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2003 DIGILAW 504 (AP)

Yadlapati Kutumbarao v. State Of A. P.

2003-03-28

DUBAGUNTA SUBRAHMANYAM

body2003
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS revision is filed against the judgment dated 18. 12. 2000 in criminal Appeal No. 65 of 1997 on the file of Sessions Judge, West Godavari at Eluru confirming the conviction of the accused for the offence under section 306 I. P. C. , imposed in S. C. No. 122 of 1995 on the file of Assistant sessions Judge, Kovvur, and reducing the sentence alone and imposing the sentence of four years rigorous imprisonment and fine of Rs. 250=00 for the offence under Section 306 I. P. C. ( 2 ) YADLAPATI Satyavathi (deceased) is the legally wedded wife of the accused. Deceased and accused had two children. The deceased was pregnant with a third baby in her womb. She was in an advanced stage of pregnancy on 27. 5. 1994. She poured kerosene on her body at about 5. 00 a. m. on that day and set fire to herself in the residence of her husband - accused. She sustained extensive burn injuries. Accused put off the flames. With the help of others, he moved the deceased to the hospital for treatment. She died in the hospital on the same day at about 1. 50 p. m. While she was undergoing treatment for her burn injuries, after receiving medical intimation from the hospital, the Sub Inspector reached the hospital and recorded her statement Ex. P. 13 at about 8. 15 a. m. , in the presence of the medical Officer treating the deceased. The Sub Inspector registered f. I. R. , Ex. P. 15 on the basis of Ex. P. 13 statement of the deceased. The mandal Revenue Officer P. W. 9 received similar medical intimation from the hospital. He proceeded to the hospital and in the presence of Medical officer recorded a statement Ex. P. 8 of the deceased from 8. 30 a. m. , to 9. 00 a. m. , on the same day. Medical Officer certified that at the time of giving the two statements Exs. P. 8 and P. 13, the deceased was conscious and in a fit condition to give the statements. Later P. W. 9 conducted inquest over the dead body of the deceased. 30 a. m. , to 9. 00 a. m. , on the same day. Medical Officer certified that at the time of giving the two statements Exs. P. 8 and P. 13, the deceased was conscious and in a fit condition to give the statements. Later P. W. 9 conducted inquest over the dead body of the deceased. According to the prosecution the accused during the third pregnancy of his wife suspected her fidelity and began to ill-treat his wife saying that she did not become pregnant through him and she was having affairs with some others. On 25. 5. 1994 also the accused beat her suspecting her fidelity. The deceased informed senior paternal uncle of accused about the misconduct of her husband. He promised her that he would look into the matter and settle the dispute. On 26. 5. 1994 the deceased due to humiliation did not take her meal. During that night, accused enquired her whether she had taken food or not. She informed her husband that she does not want to take meals. Then the accused told her that it is immaterial for him whether she takes food or not and whether she is alive or dead. Due to the constant harassment and ill-treatment by her husband, the deceased decided to die and thereafter poured kerosene and set fire to herself. The accused was charged for the offence under Section 306 I. P. C. The trial Judge placing strong reliance on the two dying declarations Exs. P. 13 and P. 8 and also the evidence of mother and other relations of the deceased, held that the accused is responsible for the suicide of his wife and he committed offence punishable under Section 306 I. P. C. The trial Judge sentenced the accused to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs. 250=00 for the offence under Section 306 I. P. C. The accused preferred an appeal before the Sessions Judge at Eluru. The learned Sessions Judge on a consideration of evidence available on record confirmed the conviction of the accused for the offence under Section 306 i. P. C. He reduced the sentence of imprisonment alone from 7 years to 4 years. Aggrieved by the said judgment of the Sessions Judge, the accused preferred the present revision. The learned Sessions Judge on a consideration of evidence available on record confirmed the conviction of the accused for the offence under Section 306 i. P. C. He reduced the sentence of imprisonment alone from 7 years to 4 years. Aggrieved by the said judgment of the Sessions Judge, the accused preferred the present revision. ( 3 ) THE learned counsel for the accused contended that mensrea is an important ingredient for the offence under Section 306 I. P. C. , and there is no evidence to accept that the accused abetted or incited the deceased to commit suicide. He also contended that the evidence of the relations of the deceased is interested testimony and cannot be accepted. ( 4 ) HE relied upon three decisions. The first decision is a decision of calcutta High Court reported in NIHARBALA BANERJEE Vs. STATE (1 ). The calcutta High Court held that the mere fact that the deceased wife was treated by the accused husband and her mother-in-law with cruelty is not sufficient to prove that the accused abetted commission of suicide by the deceased. It further held that in the absence of proof of any direct or indirect acts of incitement to the commission of suicide or a conspiracy or any act facilitating the commission of suicide, it cannot be said that the accused were guilty of abetment to commission of suicide by the deceased merely because they treated the deceased with cruelty. The attention of Calcutta High Court was invited to the amended provision in section 113-A of Evidence Act regarding presumption of law. The High Court held that the said provision must be regarded as ex post facto law having no retrospective operation. The suicide by the deceased in the present case was committed after the said provision was inserted in the Evidence act. The said provision applies to the facts of the present case. Undisputedly the deceased died within seven years of her marriage with the accused. Her death is an unnatural death. The impact of the said provision will be considered at a later stage. Therefore, the decision of Calcutta high Court is not applicable to the facts of the present case. ( 5 ) ANOTHER decision relied upon is a judgment of Punjab and Haryana High court reported in MAHAL SINGH Vs. STATE OF PUNJAB (2 ). The impact of the said provision will be considered at a later stage. Therefore, the decision of Calcutta high Court is not applicable to the facts of the present case. ( 5 ) ANOTHER decision relied upon is a judgment of Punjab and Haryana High court reported in MAHAL SINGH Vs. STATE OF PUNJAB (2 ). In that case the accused who was a friend of the deceased forced her to get herself photographed with one of the accused in two poses which show that they were intimate with each other. Later the said person and his relations who helped him in taking the photo threatened her to marry the accused with whom she was photographed or else she should die and she would be kidnapped by them. The High Court held that the accused wanted to blackmail the girl so as to get her married to him or to force her for illicit intercourse and it cannot be said that he had any intention on his part that she should commit suicide. The above facts have no application to the facts of the present case. ( 6 ) THE last decision relied upon is a decision of Karnataka High Court reported in STATE OF KARNATAKA Vs. Dr. H. A. RAMASWAMY (3 ). The facts of the case are that the deceased Shashikala was married to A. 1 and subsequently, according to the prosecution, the husband was harassing the deceased for additional dowry and unable to withstand humiliation, dejection, despair, depression, she committed suicide on 7. 11. 1987 by hanging herself from a beam in the ceiling. The husband was prosecuted for the offences punishable under Section 498-A, 304-B and in the alternative under Section 306 I. P. C. The trial court acquitted the husband of the above charges. The High Court held in an appeal preferred against acquittal that the demand for additional dowry was not established by the prosecution and therefore the accused cannot be punished for the offence under Section 306 I. P. C. The above facts are not applicable to the facts of the present case. In the present case it is not the case of the prosecution that the husband - accused demanded additional dowry and in that connection ill-treated or harassed his wife. In the present case it is not the case of the prosecution that the husband - accused demanded additional dowry and in that connection ill-treated or harassed his wife. In the present case it is the consistent version of the prosecution that when his wife became pregnant for the third time, the husband suspected that she became pregnant through somebody else and began to ill-treat his wife. Therefore, in the present case, the court has to consider and decide whether ill-treatment by the husband suspecting the fidelity of his wife and suspecting that the then pregnancy of his wife is not through him and by through somebody else amounts to cruelty within the meaning of Section 498-A I. P. C. or not. If the court holds that the said misconduct on the part of her husband suspecting the fidelity of his wife and in that connection harassed her amounts to cruelty within the meaning of Section 498-A I. P. C. , as the unnatural death of the deceased took place within seven years of her marriage with the accused, drawing the presumption engrafted in Section 113-A of Evidence Act, the accused becomes liable for punishment under Section 306 I. P. C. ( 7 ) IN her two dying declarations Exs. P. 8 and P. 13 in unambiguous words the deceased stated that the accused was suspecting her fidelity and ill-treating her saying that she did not become pregnant through him. She had also stated in her two dying declarations that the accused assaulted her physically also. After leading a married life with the deceased for about six years and after the deceased begot admittedly two children through him, if a husband starts ill-treating and harassing his wife on the suspicion that she became pregnant through somebody else and not through him, in my considered opinion, it amounts to cruelty. Explanation-A to Section 498-A makes it clear that any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb or health of the woman amounts to cruelty for the purpose of Section 498-A I. P. C. Absolutely there are no reasons whatsoever to disbelieve the version put forward by the deceased in her statements Exs. P8 and P. 13. P8 and P. 13. No motive is attributed by the accused to his wife for blaming him entirely as responsible for her committing suicide on the fateful day. It is to be stated that in her two statements the deceased categorically mentioned that her parents-in-law are treating her well. It is a definite indication that she did not implicate any innocent person as responsible for her committing suicide. She implicated her husband alone with whom she has no other misunderstanding except her husband suspecting her fidelity. ( 8 ) IT is the contention of the accused that he had not abetted his wife in the commission of suicide. It is now necessary to consider the provision in Section 113-A of Evidence Act relating to presumption as to abetment of suicide by a married woman. This provision lays down that when a question whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. In the present case, as already noticed, the wife committed suicide within seven years of her marriage. She was ill-treated mentally and physically by her husband constantly on the ground that her third pregnancy was not through him but through somebody else. The said harassment and ill-treatment amounts to cruelty and misconduct covered by Explanation a to Section 498-A I. P. C. All the circumstances have to be taken into consideration. The wife had unequivocally alleged that due to the said ill-treatment and cruelty on the part of her husband she committed suicide. The husband did not come forward with any other version as a motive for her wife to commit suicide. He has absolutely no other version. Therefore, there are no reasons not to draw any presumption as envisaged under Section 113-A of Evidence Act that the suicide by the deceased was abetted by her husband - accused. No circumstances rebutting the presumption is brought to the notice of this court by accused. He has absolutely no other version. Therefore, there are no reasons not to draw any presumption as envisaged under Section 113-A of Evidence Act that the suicide by the deceased was abetted by her husband - accused. No circumstances rebutting the presumption is brought to the notice of this court by accused. ( 9 ) COMING to the evidence of mother and other relations of the deceased that the deceasedinformed them about ill-treatment by the husband suspecting her fidelity, their evidence cannot be brushed aside on the sole ground that they are related to the deceased. Further, their evidence is corroborated by the two declarations Exs. P. 8 and P. 13 given by the deceased. Their evidence cannot be discarded on the ground of interested testimony. ( 10 ) IN her dying declarations the deceased stated that her husband - accused brought her and admitted her in the hospital. At the time of she giving the statements Exs. P. 8 and P. 13 her blood relations, like her mother, etc. , were not present by her side. Only her husband and some others interested in her husband alone were present in and around her bed in the hospital when she gave the statements Exs. P. 8 and P. 13. Unless and until her version is perfectly true, she would not have stated in her statements that due to the constant ill-treatment by her husband suspecting her fidelity, she was forced to commit suicide. As her mother or any of her blood relations were not present near her before she gave the two statements Ex. P. 8 and Ex. P. 13, under any circumstances it cannot be said that she was tutored to present a false version. It is already noticed supra that deceased did not implicate any innocent person. She has no motive to blame wrongly her husband. This court accepts the truth and veracity of her version leading to her suicide. It is thus clear that she committed suicide due to cruelty on the part of her husband and in view of the legal presumption to be drawn invoking Section 113-A, Evidence Act, accused abetted the commission of suicide by his wife. This court accepts the truth and veracity of her version leading to her suicide. It is thus clear that she committed suicide due to cruelty on the part of her husband and in view of the legal presumption to be drawn invoking Section 113-A, Evidence Act, accused abetted the commission of suicide by his wife. ( 11 ) THE learned counsel for the accused further contended that as the accused went to the rescue of the deceased, put down the flames and took her to the hospital for treatment, it is to be held that the accused had not abetted the suicide by his wife. I do not find any substance in the said contention. These circumstances amount to mitigating circumstances to be considered for imposing a lesser sentence. The learned Sessions Judge has substantially reduced the sentence imposed by the trial court. The crux is whether the cruelty or ill-treatment or misconduct on the part of her husband is of such a nature to drive the married woman to commit suicide, etc. , within the ambit of Section 498-A I. P. C. , or not. It is already noticed that the conduct, ill-treatment and harassment by the accused - husband suspecting that his wife - deceased became pregnant through somebody else amounts to a cruelty on his part within the ambit and scope of Section 498-A I. P. C. There are no justifiable grounds to interfere with the conviction of the accused for the offence under Section 306 I. P. C. The learned counsel for the accused made a request to reduce the sentence imposed on the accused. In the circumstances of the present case, as the accused constantly ill-treated his wife suspecting her fidelity, I am not inclined to reduce the sentence. ( 12 ) IN the result, the revision is dismissed. Conviction and sentence imposed by the Sessions Judge are confirmed.