deceased sister-in-law’s children by her  husband’s  family.  No accusation has been made by the father  of the deceased to the effect that Bhavani was ever ill-treated or  harassed by either the appellant or his mother-in-law or any  other member of the family.  PW-2, a brother of PW-1 has also  deposed on the same lines as PW-1.  In the deposition of PW-4  also there is no allegation that the deceased was ill-treated by  her husband or members of his family.  In fact, the learned Trial  Judge noticed that except the two dying declarations, there was  no other evidence before the Court to prove that the deceased  was treated with cruelty and harassment which led her to  commit suicide.  However, the Trial Court finding the two  dying declarations to be consistent and supplemental to each  other relied upon them and recorded the conviction of the  appellant as well as his mother, accused No.2 under Sections  498-A and 306 I.P.C.  Appellate Court also upheld the  judgment and order of the Trial Court.  The High Court in  revision, however, came to the conclusion that though the facts  of this case prove commission of offence under Section 498-A  I.P.C., the prosecution had failed to prove its case under Section  306 I.P.C.

       Having noticed the evidence on record and having  noticed the inconsistency between the two dying declarations,  we do not find it safe to base the conviction of the appellant on  the basis of the second dying declaration.  As noticed earlier, in  the first dying declaration there is no mention about the  appellant having treated the deceased with cruelty or of his  having caused harassment to the deceased.  In fact, his name  does not find place in the relevant portion of the first dying  declaration.  The first dying declaration was recorded by a  Magistrate after taking all necessary precautions.  The deceased  was in a position to make a statement which was certified by  the treating physician who was also present when the statement  was recorded.  Only 5 minutes thereafter another statement was  recorded by the Head Constable and in that dying declaration  allegations have been made against the appellant and fact stated  relating to the immediate cause which led the deceased to  commit suicide which are attributable to the appellant, though  there is a statement that her mother-in-law also used to harass  her.

       Learned counsel for the appellant submitted that there  was no necessity for the Head Constable to record another  dying declaration when the Munsif Magistrate had already  recorded the dying declaration.  In any event, the deceased did  not in her first dying declaration accuse the appellant of having  caused harassment to her, or having ill-treated her, and  therefore there is no justification for convicting the appellant  even for the offence under Section 498-A I.P.C.

       We have earlier noticed the evidence examined by the  prosecution in support of its case that the deceased was treated  with cruelty by both the accused.  However, the witnesses  including the father of the deceased have not supported this  case.  In fact, the father of the deceased namely, PW-1, in his  deposition stated that misunderstandings arose between his  daughter and her husband on account of the fact that the three  children of the deceased sister of the appellant were being  brought up in the house of the appellant which was objected to  by the deceased.  If in those unfortunate circumstances the three  children of the deceased sister of the appellant were being  brought up in his family, one cannot blame the appellant or his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

parents for having shown compassion towards the children of  his deceased sister.  If that is what caused annoyance to the  deceased, one cannot equate such conduct with cruelty or  harassment.  We also find no reason why on this aspect of the  matter the father of the deceased should not speak the truth.  In  any event, he and his family members were the only persons  who could have deposed about the treatment meted out to the  deceased.  All of them have denied the suggestion that the  appellant or his mother-in-law treated the deceased with  cruelty.  The fact that these witnesses have been declared  hostile by the prosecution, does not result in the automatic  rejection of their evidence.  Even the evidence of a hostile  witness if it finds corroboration from the facts of the case may  be taken into account while judging the guilt of an accused.  In  any event, if their evidence is kept out of consideration, there is  no other evidence to prove the prosecution allegation of cruelty  and harassment meted out to the deceased.  Having regard to  the inconsistency in the two dying declarations we do not find it  safe to act solely on them to convict the appellant, and for that  reason even accused No.2, the mother of the appellant who has  since served out her sentence.

       In the facts of this case we find that the prosecution has  failed to prove the commission of the offence under Section  498-A I.P.C.  Accordingly, we allow this appeal and acquit the  appellant of the charge under Section 498-A I.P.C.  Since the  case of accused No.2 Smt. Gangamamba, mother of the  appellant herein also stands of the same footing, we also record  an order of acquittal in her favour, even though her special  leave petition was dismissed and she has undergone the  sentence imposed against her.  This appeal is accordingly  allowed.  The bail bonds furnished by the appellant are  discharged.