Kodam Gangaram and others vs State of A.P.

This appeal is directed against the judgment dated 3-3-1993 in SC No.261 of 1991 on the file of Sessions Judge, Karimnagar, under winch accused No. 1 has been convicted for the offence u/s 304-B of Indian Penal Code (IPC) and sentenced to undergo Rigorous Imprisonment for seven years and further convicted for the offence u/s 498-A IPC and sentenced to undergo Rigorous Imprisonment for three years and a fine of Rs.100/- and in default to undergo Simple Imprisonment for one month. Accused No.2 and 3 have been convicted for the offence u/s 498-A IPC and sentenced to undergo Rigorous Imprisonment for three "years each, and to pay a fine of Rs.100/- each in default, to undergo Simple Imprisonment for one month each.

The facts relevant to this appeal may be stated briefly as follows:

The deceased-Anasurya was married to accused No.l on 20-4-1990. It is in the evidence that at the time of marriage the parents of the deceased, PWs.4 and 5, promised to give 2-1/2 tulas of gold to accused No.l but at the time of marriage only 1/2 tula of gold ring was given and the balance of two tulas of gold remained to be given. Originally, PWs.4 and 5, parents of the deceased, are the residents of Sankepalli; and accused No.1 is the resident of Thangallapalli from where accused No.l is said to have shifted to Siricilla a month prior to the death of the deceased. It appears that PW4 had been living at Bheewandi in connection with his work on power loom. The accused is said to have made persistent demand for the balance of two tulas of gold and in that connection he has been harassing the deceased. Apart from other instance of harassing it is in the evidence of PWs.4 and 5 that one month prior to the death of the deceased, accused No.l and the deceased went to Bheewandi to visit the sister of accused No. 1, accused No.3, who was also living at Bheewandi. During the visit accused No.l and the deceased met PW4 and they renewed the demand for the balance of two tulas of gold. It is in the evidence of PW4 that on that occasion accused No.l told PW4 that he should either give two tulas of gold or Rs. 10,000/- cash. Otherwise, it would not be good. PW4 promised to give the balance of gold jewellery within three or four months. Thereafter, accused No. I and the deceased returned back to Thangallapalli. On 14-12-1990 PW4 received a telegram that his daughter died. He left Bheewandi and reached Sankepalli on the next day and by then the deceased was cremated. It appears that on 12-12-1990 at about 4.30 p.m. the house of accused No.l at Siricilla was on fire and on the information of PW2, the neighbour of PW1, the Fire Officer, went to the house of the accused with Fire Engine and extinguished the fire. The deceased was shifted in the same fire engine vehicle to the Government Hospital, Siricilta where she was admitted. PW10, Medical Officer, gave information about this to the Police and also to the concerned Magistrate. PW14, Magistrate, went to the Hospital and recorded the statement of the deceased-Ex.P5. In the meanwhile, PW15, Head Constable, also went to the Hospital and recorded the statement of the deceased-Ex.P12 which was treated as FIR and a case in Crime No.160 of 1990 was registered and FIR Ex.P13 was issued and investigation was taken up. PW12, Mandal Revenue Officer, called in who conducted the inquest over the dead body and prepared the inquest report Ex.Pl. Thereafter, the dead body was sent for post-mortem examination and PW8 conducted the postmortem examination and gave post-mortem report-Ex.P2. In his opinion the deceased died on account of deep 95% burns. During the course of investigation besides PW4-father of the deceased, PW5-mother and PW6-sister of the deceased have been examined. PW3 is a neighbour who saw the flames from the house of accused No.l. PW7 is the Panch who attested the Inquest Report. PW15 is the Head Constable who went to the scene of offence and seized MOl-kerosene tin and MO2-partly burnt cloth pieces under Panchanama, Bx.P3 which was attested by PW9. PW10 is the doctor who gave intimation to the Police and the Magistrate and was present during recording of dying declarations of the deceased.., PW 11 is the Deputy Director (Investigation) who investigated into the offence. PW13 is the Civil Assistant Surgeon in the Head Quarters Hospital, Karimnagar, where the deceased was admitted. PW16 is the Civil Surgeon who treated the deceased at Karimnagar Head Quarters Hospital. PWs.17 and 18 are the Investigating Officers. Thus, PWs.l to 18 were examined on behalf of the prosecution and Exs.P1 to P15 and MOs.1 to 3 were marked. The accused have not chosen to examine any defence evidence on their behalf. The learned Sessions Judge believed the evidence of prosecution and convicted and sentenced the accused as stated above. The question for consideration is whether the prosecution succeeded in proving the guilt of accused beyond reasonable doubt. The prosecution mainly depends on the evidence of dying declarations of the deceased recorded by PW14, Magistrate, and PW15, Head Constable. The prosecution also relies on the evidence of father (PW4) Mother (PW5) and sister (PW6) of the deceased as to the demand for gold and harassment to which the deceased was subjected to by the accused in connection with the demand. The prosecution also relies on the evidence of recovery of MO1, Kerosene tin, said to have been recovered from the place where the deceased with burn injuries was found in her house to show that it was not a mere fire accident. In the dying declaration-Ex.P5 recorded by the Magistrate-PW14 the deceased made a categorical statement that her parents promised to give 2-1/2 tulas of gold in the marriage and gave only 1/2 tula gold and that for the balance of two tulas her husband was beating her. She refers to specific instance that she was beaten at Bheewandi also for the said gold. She further stated that as her parents are poor and they are living on the earnings of her elder brother. The torture of the accused became unbearable and she poured kerosene on herself and lit fire. She merely mentions the names of the three accused in this dying declaration and attributes torture and harassment specifically to her husband-accused No.1. But, in Ex.P12, recorded by the Head Constable-PW15, she seems to have implicated all the three accused by stating that her husband, her mother-in-law and her sister-in-law used to abuse her to get the agreed gold and added that her husband had beaten her twice or thrice in that connection. Taking this into account, on (he ground that accused Nos.2 and 3 had no opportunity to harass the deceased in connection with the demand for dowry, the trial Court acquitted accused Nos.2 and 3 of the offence u/s 304-B IPC.

The learned Counsel for the accused, however, contends that even in respect of accused No.l the dying declarations in Ex.P5 or Ex.P12 cannot constitute basis for conviction. It is firstly pointed out that the doctors-PW10 and another were said to be present when Ex.P5 was recorded by PW14, Magistrate, but the endorsement made by PW10 merely mentions that the deceased was conscious all through the statement. The contention of the learned Counsel is that it is not mere consciousness which is relevant, but the prosecution must show that the deceased was in a state of mind in which she could have given a statement which could be considered as a genuine representation of her thoughts. It is argued that neither PW10 nor PW14, Magistrate, has stated anything about the state of mind of the deceased. On this ground, it is contended that Ex.P5 cannot be accepted as the basis for conviction of the accused.

I am unable to agree with the contention. Whether the deceased was in a proper state of mind and able to give a statement implicating the accused would depend not on what words PWs.10 and 14 used in describing her state. Mere omission to mention that she was in a proper state of mind to be able to depose in itself is of little significance. The fact remains that Ex.P5 itself discloses that the Magistrate has put various questions preliminary to the actual recording of the circumstances leading to her death. Answers given pursuant to such questions and what the deceased has stated on the substantial questions and the reasons of her death all go to indicate that the deceased was in absolutely prefect state of mind to know as to what she was talking about and to give expression to those thoughts.

The further contention to advance this argument that as stated by PW10 the deceased had deep 95% burns and as such it is unbelievable that she could have given such a lengthy statement has no force considering the evidence of PW14 that he took all the precautions that a responsible Magistrate was expected to take before and while recording a dying declaration. Thus, there is nothing intrinsically improbable either as to the circumstances in which Ex.P5 was recorded or with reference to the contents of Ex.P5. Further, the version given by the deceased herself in Ex.P5 finds considerable corroboration from the evidence of PWs.4, 5 and 6. PW4, father of the deceased, has explicitly stated that during the visit of accused No.l and the deceased to Bheewandi both of them demanded for two tulas of gold which was due and that accused No. 1 almost threatened of some unknown consequences if the demand was not fulfilled. It is further pointed out that PW4 had omitted to state in his statement to the Police that the deceased also accompanied accused No.l to Bheewandi on that visit. This omission does not detract from the evidence of PW4 that the deceased and accused No.l visited Bheewandi and such a demand was made. This was about one month prior to the death of the deceased.

Mr. I. Aga Reddy, learned Counsel appearing for the accused, contends that there is a gap of one month between the alleged last act of harassment and cruelty and the date of death of the deceased - 13-12-1990, and as such the requirement that the harassment or cruelty must be proved to have been perpetrated ''soon before'' the death of the deceased as required for the offence u/s 304-B IPC is not satisfied.

First of all what could be the time to satisfy the requirement ''soon before'' depends on the circumstances of the case, the nature of the demand and the nature of harassment alleged. But, in this case this question does not really arise for consideration inasmuch as the last incident of harassment about one month prior to the date of death is not sought to be made the only basis for the inference of''Dowry Death'' for the purpose of Section 304-B IPC. In this case, the statement of the deceased by way of dying declaration in Ex.PS is available to conclude that her death was impelled or prompted by the harassment to which she was subjected to. So notwithstanding as to the time when the particular positive incident of harassment took place, the statement of the deceased discloses that she continued to be haunted by the depressing influence of the harassment which resulted in her taking the extreme step of committing suicide. Unless it is shown that the deceased had some demonstrable reason for making a false statement in this regard, the presumption is that her suicide was the result of harassment to which she was subjected to. As stated above, the statement made by the deceased in Ex.P5 is consistent with other circumstances in the case. There is supportive evidence of PWs.4, 5 and 6 that there was a demand for two tulas of gold from accused No.1 and that there was harassment in connection with the demand. Considering the totality of circumstances, I have no reason to differ from the learned Sessions Judge that the prosecution has succeeded in proving the offence u/s 304-B and 498-A IPC against accused No. 1.

It is further contended by the learned Counsel for the accused that as far as accused Nos.2 and 3 are concerned, the dying declaration-Ex.P5 does not implicate them. It is true that though the dying declaration recorded by the Head Constable-PW15 in Ex.P12 does impute harassment by way of abusing to accused Nos.2 and 3 also in connection with demand for gold, there is a significant omission on this aspect in the earlier dying declaration Ex.P5. Thus, the evidence available from the dying declaration cannot be used against accused Nos.2 and 3. But because of this slight improvement in the subsequent dying declaration the probative value of Ex.P5 is not affected. Now, what remains is the evidence of PWs.4, 5 and 6. It is rightly pointed out by the learned Counsel for the accused that accused No.3 was living at Bheewandi and accused No.2 was living at Thangallapalli. At any rate even assuming that for some time accused Nos.2 and 3 lived at Siricilia where accused No.l was living for one month prior to the death of the deceased, there was no evidence to show that at any time these three accused lived together in the same house. Under these circumstances, it is difficult to conceive that accused Nos.2 and 3 must have had any opportunity to consistently subject the deceased to any harassment in connection with the demand. The mere fact that they might have sympathized with accused No.l for such demand does not satisfy the requirement of harassment on the part of accused Nos.2 and 3 and, therefore, they cannot be found guilty for the offence u/s 498-A IPC also.

In the result, the appeal is partly allowed; accused Nos.2 and 3 are found not guilty and acquitted of the charge u/s 498-A IPC and the conviction of accused No.l for the offences under Sections 304-B and 498-A IPC and the sentence imposed by the trial Court are confirmed. The bail bonds of accused Nos.2 and 3, who are said to be on bail, shall stand discharged.