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CASE NO.: Appeal (crl.)  920 of 1997

PETITIONER: Nallam Veera Stayanandam & Ors.          

RESPONDENT: The Public Prosecutor, High Court of A.P.  

DATE OF JUDGMENT: 24/02/2004

BENCH: N Santosh Hegde & B P Singh.

JUDGMENT: JUDGMENT

SANTOSH HEGDE, J.

       The appellants before us were charged of offences  punishable under section 304B and 498A IPC and were  sentenced to undergo RI for a period of 7 and 2 years  respectively by the by the Sessions Judge, East Godavari  District at Rajahmundry, Andhra Pradesh. Said conviction and  sentence of the appellants came to be confirmed by the High  Court of Judicature, Andhra Pradesh at Hyderabad by the  impugned judgment. Now they are in appeal before us.  Prosecution case necessary for disposal of this appeal is as  follows :         The first appellant before us is the son of appellant Nos.2  and 3 while appellant No.2 is the husband of appellant No.3.  The first appellant was married to one Aruna Kumari which  took place on 18.5.1990. It is the prosecution case that Aruna  Kumari was the daughter of the sister of A-1. Thus, in reality  Aruna Kumari had married her own maternal uncle. It is the  further case of the prosecution that the appellants were  constantly making demand from the parents of Aruna Kumari  which, inter alia, included 1/3rd share in a house belonging to  the parents of Aruna Kumari. Thus, the appellants were  constantly harassing said Aruna Kumari. The prosecution in  support of its case relating to harassment relied upon Ex. P-4 to  P-6 \026 letters written by Aruna Kumari between 12th May and 5th  August, 1991. Prosecution also relies upon a Panchayat Ex. P-8  which took place and an agreement Ex. P-9 executed by the  accused 1 and 2 undertaking to look after Aruna Kumari  properly and not to harass her. It is the further case of the  prosecution that on 12.7.1992 at about 3 p.m. deceased doused  herself with kerosene and set herself afire due to which she  suffered severe burn injuries. She was then taken to  Government Hospital, Kothapeta, where noticing her condition  the doctor sent a requisition to the Munsif Magistrate to make  arrangements to record her dying declaration. Consequent to  this request the Munsif Magistrate, PW-13 proceeded to the  Government Hospital and recorded the dying declaration Ex. P- 28 at about 5.30 p.m. He states that before recording he asked  the opinion of the doctor PW-10 whether the patient was in a fit  condition to make a declaration and on being told that she was  in a fit condition, he started recording her declaration. He states  that while recording the said statement, he asked the Police and  others attending on the patient to leave the room and he  recorded her statement in a question and answer form. A  perusal of this document Ex. P-28 shows that the deceased  stated that she suffered the burn injuries accidentally because of

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a stove burst while she was preparing tea. There is nothing in  this dying declaration to indicate even remotely that she  committed suicide.          Soon after this dying declaration was recorded, PW-11  who was then working as a Head Constable in Kothapeta Police  Station, having received an intimation from the hospital,  proceeded to the hospital and recorded another statement of the  deceased marked as Ex. P-25. This statement also contains a  certificate of PW-10 as to the condition of the patient to make a  declaration. As per this dying declaration, the deceased stated  that on being unable to bear the dowry demand and harassment  meted out by her husband and in-laws, she poured kerosene on  herself and set herself ablaze, consequent to which she suffered  burn injuries. From the record it is seen that Aruna Kumari died  at about 7.30 p.m. on the same day. During the course of  investigation the prosecution examined nearly 14 witnesses out  of whom PWs.1 to 5 and 7 speak to the demand of dowry made  by the appellants as also the harassment meted out to the  deceased. Prosecution has also produced Ex. P-4 to 7 -- letters  written by the deceased to her parents narrating the nature of  dowry demand as also the harassment. Ex. P-8 is a  Memorandum drawn up by the Panchayatdars calling upon the  appellants to give an undertaking to treat the deceased properly.  Ex. P-9 is an undertaking given by A-1 and A-2 to look after  the deceased properly. It is on the basis of the above evidence  collected during the course of investigation the appellants were  charged for offences as stated above in the Court of District &  Sessions Judge, Rajahmundry who as per his judgment dated  30.3.1994 convicted all the accused persons for offences  punishable under sections 304B and 498A IPC. The said  conviction and sentence came to be confirmed by the High  Court of Judicature, Andhra Pradesh at Hyderabad by the  impugned judgment and against which the appellants herein  preferred a SLP. When the said petition came up before the  Court on 26.11.1996, this Court dismissed the petition of the  first appellant herein while notice confined to the petition of  appellant Nos.2 and 3 alone was issued. However,  subsequently, by entertaining a review petition filed by the first  appellant as per its order dated 29.9.1997, this Court granted  leave in regard to the petitions of all the three appellants, hence,  all the 3 appellants are now before us in this appeal.         In this appeal, Mr. P S Narasimha, learned counsel  appearing for the appellants, submitted that both the courts  below erred in rejecting the first dying declaration Ex. P-28 on  unsustainable grounds and further erred in placing reliance on  the subsequent dying declaration Ex. P-25 recorded by a Police  official which gave a different version. He also submitted that  the courts below erred in finding corroboration to the contents  of the dying declaration Ex. P-25 from the evidence of the  prosecution witnesses. He submitted that a dying declaration  recorded by a Magistrate which is in conformity with the  requirements of law, should always be preferred to an extra- judicial dying declaration made to a Police Officer and that too  subsequent to the recording of the first dying declaration.  Learned counsel pointed out if the contents of Ex. P-28, the  dying declaration made to the Munsif Magistrate are  unimpeachable and if the court is satisfied, reliance can safely  be placed on the contents of the said dying declaration. Any  amount of evidence to the contrary could not diminish the value  of such dying declaration. He submitted the fact that the  deceased  died of accidental burns is not only spoken to by her  in unequivocal terms, the same is also supported by the entries  made by the doctor, PW-10 in the information sent by him to  the Police as also in the accident register Ex. P-20 and 21 which  were entries and information made prior to Ex. P-28 which also

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shows that the deceased had suffered accidental burns. He  submitted that there was a dispute between the families of the  deceased and the appellants and all the witnesses who have  spoken about the harassment or demand for dowry are  interested persons whose evidence cannot be relied upon to  discard the statement of the deceased herself as to the cause of  her death.         Mr. G. Prabhakar, learned counsel appearing for the  State, very strongly supported the judgments of the two courts  below and submitted that there is hardly any room for  interference with the well-considered judgments of the two  courts below. He submitted that there is no law which makes a  dying declaration recorded by a Police official either  inadmissible or, in any way, lesser in evidentiary value. It is his  submission that courts will have to weigh the evidentiary value  of these two dying declarations on their merit and if there is  contradiction between the two, either reject both or choose one  which is more acceptable for its evidentiary value. In the instant  case, he submitted that the evidence produced by the  prosecution shows that right from the beginning the appellants  have been making undue demand for dowry and have also been  harassing the deceased both physically and mentally which is  amply evidenced by the documentary evidence as well as the  oral evidence produced by the prosecution. In such a case a  dying declaration which is in conformity with the said line of  evidence produced by the prosecution should be accepted  instead of the one which is contrary to other acceptable  evidence produced in the case.         We have heard learned counsel and also perused the  records. It is true from the evidence led by the prosecution it  has been able to establish that the appellants were demanding  dowry which was a harassment to the deceased. It is also true  that the death of the deceased occurred within 7 years of the  marriage, therefore, a presumption under section 113B of the  Evidence Act is available to the prosecution, therefore, it is for  the defence in this case to discharge the onus and establish that  the death of the deceased in all probability did not occur  because of suicide but was an accidental death.         It is for the above purpose, learned counsel for the  appellants has strongly  relied on the dying declaration Ex. P-28  which according to him, is free from all blemish and is not  surrounded  by any suspicious circumstances. We are of the  opinion that if the contents of Ex. P-28 can be accepted as being  true then all other evidence led by the prosecution would not  help the prosecution to establish a case under section 304B IPC   because of the fact that even a married woman harassed by  demand for dowry may meet with an accident and suffer a  death which is unrelated to such harassment. Therefore, it is for  the defence in this case to satisfy the court that irrespective of  the prosecution case in regard to the dowry demand and  harassment, the death of the deceased has not occurred because  of that and the same resulted from a cause totally alien to such  dowry demand or harassment. It is for this purpose the  appellants strongly place reliance on the contents of Ex. P-28,  therefore, we will have to now scrutinise the circumstances in  which Ex. P-28 came into existence and the truthfulness of the  contents of the said document. It is the prosecution case itself  that on the fateful day at about 3’O clock, the deceased suffered  severe burn injuries and she was brought to the Government  hospital at Kothapeta. As per the evidence of PW-10 the doctor  when she was admitted to the hospital, he sent an intimation to  the Police as per Ex. P-21 and also made an endorsement in Ex.  P-22, the accident register. In both these documents, he had  noted that the deceased suffered accidental burn injuries due to  stove burst. It is not the case of the prosecution that this entry

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was made by the doctor at the instance of any one of the  appellants. At least no suggestion in this regard has been put to  the doctor when he was in the witness box. As a matter of fact,  there is considerable doubt whether any of the appellants was  present at the time when the deceased was brought to the  hospital and was first seen by the doctor PW-10. On the  contrary, according to the doctor, a large number of relatives  other than the appellants were present at that point of time when  the deceased was brought to the hospital, therefore, it is  reasonable to infer that the information recorded by the doctor  in Ex. P-21 and 22 is an information given to the doctor either  by the victim herself or by one of the relatives present there,  who definitely were not the appellants. From the evidence of  this doctor, we notice that anticipating the possible death he  sent a message to the Munsif Magistrate to record a dying  declaration and the said Magistrate PW-13 came to the hospital  immediately and after making sure that all the relatives and  others were sent out of the ward and after putting appropriate  questions to know the capacity of the victim to make a  statement and after obtaining necessary medical advice in this  regard, he recorded the dying declarations which is in question  and answer format. It is in this statement the deceased  unequivocally stated that she suffered the injuries accidentally  while preparing tea. There has been no suggestion whatsoever  put to this witness when he was in the box to elicit anything  which would indicate that this statement of the deceased was   either made under influence from any source or was the  statement of a person who was not in a proper mental condition  to make the statement. From the questions put by the Munsif  Magistrate, and from the answers given by the victim to the  said questions as recorded by the Munsif Magistrate we are  satisfied that there is no reason for us to come to any conclusion  other than that this statement is made voluntarily and must be  reflecting the true state of facts. The trial court while  considering this dying declaration seems to have been carried  away by doubting the correctness and genuineness of this  document because of other evidence led by the prosecution  thus, in our opinion, erroneously rejected this dying declaration  which is clear from the following finding of the trial court in  regard to Ex. P-28 : "Her statement made to the Magistrate  which is at Ex.P-28 has been demonstrated to be an incorrect  statement of fact and it appears that in the presence of the 3rd  appellant, she made the statement that from the burning stove  her sari caught fire while she was preparing tea." We find  absolutely no basis for the two reasons given by the trial court  for coming to the conclusion that the deceased’s statement  under Ex. P-28 is an incorrect statement. The court came to the  conclusion that this statement must have been made in the  presence of the 3rd appellant, a fact quite contrary to the  evidence of PWs.10 and 13. On the contrary, the Munsif  Magistrate specifically states that he asked everyone present  and who were unconnected with the recording of the statement,  to leave the room This has not been challenged in the cross- examination. Therefore, in our opinion, this part of the  foundation on which the trial court rejected Ex. P-24 is non- existent. It is also seen from the above extracted part of the  judgment of the trial court that it held that it "has been  demonstrated to be an incorrect statement of fact". For this also,  we find no basis. If the trial court was making the second dying  declaration as the basis to reject the first dying declaration as  incorrect then also in our opinion, the trial court has erred  because in the case of multiple dying declarations each dying  declaration will have to be considered independently on its own  merit as to its evidentiary value and one cannot be rejected  because of the contents of the other. In cases where there are

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more than one dying declaration, it is the duty of the court to  consider each of them in its correct perspective and satisfy itself  which one of them reflects the true state of affairs.              The trial court in its turn while considering Ex. P-28  observed thus : "I do not want to give much importance to the  dying declaration recorded by PW.13. The deceased out of  confusion or live (sic) and affection towards her husband and  in-laws, who are no other than the grand parents might have  stated so." With respect to the learned Judge, this finding in  regard to Ex.P-28 is based on inferences not based on record.  We have already noticed that none of the accused was present  at the time Ex. P-28 was recorded. That apart, we fail to  understand if the finding of the trial court that Ex. P-28 came  into existence because of love and affection towards her  husband and in-laws, is correct then why did the deceased about  10 minutes later implicate the very same persons in Ex. P-25 of  having led her to commit suicide. In our opinion, unless there is  material to show that the statement as per Ex. P-28 is given  either under pressure of the accused or is a statement made  when the victim was not in a proper state of mind or some such  valid reason, the same cannot be rejected merely because it  helps the defence. We have already observed even a harassed  wife can get burnt accidentally in which case her death cannot  be attributed to harassment so as to attract section 304B IPC.           Having noticed the findings of the two courts below in  regard to Ex. P-25, we will now consider the dying declaration  recorded by PW-11 as per Ex. P-25. This statement came into  existence about 10 minutes after Ex. P-28 was recorded by the  Munsif Magistrate. We have already expressed our doubt as to  the need for recording this statement when the Munsif  Magistrate on a request made by the doctor had already  recorded a dying declaration as per Ex. P-28. It has come on  record that when PW-11 recorded this statement, he did not  take the precautions which the Munsif Magistrate took in  sending the relatives of the victim out of the room. He also did  not put preliminary questions to find out whether the patient  was in a fit state of mind to make the said statement. It is to be  noted here that the doctor in Ex. P-25 only states that the patient  is conscious. In the said statement, of course, the victim had  stated that she set fire to herself being unable to bear the  harassment meted out to her by her husband and in-laws. This  part of the statement in Ex. P-25 directly contradicts has earlier  statement made to the Munsif Magistrate as per Ex. P-28. Ex.  P-28 is a document which exculpates the accused person of an  offence under section 304B IPC. There is no reason to  disbelieve the contents of Ex. P-28 merely because it is not in  conformity with the prosecution case as to the harassment  meted out to the victim. The courts will have to examine the  evidentiary value of Ex. P-28 on its own merit and unless there  is material to show that the statement made in P-28 is inherently  improbable and the same was made by the victim either under  pressure from outside source or because of her physical and  mental condition, the same cannot be rejected as untrue or  unreliable. The Magistrate by the preliminary questions had  satisfied himself that the victim was in a fit condition to make  the statement. In this background, we find no reason why Ex. P- 25 which was recorded by a Head Constable without following  the proper procedure should be given preference. The courts  below, in our opinion, have fallen in error in rejecting Ex. P-28  and preferring to place reliance on Ex. P-25; more so in the  background of the fact that no suggestion whatsoever has been  made either to the Munsif Magistrate or to the doctor as to the  correctness of Ex. P-28. Per contra, a specific suggestion has  been made to PW-11 the Head Constable that he had implicated  the accused persons in Ex. P-25 at the instance of the relatives

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of the deceased and her thumb impression was taken  subsequently. Of course, he has denied this suggestion. Be that  as it may, the fact that Ex. P-25 came into existence a few  minutes after Ex. P-28 and was recorded without taking  necessary precautions by a Police Officer, we think it more  appropriate to place reliance on Ex. P-28 rather than on Ex. P- 25. If that be so, the death of the deceased will have to be  related to her having suffered burn injuries accidentally and  succumbed to the same. We are aware that since death of Aruna  Kumari in this case occurred within 3 years of her marriage, a  presumption under section 113B of the Evidence Act is  available to the prosecution, but since we have accepted the  contents of Ex. P-28 as true, that presumption stands rebutted  by the contents of Ex. P-28. In such a case unless the  prosecution is able to establish that the cause of death was not  accidental by evidence other than the dying declarations, the  prosecution case under section 304B IPC as against the  appellants must fail.          The above finding of ours, however, will not exonerate  the appellants of the charge under section 498A. We have  noticed from the evidence of PWs.1 to 5 and 7 as also from Ex.  P-4 to 9 that the prosecution has established frequent demands  for dowry as also harassment of the victim because of the non- payment of dowry. In this regard, we are in agreement with the  findings of the two courts below, though we have come to the  conclusion that the same finding would not assist the  prosecution to base a conviction under section 304B. In our  opinion the material produced by the prosecution in regard to  the demand for dowry and harassment is sufficient to base a  conviction under section 498A IPC. Hence while allowing this  appeal and setting aside the conviction and sentence imposed  by the two courts below for an offence punishable under section  304-B IPC, we confirm the sentence imposed by the courts  below for an offence punishable under section 498A IPC.           We are told appellants are on bail. Their bailbonds shall  stand cancelled. They shall serve out the balance of sentence, if  need be. Remission for the sentence already served, if any, shall  be given. The appeal is partly allowed.