NOONE RAMESH vs STATE OF A.P

Andhra High Court
THE HONOURABLE SRI  JUSTICE B.SESHASAYANA REDDY              
CRIMINAL APPEAL NO : 1782 of 1998    

NOONE RAMESH   Vs. STATE OF A.P. REP. BY P.P.   

Counsel for the appellant : SRI.C.PADMANABHA REDDY     

Counsel for the Respondent  : PUBLIC PROSECUTOR     

:JUDGMENT:  
1.      This Criminal Appeal is directed against the judgment dated    15-12-1998
passed in S.C.No.9 of 1996 on the file of Ist Additional Sessions Judge, Ranga
Reddy District, whereby and where under the learned Ist Additional District and
Sessions Judge found accused-Noone Ramesh guilty for the offences under sections 
498A and 306 IPC and convicted him accordingly and sentenced him to suffer RI
for a period of two years and pay a fine of Rs.2,000/- in default to suffer SI
for three months for the offence under section 498A IPC; and RI for a period of
five years and fine of Rs.2,000/-, in default to suffer SI for three months for
the offence under section 306 IPC.

2.      The prosecution case, in brief, is :

        P.W.1-Smt.Tatipally Yasodamma is mother, P.W.2-Guparapu Sathyalaxmi is    
sister and P.W.3-Tatipally Prakash is brother of Leelavathi (hereinafter
referred to as the deceased). The deceased was married to accused-Noone Ramesh  
on 3.4.1991. Two children viz., Raju and Rajesh were born to her out of the
wedlock. The accused and brother of the deceased did borewell business for about
an year and disputes arose between them in the said business and thereby both
the families distanced. The accused was objecting the deceased from speaking to
her brothers and mother. As and when the deceased spoke to her mother or
brothers, accused resorted to beat her. It is further alleged that a day prior
to the occurrence the accused went to Nagaram village for which the deceased
raised objection and thereupon the accused beat her. The conduct of the accused
made her life miserable. She being not able to bear the cruel treatment in the
hands of the accused doused herself with kerosene and set fire on 25.5.95 at
about 6 A.M. She was shifted to Osmania General Hospital, Hyderabad for
treatment. P.W.10-B.Narasimulu, CI of Police, Saroornagar Police Station
received intimation from Osmania General Hospital on 25.5.95 at about 6.45 hours
about the admission of the deceased. He directed P.W.9-K.Rambhupal Rao, SI of 
Police, Saroornagar to proceed to Osmania General Hospital and record the
statement of the deceased. Accordingly, P.W.9 rushed to Osmania General Hospital 
and recorded the statement of the deceased, which was exhibited as Ex.P.8.
Basing on Ex.P.8 statement of the deceased, P.W.10 registered a case in
Cr.No.238 of 1995 under section 498A IPC and issued Ex.P.9 FIR. He inspected the
scene and seized a plastic mug and half burnt petty coat under the cover of
Ex.P.10 panchanama. P.W.8-C.Vijaya Sarathi Acharyulu, JFCM, Hyderabad (W & S),    
R.R. District received requisition from the Sub-Inspector of Police, Saroornagar
Police Station to record the dying declaration of the deceased. Ex.P.6 is the
requisition. Pursuant to Ex.P.6 requisition, he proceeded to Osmania General
Hospital and recorded dying declaration of the deceased in the presence of a
duty Doctor who certified the fit state of mind of the deceased when her
statement was being recorded. Ex.P.7 is the dying declaration. On the same day
at about 8 P.M. the deceased was shifted to Kamineni Hospital, Hyderabad, for
better treatment where she succumbed to her burn injuries while undergoing
treatment on 29.9.95 at about 8.30 P.M. On receipt of death intimation P.W.10
filed Ex.P.11 memo of alteration of section of law. He sent requisition to the
Mandal Revenue Officer to conduct inquest over the dead body of the deceased.
P.W.7-N.Gyaneshwar Rao, Mandal Revenue Officer, Uppal, conducted inquest on the  
dead body of the deceased at Kamineni Hospital in the presence of P.W.6. Ex.P.5
is the inquest report. After the inquest the dead body was subjected to post
mortem examination. P.W.11-Dr.J. Surender Reddy, Assistant Professor of Forensic
Medicine, Osmania Medical College, conducted post mortem examination on the dead  
body of the deceased on 31.5.95 and issued Ex.P.12 post mortem certificate
opining that the deceased died of burn injuries. After completing investigation,
P.W.10 laid the charge sheet before the Additional JFCM, Hyderabad (E & N), R.R.
District. The learned Magistrate took the charge sheet on file as P.R.C.No.96 of
1995 and committed the case to the Sessions Division, R.R. District as the
offence under section 306 IPC is exclusively triable by a Court of Session. The
learned Sessions Judge took the case on file as S.C.No.9 of 1996 and made over
the same to the Ist Additional Sessions Judge, R.R. District for disposal
according to law. The learned Ist Additional Sessions Judge, on hearing the
prosecution and the accused, framed charges under sections 306 and 498A IPC, 
read over and explained the same to the accused, for which the accused pleaded
not guilty and claimed to be tried. To bring home the guilt of the accused for
the offences with which he stood charged, prosecution examined 11 witnesses and
proved 12 documents. The defence of the accused is one of total denial of the
case. The learned Ist Additional Sessions Judge, on appreciation of the evidence
brought on record and on hearing the prosecution and the accused, found the
accused guilty for the offences under sections 498A and 306 IPC and convicted
him accordingly and sentenced him as stated supra, by judgment dated 15.12.1998.
Hence, this Criminal Appeal by the accused.

3.      Heard Sri.C.Padmanabha Reddy, learned senior counsel appearing for the
appellant/accused and learned Additional Public Prosecutor appearing on behalf
of the State.

4.      Learned senior counsel submits that two dying declarations which have been
exhibited as Exs.P.7 and P.8 are not consistent and therefore no reliance can be
placed on any one of the two dying declarations and thus the conviction and
sentence of the appellant/ accused for the offences under sections 498A and 306
IPC is not legal and proper and the same is liable to be set aside. A further
submission has been made that mother, brother and sister of the deceased who
have been examined as P.Ws.1 to 3 have categorically stated that of there being
no disputes between the deceased and her husband/ accused and thus there was the 
reason for the appellant/accused to treat the deceased cruelly and in which case
the appellant/accused could not be made responsible for the death of the
deceased. In support of his submissions reliance has been placed on the
decisions of Supreme Court in GIRDHAR SHANKAR TAWADE v. STATE OF MAHARASHTRA1,              
LELLA SRINIVASA RAO V. STATE OF A.P.2 and SUSHIL KUMAR SHARMA v. UNION OF              
INDIA3.

5.      In the first cited decision, the Supreme Court held that though
corroboration for the dying declaration of the deceased is not essential as
such, but its introduction is otherwise expedient to strengthen the evidentiary
value of the declaration. Independent witnesses may not be available but there
should be proper care and caution in the matter of acceptance of the dying
declaration as a trustworthy piece of evidence. Para 17 of the judgment needs to
be noted and it is thus:
                ( 17 ) AS regards the core issue as to whether charges under
Sections 306 and 498-A of the Indian Penal Code are independent of each other
and acquittal of one does not lead to acquittal on the other, as noticed
earlier, there appears to be a long catena of cases in affirmation thereto and
as such further dilation is not necessary neither we are inclined to do so, but
in order to justify a conviction under the later provision there must be
available on record some material and cogent evidence. Presently, we have on
record two inconsistent versions of the brother and the cousin, as such no
credence can be attributed thereon – the documentary evidence (namely, those
three letters), in our view, falls short of the requirement of the Statute: Even
on an assumption of the fact that there is no contradiction in the oral
testimony available on record, the cousin goes to the unfortunate girls in-laws
place and requests the husband to treat her well – at best some torture and a
request to treat her well. This by itself would not bring home the charge under
Section 498-A. Demand for dowry has not seen the light of the day.
6.      In the second cited decision, inconsistency of the version of the deceased
in two dying declarations makes the court not safe to base the conviction of the
accused on the basis of the said dying declarations.
       
7.      In the third cited decision, the Supreme Court highlighted the difference
between the two sections i.e. Sec.306 and 498A IPC and observed that under
section 498A IPC cruelty committed by the husband or his relations drag the
women concerned to commit suicide and while under section 306 IPC suicide is
abated and intended. Paragraphs 9 and 10 of the judgment need to be noted and
they read as under:
       (9) CONSEQUENCES of cruelty which are likely to drive a woman to commit  
suicide or to cause grave injury or danger to life, limb or health, whether
mental or physical of the woman is required to be established in order to bring
home the application of Section 498a IPC. Cruelty has been defined in the
explanation for the purpose of Section 498a. It is to be noted that Sections
304b and 498a, IPC cannot be held to be mutually inclusive. These provisions
deal with two distinct offences. It is true that cruelty is a common essential
to both the sections and that has to be proved. The explanation to Section 498a
gives the meaning of cruelty. In Section 304b there is no such explanation
about the meaning of cruelty. But having regard to common background of these
offences it has to be taken that the meaning of cruelty or harassment is the
same as prescribed in the Explanation to Section 498a under which cruelty by
itself amounts to an offence.
(10) THE object for which Section 498a IPC was introduced is amply reflected in
the statement of Objects and Reasons while enacting Criminal Law (Second
Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number
of dowry deaths is a matter of serious concern. The extent of the evil has been
commented upon by the Joint Committee of the Houses to examine the work of the 
Dowry prohibition Act, 1961. In some cases, cruelty of the husband and the
relatives of the husband which culminate in suicide by or murder of the helpless
woman concerned, which constitute only a small fraction involving such cruelty.
Therefore, it was proposed to amend IPC, the Code of Criminal procedure, 1973
(in short the Cr. P. C. ) and the Evidence Act suitably to deal effectively
not only with cases of dowry deaths but also cases of cruelty to married women
by the husband, in-law and relatives. The avowed object is to combat the menace
of dowry death and cruelty.
8.      Learned Additional Public Prosecutor contends that Exs.P.7 and P.8 are
consistent to the fact that it was the appellant/accused who beat the deceased
on the previous day of occurrence and necked her out from the house and this
piece of circumstance is itself sufficient to draw an irresistible conclusion
that the deceased put an end to her life by setting fire to herself because of
cruelty on the part of the appellant/accused and for the reason of the
appellant/accused abating and instigating her to resort to such action.

9.      It is apposite to consider Sections 498A and 306 IPC which read as under:
          498A: Husband or relative of husband of a woman subjecting her to
cruelty- 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. Explanation –
For the purpose of this section cruelty means – (a) 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 (whether mental or
physical) of the woman; or (b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of failure by her
or any person related to her to meet such demand.
          306. Abetment of suicide- If any person commits suicide, whoever abets
the commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine.
10.     The expression cruelty has been defined for the purpose of Section
498AIPC. It is in two parts. The first part envisages the willful conduct on the
part of the husband or his relative towards the women which may likely to drive
the women to commit suicide or to cause grave injury or danger to life, limb or
health (whether mentally or physically). The expression willful conduct,
therefore, requires to be understood in conjunction with the other requirements
viz., the consequences of such a conduct on the wife. The second part
contemplates the harassment of the women which harassment shall be with a view 
to coarse the women or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of their failure to meet such
demand. Therefore, harassment must be accompanied by unlawful demand for  
property or valuable security. The conduct on the part of husband alone is not
sufficient but it should be accompanied by the necessary intention on the part
of the husband. In that view of the matter, the word willful gains much
consequence in the context.
11.      The basic purport of the statutory provision is to avoid cruelty which
stands defined by attributing a specific statutory meaning attached thereto as
noticed herein before. Two specific instances have been taken note of in order
to ascribe a meaning to the word cruelty as is expressed by the legislatures:
Whereas explanation (a) involves three specific situations viz., (i) to drive
the woman to commit suicide or (ii) to cause grave injury or (iii) danger to
life, limb or health, both mental and physical, and thus involving a physical
torture or atrocity, in explanation (b) there is absence of physical injury but
the legislature thought it fit to include only coercive harassment which
obviously as the legislative intent expressed is equally heinous to match the
physical injury : whereas one is patent, the other one is latent but equally
serious in terms of the provisions of the statute since the same would also
embrace the attributes of cruelty in terms of Section 498-A. The Supreme Court
in the first cited decision held that charges under section 306 and 498A IPC are
independent of each other and acquittal of the accused under section 306 IPC
would not entail acquittal under section 498A IPC.
12.     The prosecution examined 11 witnesses and proved 12 documents to bring 
home the guilt of the accused for the offences under sections 498A and 306 IPC.
All the material witnesses including mother, sister and brother did not support
the prosecution. The entire case rests on the dying declarations of the
deceased, which have been exhibited as Exs.P.7 and P.8. Ex.P.8 is the statement
of the deceased recorded by P.W.9 on 25.5.95 between 9.45 A.M. and 10.10 A.M. 
Ex.P.8 is the basis for registering a case in Cr.No.238 of 1995 against the
appellant/accused for the offence under section 498A IPC and women burns. Ex.P.7
is the dying declaration recorded by P.W.8-JFCM, Hyderabad (W & S), Hyderabad on 
the same day at 11 A.M.  In the first dying declaration she stated that
differences cropped up between her husband/appellant/accused and her brothers in
respect of bore well business since about an year and that there used to be
frequent bickering between them on that score and the appellant/accused resorted
to harass her physically and mentally whenever she conversed with her mother or
brothers. In the second dying declaration, she elaborates the incident occurred
a day preceding the occurrence. It is stated by her that the appellant/accused
beat her when she questioned him of her going to Nagaram village, he necked her
out from the house and subsequently permitted her to enter into the house since
she was drenched in rain. On the morning of the next day, she got dejected in
life and resorted to put an end to her life by setting fire to herself and
thereby sustained burn injuries.
13.     There is no inconsistency between the two dying declarations. The latter
dying declaration comprises elaboration of the incident preceding the date of
incident. Therefore, the 2nd cited decision has no application to the facts of
the case on hand.

14.     It is well settled that as a matter of law, a dying declaration can be
acted upon without corroboration. There is not even a rule of prudence, which
has hardened into a rule of law that a dying declaration cannot be acted upon
unless it is corroborated. The primary effort of the court has to be to find out
whether the dying declaration is true. If it is so, no question of corroboration
arises. It is only if the circumstances surrounding the dying declaration are
not clear of convincing, then the court may for its assurance look for
corroboration to the dying declaration vide STATE OF KARNATAKA V. SHARIFF4.    

15.     In KANAKSINGH RAISINGH RAV V. STATE OF GUJARAT5, the Supreme Court held          
that if a dying declaration is made voluntarily and truthfully by a person who
is physically in a condition to make such statement, there is no impediment in
relying such a declaration.

16.     A plain reading of the two dying declarations which have been marked as
Ex.P.7 and Ex.P.8 is sufficient to infer an irresistible conclusion that the
willful conduct of the appellant/accused drew the deceased to commit suicide.
Therefore, the conviction of the appellant/accused for the offence under section
498A IPC is legal and proper and the same is not required to be interfered.

17.     The next point that is to be considered is whether the offence under
section 306 IPC can be presumed as soon as such cruelty under section 498A IPC 
is proved?

18.     Abetment in Section 306 IPC has to be understood with reference to its
definition given in Section 107 IPC. While considering the scope of Section 107
IPC the Supreme Court in C.B.I.K. v. V.C.SHUKLA6, observed, in para 50 at page
1423 as follows:
        ….a person abets the doing of a thing when he does any of the acts
mentioned in the following three clauses:
i) Instigates that person to do that thing.
ii) Engages with one or more other person or persons in any conspiracy to, the
doing of that things.
iii) Intentionally aids, by any act or illegal omission, the doing of that
thing.

So far as the first two clauses are concerned it is not necessary that the
offence instigated should have been committed. For understanding the word aid
in the third clause it would be advantageous to see Explanation 2 in Section 107
IPC, which reads, thus:
         Whoever, either prior to or at the time of the commission of the act,
does anything in order to facilitate the commission thereof, is said to aid the
doing of that act. It is thus clear that under the third clause when a person
abets by aiding, the act so aided should have been committed in order to make
such aiding an offence……
Clauses (i) and (ii) extracted above do not apply to this case because no
instigation by or conspiracy between the petitioner and the other accused is
alleged by the prosecution. The third clause also is not attracted because no
aid was given by the petitioner to the deceased when she committed suicide.
Aiding suicide by a person can only be by positive acts of assisting in
procuring the material required for suicide like a person supplying rope or
other material for hanging, when a person expresses his desires to commit
suicide by hanging, or supplying weapon or material like drugs, poison, etc.,
when the person intending to commit suicide asks, such aid, or if a person
suggests the modes in which suicide can be committed like jumping into a river,
lake or well, etc., to a person who intends to commit suicide.
       
19.     In SAI RAM v. STATE OF U.P.7, the Supreme court held that in order to
constitute abetment, the abettor must be shown to have intentionally aided the
commission of the crime. It is clearly held that mere proof that the crime could
not have been committed without the interposition of the alleged abettor is not
enough compliance with the               requirement of Section 107 IPC.

20.      Under section 113A of the Indian Evidence Act when the question whether
the commission of suicide of a women has been abetted by her husband arises and
it is shown that she committed suicide within a period of seven years from the
date of marriage and her husband had subjected her to cruelty, the Court may
presume, having regard to all the other circumstances of the case, that such
suicide has been abetted by her husband. The explanation to this section states
that the word cruelty shall have the same meaning as in Section 498A IPC.

21.     The contention of the learned Additional Public Prosecutor is that as soon
as offence of cruelty is established with reference to Section 498A IPC, a
presumption under Section 113-A of the Evidence Act would arise and
automatically there should be a conviction under Section 306 IPC.

22.     In order to understand the scope of Section 113A of Indian Evidence Act,
it is necessary to note ABETMENT as defined  in Section 107 IPC:
        Abetment is constituted by
i) Instigating a person to commit an offence; or
ii) Engaging in a conspiracy to commit it; or
iii) Intentionally aiding a person to commit it.
The presumption under section 113A of Indian Evidence Act must naturally refer
to one of these three ingredients. In the present case there is no question of
conspiracy or aiding the suicide. The question that will remain is whether the
cruelty that is established under Section 498A IPC would lead to a presumption
that the accused had instigated the suicide under Section 107. There is no
evidence in this case that the appellant/accused telling the deceased to commit
suicide or to kill herself.

23.     As could be seen from Ex.P.7 dying declaration, the appellant/ accused, on
seeing the deceased in flames, covered her with a blanket to extinguish flames
and thereafter shifted her to hospital for treatment. Having regard to
surrounding circumstances, I am of the  view that the appellant/accused cannot
be said to have abated suicide of the deceased and in the sense that it cannot
be regarded as having instigated her to commit suicide. At the same time the
cruel treatment was definitely of the nature defined in Section 498A IPC and
therefore I have to come to the conclusion that he has committed an offence
punishable under section 498A IPC.

24.     For the foregoing reasons, this Criminal Appeal is allowed in part setting
aside the conviction and sentence of the appellant/accused for the offence under
section 306 IPC while confirming the conviction and sentence of the
appellant/accused for the offence under section 498A IPC. The bail bonds
furnished by the appellant/accused shall stand cancelled. He shall surrender
before the trial court to serve the reminder of sentence for the offence under
section 498A IPC.

1 AIR 2002 SC 2078 
2 AIR 2004 SC 1720 
3 2005 SCC (CRL) 1473 
4 2003 AIR SCW 600  
5 (2003) 1 SCC 73
6 AIR 1998 SC 1406 
7 AIR 1975 SC 125 

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