Acquitted in 306 IPC and S.498A

Andhra High Court

Sangannagari Narasimulu
vs
State Of Andhra Pradesh … on 22 July, 2005

Equivalent citations: 2005 (2) ALD Cri 387, 2005 CriLJ 4168, I (2006) DMC 834

Author: P L Reddy
Bench: P L Reddy
JUDGMENT P. Lakshmana Reddy, J.

1. This is a Criminal Revision Case filed against the conviction and sentence recorded against the revision petitioner in S.C.No.47 of 1996 by the Assistant Sessions Judge, Sangareddy which was confirmed in Crl.A.No.41 of 1998 by the Additional Sessions Judge (Fast Track Court), Medak at Sangareddy.

2. The relevant facts in brief are as follows:

The Inspector of Police, Pathancheruvu Police Station filed this case against the revision petitioner and his parents arraying them as A-1 to A-3 respectively alleging that on 04.07.1994 at about 4.30 p.m. the revision petitioner’s wife late Smt. Sangannagari Mangamma committed suicide by hanging to a wooden beam in her residence on account of abetment and also harassment meted out to her in the hands of revision petitioner and his parents and therefore all the accused are liable for punishment under Sections 498-A and 306 I.P.C. On the said allegations, the learned Magistrate took the case on file and after observing all formalities committed the case to the Court of Session, Medak at Sagnareddy. The learned Sessions Judge took the case on file as SC 47 of 1996 and made over the same to the Assistant Sessions Judge, Sangareddy. The learned Assistant Sessions Judge framed the charges under Sections 498-A (ii) and 306 I.P.C. against A-1 to A-3, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

3. The learned Assistant Sessions Judge conducted trial and during the trial the prosecution examined PWs.1 to 14 and exhibited Exs:P-1 to P-8 and and marked M.O.1. All the accused described the incriminating evidence as false during their examination under Section 313 Cr.P.C. Their case is one of total denial. After considering the evidence adduced on behalf of the prosecution and the total denial of the accused, the learned Assistant Sessions Judge found A-2 and A-3 who are the parents of the revision petitioner not guilty of both the charges framed against them, but the learned Assistant Sessions Judge found A-1 guilty of both the charges and convicted him and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/- on each of the two counts.

4. Aggrieved by the said conviction and sentence, the revision petitioner preferred an appeal in Crl.A.NO. 41 of 1998 before the Sessions Judge who made over the same to the II Additional Sessions Judge (Fast Track Court), Medak at Sangareddy. The learned appellate Judge after due hearing found that the prosecution failed to prove the charge under Section 306 I.P.C. beyond reasonable doubt, but succeeded to prove the charge framed under Section 498-A I.P.C. Hence, the learned appellate Judge set aside the conviction recorded for the offence under Section 306 I.P.C. and confirmed the conviction recorded for the offence under Section 498-A I.P.C. The sentence of three years and payment of fine of Rs. 200/- for the offence punishable under Section 498-A I.P.C. was confirmed.

5. Aggrieved by the same, the present revision is filed by the revision petitioner contending that the Courts below erred in recording the conviction for the offence punishable under Section 498-A I.P.C. against the revision petitioner as the ingredients of the said offence are not made out by the prosecution. It is further pleaded that the Courts below erred in placing reliance on the highly interested and discrepant testimony of PWs.1 to 6 and that the lower court should have seen that PWs. 4, 5 and 8 did not support the case of the prosecution and that except the interested testimony of family members of deceased, there are no independent witnesses to speak about the alleged harassment. It is further pleaded that having acquitted the accused for an offence punishable under Section 306 I.P.C. the learned judge erred in convicting the revision petitioner for the offence punishable under Section 498- A I.P.C. and that at any rate the sentence is unduly severe.

6. During the course of hearing, the learned counsel for the revision petitioner reiterated the contentions raised in the grounds of revision. He further submitted that there is absolutely no legal evidence to prove the alleged harassment and that one of the neighbours of the accused where the deceased and the accused lived together was examined to speak about the alleged harassment and that even the evidence of P/Ws.2, 3, 6 and 7 who alone spoke about the alleged harassment is only hearsay evidence and that PW-1 is the village administrative officer who did not speak about any harassment and PWs.4 and 5 who are the sisters of the deceased did not support the case of the prosecution and that the prosecution relied only on the hearsay evidence which is not admissible and therefore the appreciation of evidence by the Courts below is perverse and hence the conviction and sentence passed by the Courts below are not sustainable in law and are liable to be set aside. In support of! his contention that the statements said to have been made by the deceased to PWs.2, 3, 6 and 7 are not admissible in evidence, he relied upon a decision of the Apex Court in Inderpal v. State of M.P., 2003 Supreme Court Cases (Cri) 1049 wherein in the Apex Court held that unless the statement of the deceased comes within the purview of Section 32(1) of the Evidence Act, it cannot be admitted in evidence. He also invited the attention of this Court to another decision of Gananath Pattnaik v. State of Orissa, 2002 Supreme Court Cases (Cri) 461 wherein it was held that the alleged statements made by the deceased to the witnesses to the effect that she was not treated well by her husband and her in-laws for non-fulfilment of balance dowry amount and also in respect of some other specific acts of ill-treatment, although admissible in respect of the offence punishable under Section 304-B I.P.C. by virtue of Section 32(1) of the Evidence Act, such statements are not admissible for the offence under Section 498-A I.P.C. He also invited the attention of this Court to the decision of a Division Bench of this High Court in G.M. Ravi @ Purushotham v. State of A.P.,2003(2) ALD (Crl.) 344 (AP) wherein the Division Bench followed the judgment of the Apex Court in Inderpal v. State of M.P. (1st supra). and held that the statements made by the deceased in respect of the alleged harassment prior to the date of her death do not come within the purview of Section 32 of the Evidence Act.

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7. On the other hand, the learned Public Prosecutor supported the conviction and sentence passed by the Courts below. He submitted that the decisions relied on by the learned counsel for the revision petitioners are not applicable to the facts of this case.

8. The point that arise for consideration is: Whether the conviction and sentence recorded by the Courts below for the offence punishable under Section 498-A I.P.C. are sustainable in law?

POINT:

9. The law is well settled that the High Court cannot interfere with the concurrent findings of the Courts below unless there is no legal evidence to support the findings of the Courts below or the appreciation of evidence by the Courts below is perverse and it resulted in miscarriage of justice. So it has to be seen whether in the instant case the findings of the Courts below are supported by legal evidence and if so, whether the appreciation of evidence by the Courts below is perverse.

10. PW-1(K. Madhukar Rao) is the Village Adminstrative Officer and his evidence is only to the effect that his village servant informed him that Mangamma committed suicide by hanging in the house of the accused and that he saw the dead body and then sent Ex:P-1 report to the police. The fact that Mangamma committed suicide is not in dispute and therefore the evidence of this witness is not of much assistance to the case of the prosecution to prove the charge under Section 498-A I.P.C.

11. PW-2 (K. Yadaiah) is the junior paternal uncle of the deceased. He stated that at the time of marriage of the deceased with the revision petitioner, 2 1/2 tolas of gold, cot and other articles were presented to the revision petitioner and that the revision petitioner and the deceased lived happily for about 2 years and they got a daughter and thereafter the revision petitioner asked the deceased to persuade her mother for the second marriage with her younger sister Shobha and he came to know about it through Mangamma, the deceased. He further stated that again the deceased informed him that A-1 was demanding one tola of gold and Rs. 10,000/- cash or in the alternative to see that Shobha is married to him. He further stated that he sent PWs.3 and 5 to the accused and they returned saying that the revision petitioner and his parents were demanding one tola of gold and Rs. 10,000/- or marriage with Shobha and that later the revision petitioner sent a word that Mangamma died by hanging. He stated that she committed suicide due to the above harassment by the accused. He stated that he performed the marriage of the deceased with A-1 after the death of his elder brother. The Courts below did not believe the evidence of PW-2 as PW-3 the mother of the deceased stated that PW-2 did not attend the marriage of her eldest daughter Laxmi due to disputes and that she does not remember whether PW-2 attended the marriage of Mangamma. Neither PW-3 nor PW-5 stated that PW-2 sent them to the house of the accused to enquire about the alleged harassment. Further, PW-2 could not give the name of sister of deceased correctly and for the said reasons the Courts below did not place reliance on the evidence of PW-2. Even otherwise, the evidence of PW-2 is only hearsay evidence and he has no personal knowledge about the alleged harassment. Hence, the Courts below rightly rejected the evidence of PW-2.

12. Coming to the evidence of PW-3 she is no other than the mother of the deceased. She stated that the deceased was married four years prior to her death and at the time of marriage she presented 2 1/2 tolas of gold, almirah, cot and other articles including wrist watch to A-1 and about two years thereafter, daughter was born to the deceased and till then they lived happily and that thereafter the revision petitioner demanded to bring one tola of gold or cash of Rs. 10,000/- and then the deceased came and told them about the demand by the accused and she expressed her inability to meet the demands of the accused and sent Mangamma back. She further stated that again Mangamma came back and told about the above demands of the accused and she again sent her back and later Mangamma committed suicide by hanging due to the harassment meted out by the accused. She further stated that the accused also asked Mangamma to see that her sister is married to the revision petitioner in second marriage.

13. As seen from the above said evidence, PW-3 is not a direct witness to the alleged harassment of the deceased by the accused either in respect of the demand for dowry or in respect of the second marriage with the sister of deceased. The source of her information is the information said to have been given by the deceased. In cross-examination she stated that when the revision petitioner and Mangamma visited her house, they were happy and that they were happy even after the birth of their daughter. The Courts below relied on the evidence of this witness though this witness is not a direct witness for the alleged harassment. She did not even state that she went to the house of the accused and questioned them as to why they were harassing the deceased either for the dowry or to persuade her to accept for the second marriage of A-1. The only source of information for this witness is the alleged information given by the deceased Mangamma. Even if it is assumed that the deceased Mangamma had informed her mother about the alleged harassment, the statement of Mangamma to her mother cannot be taken as gospel truth and the said statement is a very weak piece of evidence as the deponent is not subjected to cross- examination. Further such statement of the deceased made to her mother even if true, is not admissible in evidence. Admittedly, the statement is not in relation to the cause of death of the deceased in this case. When the said statement was not regarding the cause of her death, it does not come within the purview of Section 32(1) of the Evidence Act. The evidence of PW-3 that her daughter informed her about the harassment becomes hearsay, which is not admissible in evidence. The Apex Court in Inderpaul v. State of M.P.(1st supra) categorically held that unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence there is no other provision under which the same can be admitted in evidence and that in order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death. Their Lordships further observed in the cited case that by no stretch of imagination can the statements of the deceased contained in letters, where reference had been made by her regarding her life in the house of her in-laws, and the statements quoted by the witnesses, who had not spoken of anything which they had seen directly, be connected with any circumstance of the transaction which resulted in her death. In that case also the matter therein relates to an offence punishable under Section 498-A I.P.C. The Division Bench of this Court followed the said decision. Earlier also the Apex Court in Gananath Patnaik v. State of Orissa (2nd supra) considered the admissibility of the statements made by the deceased during her life time to the witnesses regarding the harassment. In that case, the appellant was tried for a! n offence punishable under Sections 304-B and 498-A I.P.C., the trial Court acquitted the appellant for the charge under Section 304-B I.P.C. for want of acceptable evidence but convicted him for the offence punishable under Section 498-A I.P.C. The conviction under Section 498-A I.P.C. was confirmed by the High Court and the said confirmation of the sentence was challenged before the Apex Court. It was argued on behalf of the appellant that the finding of the trial Court was not based on legal evidence. In that case, the sister of the deceased stated before the trial court that the deceased had been telling her about her ill-treatment meted out to her by her husband and in-laws for non- fulfilment of balance dowry and about assaults by her husband etc. The Apex Court considered whether such deposition of the sister of the deceased is admissible in evidence. The Apex Court held that such a statement is not admissible in evidence so far as the offence punishable under Section 498-A I.P.C. and it has to be termed only as hearsay evidence.

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14. Their Lordships observed that Section 32 of the Evidence Act is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death and that if a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. Their Lordships in that case observed that there was no legal evidence for returning a finding with respect to the alleged cruelty of the accused with the deceased and therefore it has to be held that the prosecution has failed to prove, beyond doubt that the appellant had committed the offence under Section 498-A I.P.C. So the facts of the cited case are almost similar to the facts of the present case.

15. In the cited case, the sister of the deceased gave evidence about the alleged harassment; whereas in this case, the mother of the deceased gave similar evidence regarding the harassment. Therefore, it is clear that the evidence of PW-3 regarding the alleged harassment becomes hearsay and is not admissible in evidence. Similar is the case in respect of the evidence of PWs. 6 and 7. The evidence of PW-6 is that the revision petitioner and deceased Mangamma were happy even after they got a daughter for about one year and thereafter the revision petitioner harassed the deceased stating that he wanted to marry PW-5 Manju, the sister of the deceased. According to this witness the deceased told her the said fact when the deceased had come to her house. She further stated that when the deceased came to her house, the deceased also told her that the accused was demanding one tola of gold and Rs. 10,000/- cash. This witness had no other source of information regarding the harassment other than the alleged statement made by the deceased. Therefore, this evidence is also hit by hearsay and not admissible in evidence for the reasons stated supra.

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16. PW-7 stated that the deceased and the revision petitioner lived happily for two years after the marriage till they got a daughter and thereafter the revision petitioner was demanding Mangamma to see that PW-5 Manju is married to him. He further stated that Mangamma told the said facts to him. He further stated that three months prior to death of Mangamma, the revision petitioner along with Mangamma went to his house and then also Mangamma told him about the demands of the accused and that three months thereafter Mangamma died. So the source of information for this witness is also the alleged statement made by the deceased Mangamma to him about three months prior to her death. So this evidence is also not admissible as it is only hearsay evidence for the reasons stated supra. PWs.4 and 5 are no other than the sisters of the deceased. PW-4 stated that the revision petitioner and the deceased lived happily till Magnamma died and she does not know how Mangamma died and that Mangamma used to visit her house before her death, but the deceased never informed her about her family affairs. Similarly, PW-5 Manju stated that the revision petitioner and Mangamma were happy for about two years after the marriage and they got a daughter and they lived happily till Mangamma died. She too stated that she does not know how Mangamma died. These two witnesses were treated hostile by the prosecution and it was suggested to them that the revision petitioner harassed the deceased and therefore the deceased committed suicide. The said suggestions were denied. PW-8 a resident of Chitkul stated that at about three years back she went to the house of Mangamma and she did not know as to why Magnamma committed suicide. PW- 9 (R.Sudhakar Reddy) the alleged panch witness stated that he saw the deadbody of the deceased Magnamma and in his presence panchanama was prepared for the seizure of rope M.O.1. The evidence of this witness is not helpful for the prosecution to prove the alleged harassment.

17. PW-10 is the doctor who stated that the deceased died due to hanging. Death by way of suicide is not in dispute. So his evidence also does not improve the case of the prosecution. PW-11 is also mediator for the seizure of rope. He did not speak anything about the alleged harassment. Therefore, his evidence also does not help the prosecution to prove the charge framed against the accused. PW-12 is the Assistant Sub-Inspector of Police who registered the case and assisted the Inspector of Police during investigation. His too did not say anything about the alleged harassment. There is nothing in his evidence to show that the deceased died due to the harassment meted out to the deceased by the accused. PW-13 is the Mandal Revenue Officer who held inquest over the dead body of the deceased.

18. PW-14 is the investigating officer. He has no direct knowledge about the alleged harassment. Therefore, there is absolutely no legal evidence adduced on behalf of the prosecution to prove the alleged harassment of the deceased by the revision petitioner to attract Section 498-A I.P.C. The Courts below without considering the admissibility or otherwise of the evidence of PWs.3, 6 and 7 regarding the alleged harassment, placed reliance on such evidence to record conviction. The Courts below failed to note that even if it is assumed that the deceased had made such statements to those witnesses, such evidence is a very weak piece of evidence as the deponent was not subjected to the cross- examination and that conviction cannot be based on such statements in the absence of corroboration. Therefore, this Court has no hesitation to hold that the conviction is based on no legal evidence and the appreciation of evidence by the Courts below is perverse and it resulted in miscarriage! of justice. Hence, this Court is of the considered view that the conviction and sentence recorded for the offence punishable under Section 498-A I.P.C. against the revision petitioner is not sustainable in law and are liable to be set aside. Thus, this point is found in favour of the revision petitioner. This Court has come across some more cases where the subordinate Courts placed reliance on the statements said to have been made by the deceased in respect of the alleged harassment, though such statements are not regarding the cause of the death of the deceased. Therefore, the attention of the subordinate Courts are required to be drawn to the law laid down by the Apex Court in Inderpaul v .State of M.P(1st supra) which was followed by the Division Bench of this Court in G.M. Ravi @ Purushotham v. State of A.P. (3rd supra). In the result, the Criminal Revision Case is allowed. The conviction and sentence recorded against the revision petitioner in S.C.No.47 of 1996 by the Assistant Sessions Judge, Sangareddy for the offence under Section 498-A I.P.C. which was confirmed in Crl.A.No.41 of 1998 by the Additional Sessions Judge (Fast Track Court), Medak at Sangareddy are hereby set aside and the revision petitioner is found not guilty of the charge under Section 498-A I.P.C. and accordingly he is acquitted and he is set at liberty forthwith if he is not required in any other case and his bail bonds shall stand cancelled. The fine amount, if any, already paid by the revision petitioner shall be refunded to him.

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