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2003 DIGILAW 365 (AP)

Manikyala Prasad v. State Of A. P.

2003-03-06

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THIS is an appeal preferred by the accused in S. C. No. 177 of 2000 on the file of the Assistant Sessions Judge, Nalgonda. The trial Court, through its judgment dated 20th September 2001, convicted the appellants for the offence under Section 304b IPC and sentenced them to undergo Rigorous Imprisonment (RI) for 10 years and to pay a fine of Rs. 500/- each; in default to undergo Simple Imprisonment (SI) for 2 months. ( 2 ) THE case of the prosecution was that the marriage of deceased Rama Devi, daughter of P. Ws. 1 and 2, was performed with A1, some time during March 1998. A2 and A3 are the parents of A1. At the time of marriage, P. Ws. 1 and 2 are said to have given 1 acre of land towards dowry. After the marriage, A1 and his wife Rama Devi lived peacefully. About 6 months thereafter, the accused are said to have asked the deceased to sell the land given at the time of marriage and bring the sale proceeds thereof. The accused are alleged to have harassed Rama Devi physically and mentally for selling the said piece of land. She was sent to her parents place for that purpose. P. Ws. 1 and 2 had consoled her and sent back to the place of accused, stating that it would take some time for them to sell the land. Rama Devi was sent to her parents place once again for the same purpose. ( 3 ) AT that time, Panchayat was held in the presence of P. W. 3 and another person. The accused were asked not to indulge in harassing Rama Devi and ultimately she was sent to the place of the accused. In our about July 1999, A1 to A3 are alleged to have bet Rama Devi and asked her to leave the place, to bring the amount after selling the land. Having been vexed with the harassment caused to her, Rama Devi consumed poison on the midnight of 10-9-1999 and died instantly. ( 4 ) ON receiving the information, P. Ws. 1, 2 and 3 went to the place of the accused and on seeing the dead body, reported the matter to the Police. Having been vexed with the harassment caused to her, Rama Devi consumed poison on the midnight of 10-9-1999 and died instantly. ( 4 ) ON receiving the information, P. Ws. 1, 2 and 3 went to the place of the accused and on seeing the dead body, reported the matter to the Police. The SHO of PS Narayanapur took up the investigation and post-mortem was conducted on the body of the deceased, duly following the legal formalities. The post mortem report revealed that the death was on account of consumption of pesticide. ( 5 ) IN support of its case, the prosecution has examined P. Ws. 1 to 13 and marked Exs. P1 to P15. No evidence was adduced on behalf of the accused. PW. 1 is the mother and PW. 2 is the father of the deceased Rama Devi. PW. 3 is an elder, who participated in the Panchayat. P. Ws. 4 and 5 are the neighbours of the accused, PW. 6 is the Medical Practitioner who is said to have given first aid to the deceased, PW. 7 is the Medical Officer, who conducted the post mortem, P. Ws. 8, 10 and 11 are the panch witnesses, P. W. 9 is the colleague of the deceased, PW. 12 is the Revenue Officer, who held the inquest and PW. 13 is the Investigating Officer. Out of these witnesses, P. Ws. 4 to 6, 8 and 9 were treated as hostile. ( 6 ) THE learned counsel for the appellants submits that there did not exist any material before the trial Court to establish the offence under Section 304b IPC. He submits that P. Ws. 1 and 2 are interested witnesses and P. W. 3 did not say any thing except his participation in the Panchayat. According to him, even if the deposition of the material witnesses viz. , P. Ws. 1 to 3 is to be taken on its face value, the same do not give any indication as to the cause of death, that too, attributable to the accused herein. He has also drawn the attention of the Court to the inconsistencies in the evidence on several aspects. ( 7 ) THE learned Public Prosecutor submits that the evidence of the material witnesses P. Ws. He has also drawn the attention of the Court to the inconsistencies in the evidence on several aspects. ( 7 ) THE learned Public Prosecutor submits that the evidence of the material witnesses P. Ws. 1 to 3 was consistent, supported by the medical evidence and the oral evidence before the trial Court was adequate to sustain the conviction. The accused were charged with the offence under Section 304b IPC. This Section and Section 498-A were inserted in the IPC with a view to curb the civil harassment of married women by their spouses and relations for the purpose of dowry. The circumstances for the invocation of these provisions are different, though their object is common. For invoking Section 304b of IPC, the prosecution has to establish certain ingredients, such as: (i) the death of a married woman taking place otherwise than under normal circumstances; (ii) the death taking place within 7 years of the marriage; and (iii) the deceased having been subjected to cruelty and harassment soon before the death. The nature and standard of proof of these ingredients differ from each other. It is not difficult to prove the first ingredient. It can easily be discerned and established as to whether the death was otherwise than under normal circumstances. The 2nd ingredient is almost a matter of record, once the date of marriage is established. It is only the 3rd ingredient, which poses certain problems. ( 8 ) THE Section provides for a presumption to be drawn once the basic factors are established. The death, referred to Section 304b is called dowry death , entailing a minimum punishment of 7 years for the accused. The terms harassment and soon before are not susceptible of any precise definition. What constitutes harassment and whether a particular incident can be said to have occurred soon before or not, would depend on the facts and circumstances of the case. When a legal presumption is provided against the accused and the punishment is too severe, the Court is required to be cautious in recording findings on these aspects. ( 9 ) IT is not in dispute that the death of the accused was on account of consumption of poison. There is no denial of the fact that the death of the deceased took place within 7 years from the date of her marriage. ( 9 ) IT is not in dispute that the death of the accused was on account of consumption of poison. There is no denial of the fact that the death of the deceased took place within 7 years from the date of her marriage. The first two ingredients of Section 304b can be said to have been established in this case. As regards the 3rd requirement, viz. , whether the deceased has been harassed by the accused soon before her death and whether such harassment was the immediate cause of death needs to be examined. P. W. 1 has stated in her chief-examination that the deceased and A1 lived together happily for about 6 months and thereafter the deceased was sent to P. Ws. 1and 2 requiring her to sell the land and bring the sale proceeds. She has also deposed that the deceased was sent back by persuading that it will take some time to sell the land. She stated that one month thereafter, her daughter came once again with the same complaint. The matter was said to have been kept before the elders including P. W. 3 and after discussing the matter, she was sent back. About 20 days after the said Panchayat, P. W. 2 was said to have gone to the place of A1. At that time, the deceased once again complained to PW. 2 about the continued harassment. One month thereafter, they received the intimation about the death of their daughter. P. W. 2, the father of the deceased, in his chief examination, deposed that after the marriage, A1 looked after the deceased for about one year, and thereafter sent her back with a demand to sell the land. He does not speak about the Panchayat having been held or his visiting the place of the accused as spoken to by PW. 1. PW. 3 hails from the village of P. Ws. 1 and 2. He is said to have participated in the Panchayat that was held when the deceased was sent back by the accused. His evidence is only to the effect that a Panchayat was held and the Accused 1 and 2 were convinced not to sell the land. He stated that himself and other Panchayatdars went along with the deceased to drop her at the place of the accused. P. Ws. 1 and 2 did not speak to this fact. His evidence is only to the effect that a Panchayat was held and the Accused 1 and 2 were convinced not to sell the land. He stated that himself and other Panchayatdars went along with the deceased to drop her at the place of the accused. P. Ws. 1 and 2 did not speak to this fact. ( 10 ) EVEN if the depositions of P. Ws. 1 to 3 are taken on their face value, it is evident that none of them have stated that the deceased had ever told them of her intention to commit suicide, or as to the degree of harassment being of such an extent, as would drive her to take the extreme step of suicide. ( 11 ) IN this case, except P. Ws. 1 to 3, no other witness has spoken to about the cause of the death of the deceased. Under Section 32 of the Evidence Act, the statement of a dead person is relevant, in so far as it relates to the cause of death. Section 32 is an exception to the Rule as to inadmissibility of hearsay evidence. The person, whose statement is treated as relevant, will not be available for cross-examination. The witness, who reproduces the statements of the deceased, cannot vouch for the correctness or otherwise of the same. It is for this reason that the courts are required to be circumspect in appreciating the evidence, which falls within the ambit of Section 32. ( 12 ) UNDER the English Law, the statement of a dead person would become relevant, if only it is established that the deceased faced an imminent threat to his life or likelihood of occurrence of his death, when such a statement came to be made. Such a requirement is not provided under Section 32 of the Evidence Act. On the other hand, Section 32 (1) clearly stipulates that such statements are relevant, whether or not the person making them was under expectation of death. However, the statement of the dead person should be suggestive of cause of his or her death, though, the death may not have been in immediate or proximate contemplation. If this much is not evident, any statement of a dead person can be used as a substratum, to be carved out as the cause of his death. However, the statement of the dead person should be suggestive of cause of his or her death, though, the death may not have been in immediate or proximate contemplation. If this much is not evident, any statement of a dead person can be used as a substratum, to be carved out as the cause of his death. In the process, the witness and in certain cases, the Courts may be tempted to make their own legal projections or logical extensions to shape such statements as the causes of death. It is for this reason that the caution as regards appreciation of such evidence, in the Indian context is much more. P. Ws. 1 to 3 did not even state that the deceased Rama Devi had ever informed them of her intention to commit suicide, or to the effect that the harassment being faced by her was so severe as would leave her with no alternative except to commit suicide. That being the situation, it is not at all safe to invoke the principle underlying Section 32 of the Evidence Act and convict the accused for the offence under Section 304b IPC. The same is accordingly set aside. The evidence on record, however, discloses that A1 and A2 have harassed the deceased for bringing money, after selling the land given to her at the time of marriage. It is true that the prosecution failed to prove the factum of the deceased or A1 having been given 1 acre of land during marriage. However, the fact that the deceased was sent to her parents place more than once for bringing the amount is proved, beyond doubt. The evidence of P. W. 3, who is an independent witness, in so far as he deposed that Panchayat was held by himself and several others and that A1 and A2 have participated therein, does not suffer from any infirmity. It is not disputed that A1 and A2 have participated in the Panchayat held in the presence of PW. 3 and others. That pre-supposes the deceased having been sent to her parents place by Accused 1 and 2. Even as regards this, the accusation against the various accused differs. A1 and A2 are said to have participated in the Panchayat and were persuaded not to insist on selling the land. Through out the evidence of P. Ws. 3 and others. That pre-supposes the deceased having been sent to her parents place by Accused 1 and 2. Even as regards this, the accusation against the various accused differs. A1 and A2 are said to have participated in the Panchayat and were persuaded not to insist on selling the land. Through out the evidence of P. Ws. 1 and 2, there is no reference to A3, nor any specific act was attributed to her. Therefore, she cannot be accused of harassing the deceased. So far as A1 and A2 are concerned, both of them are guilty of the offence under Section 498a IPC inasmuch it is established that they have harassed the deceased for the purpose of dowry. ( 13 ) A1, being the husband of the deceased, was much more to blame. IN THE RESULT, (a) the conviction and sentence against A1 to A3 under Section 304-B is set aside; (b) A1 and A2 are convicted for the offence under Section 498-A IPC. A1 is sentenced to undergo RI for 2 years and to pay fine ofrs. 500/-; in default to undergo SI for 2 months. A2 is sentenced to undergo RI for 1 year 6 months and to pay fine of Rs. 500/-; in default to undergo SI for 2 months. (c) A3 shall stand acquitted of the charge against her. If she had paid any fine, the same shall be refunded to her; (d) The appeal is partly allowed as indicated above.