SELLAPPAN ALIAS PANDURANGAN Vs. UNION TERRITORY OF PONDICHERRY

JUDGEMENT

(1.) HAVING convicted for an offence under Sec.304-B, I.P.C. and sentenced to undergo rigorous imprisonment for a. period of nine years by the learned third Additional Sessions Judge, Pondicherry in S.C.No.75 of 1991 dated 28.8.1992, the appellant has preferred this appeal.

(2.) THE facts in brief are: THE occurrence took place on 27.4.1991 at about 8.30 P.M. Three years before the occurrence, the marriage of Vasuki was celebrated with the appellant. A girl child was born through the marriage. P.W.4 is the mother and P.W.5 is the grand father of the deceased. At the time of the marriage, P.Ws.4 and 5 promised to give five sovereigns of jewel to the deceased as dowry. As the jewel was not given, the appellant used to abuse and beat the deceased. On the evening of the date of occurrence, the deceased went to the house of her grand father and asked him to give the five sovereigns of jewel. However, he was unable to give the same. On her return to the house, the appellant asked her whether she has brought the jewel. When she replied the jewel was not given, he told her they promised to give five sovereigns and why you have not brought the same and abused her. Unable to bear the harassment and the nagging insult, at 8.30 P.M. the deceased doused herself with kerosene and set fire on her. THE deceased was rushed to the Government Hospital, Pondicherry, P.W.1, the duty doctor sent the intimation, Ex.P.1 to the Kalapet Police Station. P.W.10, the Sub-Inspector of Police received information at 10.15 P.M. from the Outpost Police Station attached to the Government Hospital, Pondicherry, and went to the hospital. As the condition of Vasuki was very serious, P.W.10 recorded the dying declaration of Vasuki in the presence of the doctor, P.W.2 after satisfying himself that she was conscious and she is able to answer the questions, which is Ex.P.2. THEreafter, P.W.10 returned to the police station at 11.30 P.M. and registered a case in Crime No. 42 of 1991 under Secs.498-A and 309, I.P.C. Ex.P.11 is the printed first information report prepared by him. He despatched the original first information to the Magistrate and copies to the Inspector of Police, Special Branch. On 1.5.1991 at 3.30 p.m. he arrested the appellant at Peria Kalapet and produced him before the Inspector at about 3.45 P.M. At 04.30 hrs, on 28.4.1991, Vasuki succumbed to the injuries and P.W.11 received the death intimation, Ex.P.3. THEn he altered the Sec. as 304-B, I.P.C. Ex.P.12 is the report prepared by P.W.11. P.W.11 inspected the scene of occurrence at 7.30 A.M. on 28.4.1991 and prepared the observation mahazar, Ex.P.5 in the presence of the witnesses and seized M.O.1, the kerosene lamp, M.O.2, small pieces of burnt petticoat, M.O.3 series (2 in number) broken piece of mud pot and Ex.P.13, guarantee card issued by the National Jewellery bearing the date 6.1.1991 under cover of mahazar, Ex.P.6. He recorded the statements of P.Ws.1, 2, 4, 5, 6 and 7. On a requisition from the Sub-Divisional Magistrate on 28.4.1991, P.W.9, the Tahsildar, Pondicherry conducted inquest over the dead body of Vasuki as the death took place within seven years of the marriage. He went to the Government Hospital, Pondicherry and examined P.W.4, P.W.5 Kuppusamy father of the deceased, the accused and another Sellappan and prepared the inquest report, Ex.P.10. According to P.W.9, the death of Vasuki was due to the harassment by the husband of the deceased and not bringing the jewel from her parents. THEreafter, he sent his requisition to the R.M.O. for conducting post-mortem on the dead body. Ex.P.15 is the report sent by P.W.9 to the Superintendent of Police.

(3.) THE Point:THE learned counsel for the appellant vehemently contended except Ex.P.2, the dying declaration, there is no other acceptable evidence to connect the appellant with the crime. According to the learned counsel, the dying declaration Ex.P.2 had not been recorded by a Magistrate, but by P.W.10, the Sub-Inspector of Police and the same has no evidentiary value. P.Ws.4 and 5, the mother and grand father of the deceased has not supported the case of the prosecution in the cross-examination that the appellant demanded five sovereigns of jewels and he was harassing her and picked up quarrel often soon before her death, as required under sub-clause (1) of Sec. 304-B, I.P.C. Pointing out the version of panchayatdars before the Tahsildar, P.W.9 that they had no suspicion in the death of Vasuki and that except verbal quarrel, the appellant never asked for more jewels, it was argued that there was no demand at any time by the appellant to bring five sovereigns of jewels. However, it is noticed from Ex.P.15 report that the panchayatdars stated on many a time Vasuki came to her parents" house and told them that her husband demanded more jewels. Ultimately in the report Ex.P.15, P.W.9 had clearly stated there was harassment on the part of the appellant, which ultimately compelled the deceased to commit suicide, which he had reiterated in his deposition also before the Court. In the dying declaration, Ex.P.2, the deceased had clearly stated that there used to be frequent quarrel between her and her husband and he used to harass her as to why she has not brought gold jewels and also used to beat her. He would also say very often, "go and die" and that on the date of occurrence she went to Cooliemedukuppam to her mother's house and after return to the house, her husband demanded whether she had brought the five sovereigns of jewels. When she replied in the negative, he told her, her parents have promised to give five sovereigns of jewel and why she has not brought the same and abused her. Unable to bear the harassment, she poured kerosene at 8.30 P.M. and set her ablaze. It appears from the evidence of P.W.10 that he went to the hospital to record the statement of Vasuki, and on seeing that the condition of Vasuki was very serious, he reasonably thought that she will die soon and therefore, recorded the dying declaration in the presence of the doctor and the doctor, P.W.2 had certified that Vasuki was conscious and she was in a fit condition to make the statement. THE doctor also has said that in his presence, P.W.10 recorded the statement. So far as the evidentiary value of Ex.P.2, it is suffice to refer the following two decisions: Jai Prakash v. State of Haryana , (1998)6 Supreme 212 and Ramawati Devi v. State of Bihar , A.I.R. 1983 S.C. 164. In the first decision, in paragraphs 3, 4 and 6, the following observations have been made by the Supreme Court of India: