SANAGALA YAGNA SREE Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The conviction of the appellant-accused for an offence punishable under Section 306 I.P.C., for which sentence of 8 years R.I., and fine of Rs. 5,000.00 was imposed and for an offence punishable under Section 498-A I.P.C., for which sentence of 3 years R.I. and fine of Rs. 2,000.00 was imposed.

(2.) The prosecution is founded on the dying declaration of Bhagya Lakshmi who was the wife of the accused. In that declaration recorded by the Magistrate PW-4 on 12-5-1990 at 12.20 p.m. she said that she was married to the accused for the past 2 years and was blessed with a son, she was of six months pregnancy, her husband has worked as Medical Representative at Visakhapatnam in Torrent Company, Later joined Apex Company at Rajhamundry and thereafter they came to Rajahmundry in March of previous year, he used to bring to their house one woman by name Sridevi who was teaching tailoring and when she objected, he used to beat her and on the previous day at about 7 O'clock he beat her with a belt indiscriminately and when she wanted to go out, he obstructed and abused her and therefore unable to bear the torture meted out by him, she pour kerosene on her body and set fire to herself. When she raised a hue and cry, her husband and neighbours rushed to her and put off the fire and her husband took her to the private nursing home and later he brought her to the Government hospital where she gave the dying declaration. She also stated that from the beginning her husband used to ill-treat and torture her at the instigation of her in-laws and husband's sister and he would not bring anything to the house and won't give money either and cannot provide food properly. On the basis of this declaration, the accused as well as his father and mother were prosecuted. The other evidence on record is that of the brother of the deceased PW-1 who stated that the accused used to demand that land of Ac. 1.10 cents given to the deceased as a marriage present should be sold for buying a scooter for him, that he developed illicit intimacy with Sridevi and was bringing her to the house and he was beating the deceased often. He also stated that after their coming to Rajahmundry, there was a mediation by one Mr. Krishna Reddy in respect of the differences between the couple and even after the mediation, the conduct of the accused had not changed. The deceased had given a report Ex. P.2 to the Rajahmundry Town Police where-upon an assurance was given by the accused Ex.P.3 and deceased also gave an assurance Ex. P.4. The other witnesses were PW-2 who was the neighbour who had witnessed the occurrence of rescue of the deceased after she had set fire to herself and PW-3 who was the Doctor who had examined her. PW-4 is a Magistrate who recorded the dying declaration. PW-5 is the mother of the deceased who also stated that the deceased had been subjected to cruel treatment by the accused and corroborated most of the evidence of PW-1. PW-6 is the mediator who had been approached by the couple on the earlier occasion for reconciliation. PW-7 is the witness for the observation report. PW-8 is the Head Constable and PW-9 is the Sub-Inspector who investigated the matter. The learned Sessions Judge after going through the evidence came to the conclusion that the prosecution has proved that the accused appellant was guilty of abetting the suicide of the deceased and accordingly convicted him under Section 306 I.P.C. as well as under section 498-A I.P.C. But he was of the view that there was no direct evidence in respect of the parents whom he acquitted.

(3.) In this appeal the learned counsel for the accused-appellant submitted that the dying declaration was not true and should not be relied upon. He pointed out that there was a statement in the dying declaration that the deceased was pregnant whereas in fact she was not pregnant and this indicates that she was not clear about her statement that she was making. He also stated that the doctor who certified her to be conscious was not examined to prove that she was not only conscious but also fit to give the declaration. The other discrepancy in the dying declaration which the learned counsel depended upon was that the statement regarding the illicit relationship of the accused with one Sridevi had not been given on earlier occasions. He pointed out that in the complaint of the deceased to the police Ex.P.2 this allegation was added at the bottom left hand corner on the side of the signature indicating that it was written in that document after the complaint had been signed by the deceased. He also pointed out that both PW-1 and PW-6 had not mentioned about this to the Inspector in the statement recorded under Section 162 Cr.P.C. He also pointed out that PW-5 has testified in his evidence that the accused had beaten the deceased in her presence, whereas this allegation was not made before the police in her Section 162 Cr.P.C. statement. The learned counsel argued that for all these reasons the dying declaration was not credible and the conviction cannot be sustained on the basis of such a dying declaration. He also submitted that the allegation of demand for sale of land was not made in the dying declaration at all and therefore even under Section 498-A the ingredients of sub-section (B) of the Explanation were not present and if at all the question will be only with reference to sub-section (A) which refers to wilful conduct of the nature which is likely to drive the woman to commit suicide. He argued relying on the decision of this Court in C. Veerudu v. State of A.P. (1988) 2 ALT 171 : (1989 Cri LJ NOC 52) that the conduct referred to in this section should be much more than matrimonial cruelty and should be accompanied with some mens rea before it could be considered as sufficient for conviction in that section. He also referred to the decision of the Supreme Court in State of West Bengal v. Orilal Jaiswal AIR 1994 SC 1418 : (1994 Cri LJ 2104) to contend that a presumption under Section 113.A of the Evidence Act is rebuttable and a conviction under Section 306 I.P.C. cannot be sustained only because there was some cruelty within the meaning of Section 498-A I.P.C.