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2001 DIGILAW 22 (AP)

NUNNA VENKATA RAMA MOHAN RAO v. State Of A. P.

2001-01-18

VAMAN RAO

body2001
VAMAN RAO, J. ( 1 ) THIS appeal is directed against the judgment passed by the assistant Sessions Judge, Narsapur, dated 21st July, 1994 rendered in SC No. 123 of 1993 under which the appellant herein has been convicted for offence under section 304-B IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 10,000/-, in default to suffer imprisonment for a period of six months. ( 2 ) THE prosecution case may be stated briefly as follows: the accused is the husband of Nunna padma-deceased. The accused was originally married to one Anantha Lakshmi who died. The deceased Padma was also married to another person and had a daughter through him and after his death the said Padma married the accused herein on 7-4-1987. After the marriage the deceased lived with the accused at Madras where he was serving in the Indian Air Force. The father of the deceased is said to have given rupees one lakh as dowry to the accused at the time of the marriage. Some time after the marriage the accused left his job and went down to Palakol in 1989. He started harassing the deceased to bring more dowry for starting business. The father of the deceased Rama Rao invested a sum of rs. 1,10,000/- and helped the accused to open a fancy shop at Palakol. The accused and the deceased started living in a separate house MIG 2 Housing Board Colony, pulapalli of Palakol town. The accused continued to demand more dowry from the deceased. The accused used to return home in a drunken state and beat the deceased demanding dowry. It is also alleged that the accused used to bring other women to the house and indulge with them in the presence of the deceased. The deceased is said to have informed about this to her mother and her paternal aunts. While so, on 4-5-1990 in the early hours the deceased set fire to her clothes after pouring kerosene on her body and received fatal burn injuries. On coming to know of the same, the father of the deceased Rama Rao and his son venkata Gunneswara Rao rushed to the house of the accused and found the deceased lying with serious burn injuries. The deceased informed her brother about the cruelty meted out by the accused and how she set herself ablaze. On coming to know of the same, the father of the deceased Rama Rao and his son venkata Gunneswara Rao rushed to the house of the accused and found the deceased lying with serious burn injuries. The deceased informed her brother about the cruelty meted out by the accused and how she set herself ablaze. She however stated that the accused promised to treat her well in future and asked her brother not to disclose the facts to others. The deceased was taken to the Government Hospital, palakol for treatment. On the same day, the sub-Inspector of Police, Palakol proceeded to the Hospital and recorded the statements of the brother of the deceased and on that basis he registered a case in Crime no. 43/1990 and took up investigation. The deceased died on the same day at 4. 10 p. m. The Sub-Inspector of Police thereafter altered the section of law from Sections 174 to 304-B IPC. After completing the investigation, the Sub-Inspector filed charge- sheet. Dr. M. Bhaskara Lakshmi, examined the deceased and gave a certificate of injuries. Another doctor Indira Devi alongwith dr. M. Bhaskara Lakshmi conducted postmortem examination after the death of the deceased. It is stated that on 1-6-1990 the sub-Inspector of Police received a further report from the father of the deceased and he altered the section of law to Sections 306 ipc and 498-A IPC. During further investigation the Sub-Inspector of Police seized some love letters written by one dasari Kanakamma and some other women addressed to the accused and some photographs of some ladies. On the instructions of the Superintendent of Police, the Sub-Divisional Police Officer got the matter investigated and ultimately a charge- sheet for offence under Section 304 IPC has been filed. The case was duly committed to the Sessions Court from where it was made over to the Assistant Sessions Judge, narsapur. ( 3 ) DURING the trial PWs. 1 to 21 have been examined and Exs. P1 to P39 have been marked. When examined under section 313 Cr. PC the accused denied the charges levelled against him. On behalf of the accused the Judicial First Class magistrate, Palakol has been examined as dw1 and Exs. C1 to C3 have been marked. ( 3 ) DURING the trial PWs. 1 to 21 have been examined and Exs. P1 to P39 have been marked. When examined under section 313 Cr. PC the accused denied the charges levelled against him. On behalf of the accused the Judicial First Class magistrate, Palakol has been examined as dw1 and Exs. C1 to C3 have been marked. ( 4 ) ON this evidence, the learned Assistant Sessions Judge, Narsapur held that the prosecution has succeeded in proving the offence under Section 304 IPC against the accused and accordingly convicted and sentenced him as stated above. ( 5 ) IN this appeal Sri D. Sudershan Reddy, learned Counsel for the appellant seeks to challenge the order of conviction on various grounds. It would appear that in the dying declaration of the deceased recorded by the Judicial First Class magistrate, Palakol marked as Ex. C2 the deceased had completely exonerated the accused of his involvement in this incident in which the deceased received burn injuries. Her categorical statement was that she caught fire while she was preparing "upma". It is also her version in this statement that while she caught fire the accused intervened and attempted to extinguish fire and save her. As pointed out by the learned Counsel for the appellant earliest report Ex. P3 is lodged by the brother of the deceased Venkata Gwmeswara Rao - pw2 based on the information he received from the deceased immediately after the incident which is consistent with the dying declaration recorded by the Magistrate under Ex. C2. It also records the fact that on hearing the cries of the deceased the accused who was sleeping on the bed went to her and tried to douse the fire. It also mentions the fact that in that attempt the accused received burn injuries on his hands and legs. Ex. P3 also discloses, the fact that it was PW2 who took her to the hospital immediately, after the incident. There is no whisper about any acts of harassment or cruelty on the part of the accused meted out to the deceased in this report Ex. P3. It is significant to note that the first information report Ex. P29 is based on the statement of PW2. There is no whisper about any acts of harassment or cruelty on the part of the accused meted out to the deceased in this report Ex. P3. It is significant to note that the first information report Ex. P29 is based on the statement of PW2. ( 6 ) AS against this, entirely new version has been projected 27 days after the incident in a further complaint sent by the father of the deceased PW1 under Ex. P2. In this report it is complained that the accused has been demanding dowry from the deceased and that he has been treating her cruelly, sometimes by even beating her and threatening her to kill and that accused had been indulging in sexual adventures with other women in the presence of the deceased. In support of this version the prosecution relies on the evidence of PW1 - the father of the deceased, PW2 brother of the deceased, PW3 mother of the deceased and PWs. 4 and 6 who are sisters of PW1 and maternal aunts of the deceased. As far as the evidence of PWs. 1 and 2 is concerned, it may be stated at the out set that they do not claim to be eye-witnesses to any acts of cruelty or harassment attributed to the accused in relation to the deceased. What they said is that they came to know about these activities of the accused only through the wife of PW1 i. e. , mother of the deceased after the event. However, mother of the deceased PW3 and aunts of the deceased pws. 4 and 6 deposed that the deceased had reported to them about the demands of dowry by the accused and the acts of harassment and ill-treatment perpetrated by the accused. ( 7 ) PW3 also does not claim to be an eye-witness to any acts of harassment or cruelty on the part of the accused towards the deceased. The only basis on which she makes statement is said to be the information received by her as to the conduct of the accused when they were living together at madras. ( 8 ) LEARNED Counsel for the appellant contends that the version given by these witnesses does not deserve to be believed. It is firstly pointed out that this version came to light after a delay of 27 days after the death of the deceased. ( 8 ) LEARNED Counsel for the appellant contends that the version given by these witnesses does not deserve to be believed. It is firstly pointed out that this version came to light after a delay of 27 days after the death of the deceased. The explanation offered by the prosecution for this delay is that PW. 3 mother of the deceased and also PWs. 4 and 6 had gone on a pilgrimage on 1-5-1990 and returned only after the death of the deceased on 20-5-1990. Learned counsel further points out that though new report Ex. P2 is dated 23-5-1990, but in fact it reached the Police Station only on 1-6-1990. He rightly contends that for all practical purposes this report should be presumed to have reached the Police Station 27 days after the incident. Additional reason for this delay as offered by the prosecution appears to be that PW1 himself after the event went into shock over the death of his daughter and was not in a healthy state of mind till 22-5-1990. These are two reasons offered as explanations for the delay in communicating the version in the new report Ex. P2. ( 9 ) THE contention of the learned Counsel for the appellant is that this explanation for the delay tests the credulity of the Court. 1 am inclined to agree with the contentions of the learned Counsel for the appellant that this explanation for the delay is far from satisfactory. It is pertinent to mention here that if the deceased was subjected to such cruel treatment, which ultimately put an end to her life, it is inconceivable that the father PW1 and her own brother PW2 would have been unaware of this. The prosecution theory that the only persons who were repository of this information as to the cruel treatment on the part of the accused towards deceased was her own mother PW3 and her aunts PWs. 4 and 6 is highly improbable. Even assuming that the deceased might have conveyed about these acts of the accused only to her mother and her aunts it is incredible that these ladies would not have disclosed these facts to the deceased s own father-PW1. Here again an explanation is offered for not disclosing this information to PW1. 4 and 6 is highly improbable. Even assuming that the deceased might have conveyed about these acts of the accused only to her mother and her aunts it is incredible that these ladies would not have disclosed these facts to the deceased s own father-PW1. Here again an explanation is offered for not disclosing this information to PW1. PW3 seems to have said that as PW1 was suffering from blood pressure, she thought it undesirable to convey this unpleasant information about her daughter to her own father. This explanation can only be mentioned to be rejected. First of all, there is no material to show that PW1 suffered from any serious ailment which would have endangered his life on receiving any shocking news about her daughter. This version appears to be totally unbelievable in view of the various circumstances on record. It is seen that PW1 was very much present at the time of inquest and was examined during inquest. There was nothing about his health, which could have prevented him from making statement to the police. In fact PW1 s version is that a day prior to the incident in which the deceased died he came to know about some serious mis-goings and quarrellings between his daughter and the accused and that he went to the house of the deceased and successfully persuaded them to patch up the differences and stayed upto 11. 30 p. m. , in the night and then went to his house. In the background of this, the version that PW3 mother of the deceased did not inform about the harassment and cruelty on the part of the accused towards the deceased to her own husband and father of the deceased appears to be highly improbable. ( 10 ) IT may be pointed out that the Assistant Sessions Judge in his lengthy judgment running into 20 pages has dealt with the evidence of PWs. 1 to 4 and 6 in just one paragraph i. e. , in Para 27. Learned assistant Sessions Judge failed to examine this evidence critically, particularly in the light of deceased having voluntarily given her dying declaration recorded by a responsible Judicial First Class Magistrate. 1 to 4 and 6 in just one paragraph i. e. , in Para 27. Learned assistant Sessions Judge failed to examine this evidence critically, particularly in the light of deceased having voluntarily given her dying declaration recorded by a responsible Judicial First Class Magistrate. While it is true that a statement made in a dying declaration in all cases cannot be considered as conclusive, and there may be circumstances and cases where a Court on appraisal of the entire evidence may find that the statement made in the dying declaration was not true, but a statement made in a dying declaration constitutes valuable piece of evidence. It can be discarded only where there is strong unimpeachable evidence indicating that the statements made in the dying declaration were not true. In this case, the learned assistant Sessions Judge seems to have ignored the dying declaration of the deceased Ex. C2 with an observation that had it been true it would have contained many details. Absence of details cannot be considered as a reason for disbelieving a dying declaration. In fact considering the circumstances, that such a statement is made by a person who is sick and who is suffering with pain, a lot of details in a statement made by such person cannot be expected. In fact insertion of too many details may itself be an indication that it was prompted or statements were incorporated which were not made. At any rate, reasons stated by the learned assistant Sessions Judge for discarding a dying declaration can scarcely be accepted. ( 11 ) FURTHER, the material which is sought to be relied upon by the prosecution to controvert the statements made by the deceased in the dying declaration as stated above, suffers from serious infirmities. In view of what has been stated the evidence of PWs. 1 to 4 and 6 can hardly be considered to be sufficient to discard the statement made by the deceased in her dying declaration Ex. C2. The Judicial First Class magistrate who recorded the statement has been examined as a defence witnesses. He has categorically stated that at the time when he recorded the statement except himself and doctor, no other person was present. Nothing has been suggested during his cross-examination to indicate that dying declaration of the deceased was a result of any pressure by the accused. He has categorically stated that at the time when he recorded the statement except himself and doctor, no other person was present. Nothing has been suggested during his cross-examination to indicate that dying declaration of the deceased was a result of any pressure by the accused. In fact, the record shows that it was the brother of the deceased who has taken her to the hospital. Thus, it is obvious that father and the brother of the deceased were very much there in the hospital when her statement was recorded. There is nothing to show that the accused had any opportunity of prompting or pressurising her during the recording of her statement. Further in this case there is evidence to show that the accused himself had received burn injuries to his hands and legs, which according to the first information report, he sustained while attempting to save the deceased. Nothing has been elicited during the cross-examination of the doctor PW20 who examined and treated the accused to show that the injuries received by him could not have been sustained in the manner in which they are said to have been sustained namely while attempting to save the deceased. ( 12 ) THE offence under Section 304-B IPC is based on a presumption arising from the fact of death of a women caused by any burns or bodily injuries or otherwise than under normal circumstances within 7 years of her marriage. The basis for such presumption is that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with the demand for dowry. When these requirements are satisfied it raises a statutory presumption that offence called dowry death has been committed by the accused. The question of raising a presumption would arise when the real cause of death is not known. In this case, the deceased in her dying declaration has categorically stated that she sustained burn injuries accidentally which ultimately resulted in her death. Unless this version given by the deceased is effectively controverted and shown to be untrue, the question of raising a presumption of dowry death under Section 304-B IPC would not arise. As stated above, the evidence on record in this case is not adequate to show that the statement made by the deceased in her dying declaration ex. C2 was untrue or false. As stated above, the evidence on record in this case is not adequate to show that the statement made by the deceased in her dying declaration ex. C2 was untrue or false. Under these circumstances, the learned Assistant sessions Judge erred seriously in recording conviction of the accused for the offence under Section 304-B IPC. ( 13 ) IN the result, the appeal is allowed and the order of conviction of the accused for the offence under Section 304-B IPC is set aside consequently the sentence is set aside. Bail bonds of the appellant shall stand discharged.