Andhra HC (Pre-Telangana)

Bommidi Rajamallu vs State Of Andhra Pradesh on 29 December, 2000

Equivalent citations: 2001(1)ALD(CRI)337, 2001(1)ALT(CRI)193, 2001CRILJ1319

Author:
Vaman Rao

Bench:
Vaman Rao

JUDGMENT

Vaman Rao, J.

1. This appeal is directed against the judgment in S.C. No. 590/1993, dt. 28-2-1995 on the file of the I Additional Metropolitan Sessions Judge, Hyderabad, in which the appellant-accused has been convicted for the offences under Sections 498-A and 306, I.P.O., and sentenced to imprisonment for a period of five years and to pay a fine of Rs. 200/- and imprisonment for a period of two years and to pay a fine of Rs. 100/- respectively with appropriate sentence in default of payment of fine and both sentences have been directed to run concurrently.

2-3. The case of the prosecution may be stated briefly as follows :

The deceased, Shiva Kumari is the daughter of P.W. 1. She was married to the accused eight years prior to her death. She had a son and two daughters through the accused. The marital life went on happily for six years after the marriage. Thereafter, the accused started quarrelling with the deceased-Shiva Kumari and used to beat her in a drunken state. The deceased has been informing of this conduct of the accused to her parents and elder brother from time to time. The elders advised the accused to mend himself. While so, on 29-1-1993 at about 7.30 p. m., the accused went to his house in a drunken state, abused and beat the deceased. She questioned him about his drunkenness and insisted him not to drink. Unable to bear his torture, she poured kerosene on her and set herself ablaze. On information, her mother, P.W. 1 and her brother, P.W. 2 went to her house and found the deceased in flames. They shifted her to the Osmania General Hospital. On the next day at about 3.00 a.m. she succumbed to her injuries. While alive, her statement was recorded by the Sub-Inspector of Police, Mangalhot Police Station and on the basis of the first information report Cr. No. 7/93 was registered for offence under
Section 498-A
, I.P.C. After the death of Shiva Kumari the Section of law was altered under Ex. P-17 alteration memo, by adding
Section 306
, I.P.C., and the police investigated the case and filed the charge-sheet. During the trial, P.Ws. 1 to 14 have been examined and Exs. P-1 to P-18 and M.Os. 1 to 5 have been marked. The accused has not chosen to adduce any evidence. When examined under
Section313
, Cr. P.C., the accused denied the allegation made against him. Based on the evidence, the learned Sessions Judge found the accused guilty for the offences under
Sections 498-A
and
, I.P.C., and sentenced him as mentioned above. It is this conviction and sentence, which is challenged now in this appeal.

4. The learned counsel for the appellant contends that the witnesses P.W. 1, the mother, P.W. 2, the brother, P.W. 3, another brother, P.W. 4, a relative, P.W. 5, another relative and P.W. 6, a neighbour, had deposed about the alleged harassment and ill-treatment of the deceased on the part of the accused. But their evidence is very vague and they do not claim to have been the actual witnesses to the incident of harassment or ill-treatment. P.W. 7, the sister of the deceased, has not supported the prosecution case. The contention is that the only evidence, which can be relied on by the prosecution, are the dying declaration recorded by the S.I. of Police under Ex. P-15 and the dying declaration recorded by the Judicial First Class Magistrate under Ex. P-5. It is contended that the dying declarations do not get corroborated from the other evidence on record and as such the learned Sessions Judge erred in acting upon the dying declarations.

5. On the other hand, the learned Public Prosecutor contends that in both the dying declarations the deceased had given very specific and categoric evidence as to harassment and ill-treatment by the accused and the other evidence on record corroborates it and as such the findings recorded by the learned Sessions Judge are correct and do not deserve to be disturbed.

6. The question that arises for consideration is whether the evidence on record establishes that the accused has subjected the deceased to cruelty within the meaning of
Section 498-A
, I.P.C., and as such whether the offence under
Section 498-A
has been proved. The second question is whether on the basis of the facts proved, whether the offence under
Section 306
, I.P.C., as to abetment of suicide has been established.
Section 498-A
, I.P.C., is extracted below:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman, to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

7. It would thus be seen that for establishing an offence under
Section 498-A
the prosecution is required to establish that the wife was subjected to cruelty by the husband or his relative. As can be seen for the purpose of this Section, any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman shall be considered as cruelty.

8. In this case, in the dying declaration recorded by the Metropolitan Magistrate, the deceased has stated about her husband as extracted below, "daily drinks arrack abuses me in filthy, language and beat me. Today also drank and abused me and beat me. I insisted him not to drink. He did not stop. So I am unable to bear his torture. I got myself set fire by pouring kerosene on me, thus I got ablazed like this". Nothing has been pointed out on behalf of the accused as to why this dying declaration cannot be accepted. Earlier, on information of the incident, the S.I. of Police went to the hospital and recorded the statement of the deceased, on the basis of which he registered the case against the accused. That statement, it contains a few more details. The deceased stated, "Since my marriage my husband is addicted to drink, used to come home in drunken state, torture me, abuse me and beat me. He used to spend more money on drinks. He previously without hearing my words used to abuse me and beat me. Several times, unable to bear the torture and thought of dying. Today, i.e., on 29-1-1993 my husband Rajamallu came in drunken state abused me and attempted to beat me. When I asked him that why you are coming in drunken state and why you are doing like this? For that he abused me saying that it is my will, are you earning the money, also abused me that he do not bother if I live or die, and asked me to die.

9. The learned counsel for the appellant-accused contends that this dying declaration must be deemed to be at variance with the dying declaration recorded by the Metropolitan Magistrate under Ex. P-5 inasmuch as it mentions about the accused having stated something about not being bothered if the deceased died or lived. At any rate, as far as the statement of the deceased in her dying declarations that the accused used to come home in a drunken state and used to beat her and abused her, consistently in both the dying declarations this fact has been stated by the deceased. Even if the other witnesses P.Ws. 1 to 4 and 6 have not been the eye-witnesses to the acts of ill-treatment and torture, the evidence of the mother, P.W. 1 does go to show that the deceased has been visiting her mother and informing her about the behaviour of the accused. P.W. 4, a neighbour, though admitted that he had not actually witnessed the quarrel between the deceased and the accused, at the instance of the mother he used to advise them. But he stated that whenever the father of the deceased used to come and complain about the accused, he used to call the accused and admonish him. Thus, the evidence on record is consistent with the allegations made by the deceased in her dying declarations in respect of the conduct of the accused that he was in the habit of coming home in a drunken state and abuse and beat her. On this evidence, there is no reason to discard the dying declarations of the deceased on the aspect that the accused used to get drunk and beat her and abuse her consistently. These acts attributed to the accused constitute cruelty within the meaning of
Section 498-A
, I.P.C., and in view of this the findings of the learned Sessions Judge that the prosecution has succeeded in proving the offence under
Section 498-A
, I.P.C., and his conviction for the said offence must be held to be based on adequate evidence and in accordance with law.

10. However, the learned counsel for the appellant contends that even assuming that the facts as stated by the deceased in the dying declaration under Ex. P-5 are true they do not satisfy the requirements of
Section 306
, I.P.C., for recording conviction of the accused for the said offence. It is pointed out by the learned counsel for the appellant that in Ex. P-5, the dying declaration recorded by the Judicial Magistrate of First Class, the deceased has not stated anything about the accused having told her that he would not bother whether she lived or died and asked her to die. But these words were attributed to the accused in Ex. P-15 statement recorded by the S.I. of Police. Considering this omission in Ex. P-5 it does not appear safe to rely in totality the version given in Ex. P-15. Thus, if those words attributed to the accused that he did not bother if the deceased lived or died and asked her to die are ignored, what remains is the conduct of the accused getting home drunk frequently, abusing the deceased and beating her. In fact, in Ex. P-5, the deceased specifically mentioned that what led her to commit suicide was that she has been urging the accused to stop drinking, but the fact that he did not heed her words and continued her torture became unbearable to her and as such she set herself ablaze. Mere ill-treatment like abuse and beating in a state of intoxication on the part of the accused cannot constitute an act amounting to abetting the deceased to commit suicide.

11.
In the case of
Mahendra Singh v. State of Madhya Pradesh
, 1996 Cri LJ 894 : (1995 AIR SCW 4570) the Supreme Court held on the facts in the case that the ingredients of abetment as defined under
Section 107
, I.P.C., were attracted to the statement of the deceased. The statement in the dying declaration
in that case
was as follows :

As my mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.

12. The Supreme Court held
in that case
that the attribution of these acts to the accused-husband does not constitute his abetting the commission of suicide by the deceased-wife. As stated above, in this case also in the dying declaration (Ex. P-5), the only allegation against the appellant-accused is that he used to come to the house in a drunken state, used to beat her and abuse her and that when she asked to stop drinking he did not stop drinking.
These acts attributed to the accused do not bring his acts within the meaning of abetting an offence to commit suicide as contemplated under Section 306, I.P.C.

13. The learned Public Prosecutor, however, urges that the statement of the deceased in Ex. P-15 shows that the accused has abetted the commission of suicide by the deceased as observed above. This statement is inconsistent with the statement made in Ex. P-5, dying declaration recorded by the Judicial Magistrate of First Class. The words attributed to the deceased that the accused told that he did not bother if she lived or died and asked her to die appear out of context. Even if such statement has been made it must be construed that the accused merely retorted to what the deceased has stated in protest against his conduct in coming home in a druken state and abusing and beating her. There is nothing to show that the accused intended to aid the deceased in committing suicide or intended to lead her to commit suicide. Thus, from the facts of the case it has to be held that the offence under
Section 306
, I.P.C., has not been made out.

14. In the result, the appeal is partly allowed. The conviction of the appellant for the offence under
Section 306
, I.P.C., and the sentence of imprisonment and fine imposed for the said offence are set aside. The conviction recorded by the learned Sessions Judge against the accused for the offence under
Sec. 498-A
is confirmed. In regard to the sentence, it is urged by the learned counsel for the appellant that there are certain mitigating circumstances, which justified reduction of the sentence. It is firstly pointed out that even according to the evidence in the dying declaration and also the evidence of the mother and brothers the allegation against the accused is that he was ill-treating the deceased only when he was drunk and that, on the other hand, there is material to show that when he was not drunk he was treating the deceased affectionately. It is also pointed out that even according to the mother of the deceased, P.W. 1, it is the accused who has been looking after his tender aged children even after the incident.

15. Considering the circumstances, I think the ends of justice would be met if the appellant-accused is sentenced to imprisonment for one year instead of two years. In the result, while confirming the conviction of the accused for the offence under
Section 498-A
, it is directed that he shall undergo imprisonment for a term of one year and shall pay a fine of Rs. 100/-, and in default, shall undergo imprisonment for two months. If the appellant-accused has already been in jail for a period of one year including the period during trial, he shall be released from jail.