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Sections 302 and 498-A, IPC are set aside

Andhra High Court

G.M. Ravi Alias G. Purushotham
State Of A.P. on 3 July, 2003

Equivalent citations: 2003 (2) ALD Cri 344, 2003 (2) ALT Cri 210, 2004 CriLJ 1861
Author: B Nazki
Bench: B Nazki, K Bhanu
JUDGMENT Bilal Nazki, J.

1. Heard the learned senior counsel Shri C. Padmanabha Reddy for the appellant and the learned Public Prosecutor for the Prosecution.

2. The sole accused in this case was tried for offences under Sections 498-A and 302, IPC. The charges were framed oh the basis of the allegation that on 7-4-1998 at about 10 p.m., the accused committed the murder by intentionally causing the death of Padmavathi who was his wife. Another allegation was that the accused had subjected the deceased to cruelty, and, therefore, the charge under Section 498-A, IPC was framed. The accused pleaded not guilty and claimed to be tried. The prosecution examined 19 witnesses. 14 documents were exhibited. 7 material objects were marked.

3. Although 19 witnesses were examined, the whole case of the prosecution rests upon an oral dying declaration purported to have been made by the deceased before P.W. 1 the sister of the deceased in the presence of P.W. 9 a relative of the deceased and P.W. 1. The prosecution story is that the deceased was given in marriage to the accused 13 years before. The accused, after some time of the marriage, had developed illicit relations with one Rajeshwari of Nagari. After developing illicit relations with the said Rajeshwari, he started harassing the deceased. Whenever the deceased visited her parents or her sisters, she would narrate them the stories of harassment caused to her by her husband. The accused was facing a criminal case and was convicted and sentenced to two years Imprisonment by a Magistrate’s Court against which he filed an appeal before the appellate Court which also he lost. He needed Rs. 10,000/- for the purpose of prosecution of further remedies before the High Court. Therefore, he demanded this amount from his father-in-law through his wife. Since his wife and his father-in-law were not able to meet his demand, he, during the night of 7/8-4-1998, poured kerosene over the deceased and lit a match-stick. The deceased got burns and eventually died in the hospital on the same day. P.W. 1 was informed about the incident, as she was in the same village. When she rushed to the house of the deceased, she was informed by P.Ws. 7 and 8 that the deceased had been shifted by her husband and others to Ramachandra Hospital, a local private hospital. She, accompanied by her father-in-law, went to the Ramachandra Hospital, She stated that when she reached Ramachandra Hospital, she saw her sister placed in a car to be taken to SVRR Hospital. Tirupathi. At that time, P.W. 1 met her sister, the deceased, and the deceased told her that the accused had set her on fire by pouring kerosene over her as she had not got the money he had demanded. The deceased also told P.W. 1 that she should inform her father and should lodge a complaint against her husband with the police. This happened on 7/8-4-1998 at mid-night P.W. 1 did not accompany the deceased to SVRR Hospital, Tirupathi, which is 55 Kms. away from the private hospital. According to the evidence and the records of the hospital, at 2.30 a.m., on 8-4-1998 the deceased died. On 8-4-1998 at 12.05 p.m., P.W. 1 gave a report to the police which is Ex.P1. This report was obviously given to the police after the death of the deceased. An explanation has been furnished by P.W. 1 for giving the report after almost 12 hours of the occurrence. She stated that she had telephoned her parents and she was waiting for them. Therefore, she waited up to 12 noon on 8-4-1998. But, when the parents did not turn up by 12 noon, she thought it prudent to file the report. We do not see anything unnatural about such explanation. A sister dies in unnatural circumstances due to burns, another sister informs parents and does not file a report with the police immediately –it looks to us natural process. Therefore, on this count we may not agree with the defence that this is a circumstance which should be taken in favour of the accused.

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4. Learned senior counsel submits that though the law is settled that on the basis of a dying declaration alone, conviction can be placed on an accused, but, he submits, the dying declaration should be unimpeachable. If the recording or registration of the dying declaration is surrounded by suspicious circumstances, then it may not be safe to rely upon the dying declaration without any other corroborative evidence. In the present case, admittedly there is no corroborative evidence and the only evidence which is pressed into service by the prosecution against the accused is the oral dying declaration of the deceased. Now the circumstances which shroud the dying declaration in mystery and create suspicion may be summarized as follows.

5. Immediately after the burning incident happened, the deceased was taken to a private hospital. That private hospital was manned by P.W. 16. He stated that he was a Doctor with a professional degree of MBBS. He also stated that during the midnight the deceased was brought to his hospital. He examined the patient and found burns all over her body and advised her relatives to take her to SVRR, Hospital, Tirupathi, for expert treatment. He did not even give first aid to the deceased. Thereafter the deceased was taken away from that hospital. Though this Doctor is a professionally qualified and examined the patient, he did not even give first aid treatment. The only thing which we can presume for not giving even first aid treatment is that the condition of the patient was so bad that he did not want to lose any time and sent the patient to a specialized hospital. This Doctor did not even state whether the patient at that time was conscious or not. The medical record was not produced, and according to the learned Public Prosecutor, since the Doctor did not examine the patient in detail and private hospitals do not usually maintain such records, such circumstances should not go against the prosecution. That may be so, but at least the Doctor could have said in his evidence whether the patient was conscious or unconscious, According to the evidence, as we have seen, it appears that the Doctor had seen the patient before P.W. 1 had an occasion to meet her, because according to P.W. 1 the patient was already in a car preparing to leave for Tirupathi. The second circumstance is that the patient died in the hospital at Tirupathi within 2 1/2 hours of the occurrence. The medical record pertaining to that specialized hospital was also not produced by the prosecution. When the patient reached the hospital at Tirupathi whether the patient was conscious or unconscious, is also not known to the Court. The Doctor who examined and treated the patient at Tirupathi was not examined. The third circumstance which almost all the witnesses have corroborated and even the Doctor who examined the patient at the private hospital has stated is that there was a large crowd around the car. In such circumstance whether it was possible for P.W. 1 to reach and talk to her sister or not is also doubtful. Besides that, P.W. 1 herself stated in her statement that she was not allowed by the husband of the deceased and others present at the spot to accompany the patient to Tirupathi from the private hospital. In these circumstances it is impossible for this Court to base the conviction on the solitary testimony of P.W. 1 who pressed into service the oral dying declaration of the deceased. Therefore, conviction under Section 302, IPC cannot sustain and is set aside.

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6. Coming to the conviction under Section 498-A IPC, under which the accused had been sentenced to simple imprisonment for two years and to pay a fine of Rs. 500/-, the learned senior counsel appearing for the accused has drawn our attention to a judgment of the Supreme Court in Inderpal v. State of M. P. (2002 Cri LJ 926 : (2001 AIR SCW 5092). Paragraphs 4, 5 and 7 of the judgment are reproduced below.

“We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damayanti to cruelty as contemplated in Section 498A, IPC. P.W.I father of the deceased and P.W.8 mother of the deceased have stated that Damayanti had complained to them of her plight in the house of her husband and particularly about the conduct of appellant. P.W. 4 sister of the deceased and P.W. 5 a relative of the deceased have also spoken more or less in the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damayanti. In those two letters reference has been made to her life in the house of her in-laws and in one of the letters she said that her husband had subjected her to beating.

Apart from the statement of the deceased none of the witnesses had spoken anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters).

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Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. 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, in a case in which the cause of death comes into question. By no stretch of imagination can the statements of Damayanti contained in Exhibit P7 or Exhibit P8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498A, IPC disjuncted from the offence under 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.”

7. All the witnesses in the present case, who have deposed, have only stated what according to them was told by the deceased to them with respect to the harassment meted out to her by her husband. None of these statements comes within the purview of Section 32 of the Evidence Act. Therefore, these statements in view of the judgment of the Supreme Court referred to above, are not at all admissible in evidence. There is not a single witness who has stated that he/she had personal knowledge of the harassment of the deceased by the appellant. Even the father of the deceased, who stated that the accused had demanded Rs. 10,000/- for the purpose of filing an appeal in the High Court, did not state that a demand for money was made to him by the accused. He stated that the demand was made on telephone by his own daughter, the deceased. According to him, the accused had asked his wife, that is the deceased, to demand money from him. Again this evidence is not admissible under Section 32 of the Evidence Act. Therefore, conviction under Section 498-A, IPC also cannot sustain and is set aside.

The conviction and sentence for the offences under Sections 302 and 498-A, IPC are set aside. The accused-appellant be released forthwith, if not required in any other case.

The fine amount, if paid, be refunded to the accused-appellant.

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