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Improved allegations, Sections 498A and 304-B, IPC. set aside

Andhra High Court

Paidimarri Shanker And Ors.
State Of A.P.

on 5 September, 2003
Equivalent citations: 2003 (2) ALD Cri 538, I (2004) DMC 546



1. This statutory appeal under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment in Sessions Case No. 317 of 1996 on the file of the IVth Additional District and Sessions Judge (Fast Track Court), Karimnagar dated 10.8.2001.

2. The learned Sessions Judge through the judgment under appeal convicted the accused 1 and 7 for the offence under Section 498-A, I.P.C. and sentenced each of them to undergo three years’ rigorous imprisonment and further sentenced A.1 to pay fine of Rs. 5,000/- in default to undergo simple imprisonment for one year and also sentenced A.7 to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for three months. He convicted A.2 under Section 304-B, I.P.C. and sentenced her to undergo rigorous imprisonment for seven years and he also convicted A.4, A.5, and A.6 under Section 304-B of I.P.C and sentenced each of them to suffer imprisonment for life.

3. The brief facts that are necessary for the disposal of the present appeal may be delineated as follows: The deceased Vijaya was married to A.1. At the time of marriage, an amount of Rs. 5,000/- was given towards dowry. For about one year they both lived happily and thereafter all the accused started demanding her to get money and when the deceased came to the house of P.W. 2, for Dussehra festival she gave Rs. 200/- and sent her to her in-laws’ house. After the deceased went to her in-laws’ house P.W. 2 came to know that her daughter was suffering with fever and she along with two persons sent by the accused went to the Government Hospital, Metapalle and found her daughter admitted as an in-patient with burn. The deceased remained in the hospital for ten days. The duty Doctor advised them to take the deceased to the Government Hospital at Jagtial. They engaged a jeep to go to Jagtial and by the time they reached their village the deceased regained consciousness. Then P.W. 2 asked her as to how she sustained burns for which the deceased stated that all the accused poured kerosene on her body and her mother-in-law set fire to her with lighting matchstick. On 3.12.1994 P.W. 1 went to the police station and lodged Ex. P.7 report. P.W. 14 registered a case. P.W.14 gave requisition to P.W.16 to record the statement of Vijaya. Accordingly, P.W.16 recorded the statement of the deceased on 3.12.1994 at about 12.45 p.m. On 11.2.1995 P.W. 9 received intimation of the death of the deceased. Then he altered the section of law to 302 from 304-B, I.P.C., examined the witnesses and also conducted an inquest. After inquest the dead body was sent to post-mortem examination. As per Ex. P.12 post-mortem certificate the cause of the death of the deceased was due to burns and septicaemic shock. After investigation is completed P.W. 15 filed the charge-sheet.

4. On behalf of the prosecution sixteen witnesses were examined as P.Ws. 1 to 16 and Exs. P.1 to P.12 were marked. There lower Court found the accused 1, 2, 4, 5, 6, and 7 guilty of the offence under Sections 498-A and 304-B, I.P.C. and accordingly they were convicted and sentenced as aforesaid. The learned Judge found A.8 not guilty and accordingly acquitted him. It is as against the said conviction and sentence A.1, A.2, A.4 to A.7 filed the present appeal questioning the legality of the judgment of the Trial Court.

5. The learned Counsel for the appellants contended that there was no evidence to show that the deceased was subjected to cruelty or harassment for or in connection with demand of dowry, that the deceased committed suicide as seen from the evidence of P.W. 8, that the dying declaration Ex. P.11 does not incriminate anything against the accused so as to convict them under Sections 498-A and 304-B, I.P.C. and the lower Court without considering these aspects believed the oral dying declaration made to P.Ws. 2, 10 and 11 and convicted the appellants and, therefore, he prays to set aside the conviction and sentence passed against the appellants.

6. Countering the said argument, the learned Public Prosecutor contends that the evidence of P.Ws. 2, 10 and 11 would clearly go to show that it is the appellants who are responsible for causing the death of the deceased by burning her, that the incident took place within seven years of the marriage of the deceased with A.1, and that if the dying declarations are found to be true and trustworthy they can be relied upon and the lower Court rightly convicted the appellants basing on the oral dying declarations made to witnesses, and so there are no grounds to interfere with the conviction and sentence recorded against the appellants.

7. P.W. 7 is one of the inquest mediators who was present at the time of the inquest. He opined that the deceased died as a result of burns. Ex. P. 4 is the inquest report. The Doctor who conducted autopsy was not examined but the post-mortem report is marked as Ex. P.12. As seen from Ex. P.12 the cause of death was due to post-burns septicemia shock. Even the appellants did not dispute about the cause of the death in the manner stated in Ex. P.12.

8. The appellants were convicted for the offences under Sections 498-A and 304-B of I.P.C. Cruelty for the purpose of Section 498-A, I.P.C. means 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 (mental or physical) of the woman, or 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 of any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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9. In order to constitute an offence under Section 304-B, I.P.C., the essential ingredients to be satisfied are as follows–

(1) the death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance;

(2) such death should have occurred within seven years of her marriage;

(3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(4) such cruelty or harassment should be for or in connection with demand of dowry;

(5) such cruelty or harassment is shown to have been meted out to the woman soon before her death.

10. The presumption of law under Section 113-B of the Indian Evidence Act shall be raised only on proof of the following essentials–

(1) the question before the Court must be whether the accused has committed dowry death of a woman;

(2) the woman was subjected to cruelty or harassment by her husband or his relatives;

(3) such cruelty or harassment was for or in connection with demand for dowry;

(4) such cruelty or harassment was soon before her death.

11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B of I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. All the conditions except the last two conditions were not in dispute. The expression “soon before the death” is explained in the decision reported in Hira Lal v. State (Government of NCT), Delhi, II (2003) DMC 206 (SC)=IV (2003) SLT 593=111 (2003) CCR 41 (SC)=2003 AIR SCW 3570, wherein it is held by the Apex Court as under:

“The determination of period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.”

12. Bearing the above principles in mind it has to be seen whether the deceased was subjected to cruelty or harassment for or in connection with demand of dowry.

13. P.W. 16 is the Judicial Magistrate of I Class who recorded Ex. P. 11 statement from the deceased. Because the deceased subsequently died, it amounts to a dying declaration. The dying declarations are statements, written or oral, of the relevant facts as to the cause of death and as to the nature and the circumstances of the transactions which resulted in the death in cases in which the cause of death comes into question or admissible under Section 32(1) of the Evidence Act. A dying declaration may be oral or it may be reduced into writing by any person but in either case it must be duly proved. Before a dying declaration is admitted in evidence it must be proved that (1) a statement written or verbal is made by a person who is dead, as to the cause of his death or to any of the circumstances of the transactions which resulted in his death, and (2) the cause of that person’s death is in question.

14. In a leading decision in Kushal Rao v. State of Bombay, AIR 1958 SC 22, Their Lordships of the Apex Court have held that in order to pass a test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view of the fact that the statement has been made in the absence of the accused who had no opportunity of cross-examining, but once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of corroboration.

15. In a recent decision in P.V. Radhakrishna v. State of Karnataka, II (2003) DMC 220 (SC)=III (2003) CCR 47 (SC)=IV (2003) SLT 603=2003 (8) I.L.D. 200 (SC), it was held as follows:

“Though a dying declaration is entitled to great weight it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat, —

(i)    there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration--Munnu Raja's case (supra);

(ii) if the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it. Without corroboration — State of U.P. v. Ram Sugar Yadav, and Ramawati Devi v. State of Bihar, ;

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(iii) the Court has to scrutinize the dying declaration carefully and must ensure that the dying declaration is not the result of tutoring, prompting, or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration –K. Ramachandra Reddy v. Public Prosecutor, ;

(iv) where dying declaration is suspicious, it should not be acted upon without corroborative evidence — Rasheed Beg v. State of Madhya Pradesh, ;

(v) where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected, Kaka Singh v. State of M.P., ;

(vi) a dying declaration which suffers from infirmity cannot form basis of conviction–Ram Manorath v. State of U.P., ;

(vii) merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected–State of Maharashtra v. Krishnamurthi Laxmipathi Naidu, ;

(viii) equally merely because it is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth–Surajdeq Oza v. State of Bihar, ;

(ix) normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit conscious state to make the dying declaration the medical opinion cannot prevail–Nanahau v. State of Madhya Pradesh, ;

(x) where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon–State of U.P. v. Madan Mohan, ;

(xi) where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted–Mohanlal Gangaram Gehani v. State of Maharashtra, .”

In the light of the above principles the acceptability of the dying declaration in the instant case has to be considered. The first dying declaration was recorded by P.W. 16 which is marked as Ex. Ell. It is stated in the dying declaration that on the date of the incident Sayamma (A.4) gagged her mouth, Lakshmi (A.6) poured kerosene oil and set fire to her and her mother-in-law (A.2) was sitting in front of the house and her brothers-in-law (A. 3 and A. 5) were also sitting in front of the house and thereafter her husband (A.1) extinguished fire with a towel and on the same day evening she was taken to hospital at Metpalle. Admittedly, the deceased was admitted in Metpalle hospital on 22.11.1994. On the same day, the parents of the deceased went to the hospital to see her daughter. They did not give any report to the police immediately thereafter. For the first time, on 3.12.1994 P.W. 1 gave report. So also the hospital authorities did not send any requisition to police or Magistrate to record the statement of the deceased immediately when she was admitted in the hospital. The prosecution has not explained any reason on this aspect.

16. After the case was registered by P.W. 14 basing on Ex. P.7, he sent a requisition to P.W. 16 who recorded Ex. Ell dying declaration. According to P.W. 1 the deceased was unconscious and the duty Doctor asked them to take the deceased to Jagtial hospital when her condition had not improved. The Magistrate did not record his satisfaction that the deceased was in a fit condition to give a statement nor appended any certificate to Ex. Ell that the patient was in a fit condition to give a statement. Of course, it is the subjective satisfaction of P.W. 16 to know the state of mind of the deceased. But he clearly stated that the duty Doctor informed him that the patient was conscious and was in a fit condition to give a statement. But P.W. 16 did not say that the declarant was in a fit medical condition to make a dying declaration.

17. In Ex. P.11 it is stated by the deceased that A.4 closed her mouth whereas A.6 poured kerosene and set fire to her. But this statement is materially contradictory to the oral dying declarations made to P.Ws. 2, 10 and 11. The evidence of P. W. 2 goes to show that the brothers-in-law (A.3 and A.5) and sisters-in-law (A.4 and A.6) of the deceased poured kerosene on her and her mother-in-law A.2 lit fire with a match stick. Thus this oral dying declaration is completely an improvement because P.W. 2 admitted that she did not state before the police that her daughter had informed her that her husband’s brothers and sisters poured kerosene on her and her mother-in-law set fire to her with a lighted match stick. Therefore, it is clearly an improvement and no reliance can be placed upon this evidence. This oral dying declaration to P.W. 2, is also materially in contradiction with the evidence of P.W. 11 who is no other than the cousin of P.W. 2. According to P.W. 11, the deceased informed him that the elder brothers of her husband, their wives, sister of her husband and her mother-in-law gagged her mouth, caught hold of her and poured kerosene and set fire on her. The above statement would go to show as if all the accused had poured kerosene on the body of the deceased and set fire to her.

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18. Coming to the evidence of P.W. 10, who is the sister of the deceased, she categorically stated that the deceased was not in a position to talk due to the burns and three months later she died. The deceased was admitted in Government civil hospital at Metpalle on 22.1,1994. P.W. 8 treated her upto 1.12.1994 and discharged her with an advice to take further treatment from the Government hospital, Jagtial. At the time of admission into the hospital at Metpalle the deceased informed to P.W. 8, the Doctor that while she was cooking she caught fire and sustained burns. Even though he did not reduce the same into writing but there was no reason for him to speak false. The evidence of P.W. 8 is quite contradictory to the oral dying declarations made to P.Ws. 2, 10 and 11 and also written dying declaration Ex. P.11. Therefore the possibility of tutoring cannot be ruled out in this case. On 1.12.1994 the deceased was discharged from the hospital and on 3.12.1994 P.W. 1 lodged Ex.P.7 report with police. Even Ex.P.7 cannot be used for corroborating the evidence of P.W. 1 for the simple reason that at the time of his examination he was unable to speak due to paralysis and, therefore, P.W. 1 was discharged and his examination was discontinued by the learned Sessions Judge. Since the declarations made at different points of time differ from one another on material particulars and are inconsistent, it is not desirable to place an implicit reliance on those declarations. Perhaps that is the reason why the lower Court has not convicted the accused under Section 302, I.P.C.

19. Coming to the charge under Sections 498-A and 304-B of I.P.C. it is the case of P.W. 2 that the accused started harassing deceased to get money as the dowry given at the time of the marriage was insufficient, and, therefore, she gave Rs. 200/- when the deceased came to Dussehra festivel to her house. She has not stated before the police that her daughter came for Dussehra festival or that she gave Rs. 200 or that the deceased informed them that the accused were demanding extra dowry. Therefore, this statement is clearly an improvement. According to P.W. 2, they informed elders about the accused demanding dowry, but no elder is examined. P.Ws. 3, 4, 5, 6, and 12 did not support the case of the prosecution. They were declared hostile. P.W. 5 though was declared hostile, he stated that the accused never demanded the deceased to bring any dowry. P.W. 4 stated that there were no disputes between A.1 and his wife. P.W. 10 stated that five or six months after the marriage the accused started demanding the deceased to get additional dowry. She came to know through her mother P.W. 2 but P.W. 2 did not state that she informed about the demand of dowry to P.W. 10. P.W. 11 stated that the accused were demanding to get extra dowry of Rs. 5,000/-, which is not at all the case of P.W. 2.

20. Whether the demand of dowry as testified by these witnesses has a ring of truth about it is to be seen now. Admittedly, P.W. 1 who is the father of the deceased, was not doing any work for the last fifteen years and P.W. 1 had no capacity to perform even the marriage of P.W. 10. P.W. 2 used to earn Rs. 45/- per day by making beedis and even that amount is hardly sufficient for meeting the family expensses and as a matter of fact P.W. 11 used to give money to P.W. 2 for meeting the family expenses. Futhermore, at the time of marriage of P.W. 10, no dowry was paid. Therefore, under these circumstances the demand of dowry appears to have been invented by the prosecution witnesses after the death of the deceased and perhaps that is the reason why in the earliest report the allegation with regard to the demand of dowry was not at all made. If really the accused were harassing the deceased to bring dowry, certainly this fact would have been stated by P.W. 1 in Ex. P.7. In view of these circumstances it is highly unsafe to place an implicit reliance on the evidence of P.Ws. 2, 10 and 11 with regard to the demand of dowry. P.Ws. 10 and 11 did not state that they came to know from the deceased that the accused were harassing her to bring dowry. They specifically stated that P.W. 2 had informed them about the demand of dowry. But P.W. 2 did not state so. Basing upon the evidence of P.Ws. 2, 10 and 11 the Trial Court convicted the accused for the offences under Sections 498-A and 304-B of I.P.C. As discussed above, it is clear that the evidence is not wholly reliable with regard to the demand of dowry soon before the death of the deceased. If that evidence is eschewed from consideration the accused cannot be convicted for the offences under Sections 498-A and 304-B of I.P.C. The learned Sessions Judge has not given any reasons in accepting the evidence of P.Ws. 2, 10 and 11 with regard to the demand of dowry.

21. In view of the above discussion, this criminal appeal deserves to succeed and is accordingly allowed and the conviction and sentence passed against the appellants for the offences under Sections 498-A and 304-B, I.P.C. as awarded by the learned Trial Court are hereby set aside and the appellants are acquitted of the said charges and they shall be released forthwith if they are in jail, if not required in any other case and the fine amount, if any paid by them, shall be returned to them.

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