Supreme Court of India

Nallam Veera Stayanandam & Ors vs The Public Prosecutor, High Court Of A.P on 24 February, 2004

Equivalent citations: 2004 (2) SLT 266, AIR 2004 SUPREME COURT 1708, 2004 (10) SCC 769, 2004 AIR SCW 1160, 2004 AIR - JHAR. H. C. R. 1462, 2005 SCC(CRI) 606, (2004) 16 ALLINDCAS 841 (SC), 2004 (16) ALLINDCAS 841, 2004 (1) LRI 848, 2004 (2) ACE 579, 2004 ALL MR(CRI) 1115, 2004 (2) SCALE 659, (2004) 3 JT 18 (SC), 2004 (1) BLJR 826, 2004 (3) SRJ 533, (2004) 3 EASTCRIC 27, (2004) MATLR 359, (2004) 2 ALLCRIR 1282, (2004) 1 CHANDCRIC 255, (2004) 2 RECCRIR 132, (2004) 49 ALLCRIC 35, (2004) 1 CURCRIR 337, (2004) 1 DMC 373, (2004) 2 SUPREME 273, (2004) 2 ALLCRILR 512, (2004) 2 RAJ LW 201, (2004) 2 SCALE 659, (2004) 27 OCR 817, (2004) 18 INDLD 658, (2004) 2 CRIMES 279, (2004) 1 RECCRIR 939, (2004) SC CR R 941, 2004 CHANDLR(CIV&CRI) 405

Bench:
N Santosh Hegde
,
B P Singh

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  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
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
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
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
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
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.