{"id":106733,"date":"2004-02-24T00:00:00","date_gmt":"2004-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nallam-veera-stayanandam-ors-vs-the-public-prosecutor-high-court-on-24-february-2004"},"modified":"2016-03-10T03:41:38","modified_gmt":"2016-03-09T22:11:38","slug":"nallam-veera-stayanandam-ors-vs-the-public-prosecutor-high-court-on-24-february-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nallam-veera-stayanandam-ors-vs-the-public-prosecutor-high-court-on-24-february-2004","title":{"rendered":"Nallam Veera Stayanandam & Ors vs The Public Prosecutor, High Court … on 24 February, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nallam Veera Stayanandam & Ors vs The Public Prosecutor, High Court … on 24 February, 2004<\/div>\n
Author: S Hegde<\/div>\n
Bench: N Santosh Hegde, B P Singh.<\/div>\n
           CASE NO.:\nAppeal (crl.)  920 of 1997\n\nPETITIONER:\nNallam Veera Stayanandam & Ors. \t\n\nRESPONDENT:\nThe Public Prosecutor, High Court of A.P. \n\nDATE OF JUDGMENT: 24\/02\/2004\n\nBENCH:\nN Santosh Hegde & B P Singh.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
SANTOSH HEGDE, J.\n<\/p>\n
\tThe appellants before us were charged of offences
\npunishable under section 304B and 498A IPC and were
\nsentenced to undergo RI for a period of 7 and 2 years
\nrespectively by the by the Sessions Judge, East Godavari
\nDistrict at Rajahmundry, Andhra Pradesh. Said conviction and
\nsentence of the appellants came to be confirmed by the High
\nCourt of Judicature, Andhra Pradesh at Hyderabad by the
\nimpugned judgment. Now they are in appeal before us.
\nProsecution case necessary for disposal of this appeal is as
\nfollows :\n<\/p>\n
\tThe first appellant before us is the son of appellant Nos.2
\nand 3 while appellant No.2 is the husband of appellant No.3.
\nThe first appellant was married to one Aruna Kumari which
\ntook place on 18.5.1990. It is the prosecution case that Aruna
\nKumari was the daughter of the sister of A-1. Thus, in reality
\nAruna Kumari had married her own maternal uncle. It is the
\nfurther case of the prosecution that the appellants were
\nconstantly making demand from the parents of Aruna Kumari
\nwhich, inter alia, included 1\/3rd share in a house belonging to
\nthe parents of Aruna Kumari. Thus, the appellants were
\nconstantly harassing said Aruna Kumari. The prosecution in
\nsupport of its case relating to harassment relied upon Ex. P-4 to
\nP-6  letters written by Aruna Kumari between 12th May and 5th
\nAugust, 1991. Prosecution also relies upon a Panchayat Ex. P-8
\nwhich took place and an agreement Ex. P-9 executed by the
\naccused 1 and 2 undertaking to look after Aruna Kumari
\nproperly and not to harass her. It is the further case of the
\nprosecution that on 12.7.1992 at about 3 p.m. deceased doused
\nherself with kerosene and set herself afire due to which she
\nsuffered severe burn injuries. She was then taken to
\nGovernment Hospital, Kothapeta, where noticing her condition
\nthe doctor sent a requisition to the Munsif Magistrate to make
\narrangements to record her dying declaration. Consequent to
\nthis request the Munsif Magistrate, PW-13 proceeded to the
\nGovernment Hospital and recorded the dying declaration Ex. P-
\n28 at about 5.30 p.m. He states that before recording he asked
\nthe opinion of the doctor PW-10 whether the patient was in a fit
\ncondition to make a declaration and on being told that she was
\nin a fit condition, he started recording her declaration. He states
\nthat while recording the said statement, he asked the Police and
\nothers attending on the patient to leave the room and he
\nrecorded her statement in a question and answer form. A
\nperusal of this document Ex. P-28 shows that the deceased
\nstated that she suffered the burn injuries accidentally because of
\na stove burst while she was preparing tea. There is nothing in
\nthis dying declaration to indicate even remotely that she
\ncommitted suicide.\n<\/p>\n
\tSoon after this dying declaration was recorded, PW-11
\nwho was then working as a Head Constable in Kothapeta Police
\nStation, having received an intimation from the hospital,
\nproceeded to the hospital and recorded another statement of the
\ndeceased marked as Ex. P-25. This statement also contains a
\ncertificate of PW-10 as to the condition of the patient to make a
\ndeclaration. As per this dying declaration, the deceased stated
\nthat on being unable to bear the dowry demand and harassment
\nmeted out by her husband and in-laws, she poured kerosene on
\nherself and set herself ablaze, consequent to which she suffered
\nburn injuries. From the record it is seen that Aruna Kumari died
\nat about 7.30 p.m. on the same day. During the course of
\ninvestigation the prosecution examined nearly 14 witnesses out
\nof whom PWs.1 to 5 and 7 speak to the demand of dowry made
\nby the appellants as also the harassment meted out to the
\ndeceased. Prosecution has also produced Ex. P-4 to 7 — letters
\nwritten by the deceased to her parents narrating the nature of
\ndowry demand as also the harassment. Ex. P-8 is a
\nMemorandum drawn up by the Panchayatdars calling upon the
\nappellants to give an undertaking to treat the deceased properly.
\nEx. P-9 is an undertaking given by A-1 and A-2 to look after
\nthe deceased properly. It is on the basis of the above evidence
\ncollected during the course of investigation the appellants were
\ncharged for offences as stated above in the Court of District &
\nSessions Judge, Rajahmundry who as per his judgment dated
\n30.3.1994 convicted all the accused persons for offences
\npunishable under sections 304B and 498A IPC. The said
\nconviction and sentence came to be confirmed by the High
\nCourt of Judicature, Andhra Pradesh at Hyderabad by the
\nimpugned judgment and against which the appellants herein
\npreferred a SLP. When the said petition came up before the
\nCourt on 26.11.1996, this Court dismissed the petition of the
\nfirst appellant herein while notice confined to the petition of
\nappellant Nos.2 and 3 alone was issued. However,
\nsubsequently, by entertaining a review petition filed by the first
\nappellant as per its order dated 29.9.1997, this Court granted
\nleave in regard to the petitions of all the three appellants, hence,
\nall the 3 appellants are now before us in this appeal.
\n\tIn this appeal, Mr. P S Narasimha, learned counsel
\nappearing for the appellants, submitted that both the courts
\nbelow erred in rejecting the first dying declaration Ex. P-28 on
\nunsustainable grounds and further erred in placing reliance on
\nthe subsequent dying declaration Ex. P-25 recorded by a Police
\nofficial which gave a different version. He also submitted that
\nthe courts below erred in finding corroboration to the contents
\nof the dying declaration Ex. P-25 from the evidence of the
\nprosecution witnesses. He submitted that a dying declaration
\nrecorded by a Magistrate which is in conformity with the
\nrequirements of law, should always be preferred to an extra-
\njudicial dying declaration made to a Police Officer and that too
\nsubsequent to the recording of the first dying declaration.
\nLearned counsel pointed out if the contents of Ex. P-28, the
\ndying declaration made to the Munsif Magistrate are
\nunimpeachable and if the court is satisfied, reliance can safely
\nbe placed on the contents of the said dying declaration. Any
\namount of evidence to the contrary could not diminish the value
\nof such dying declaration. He submitted the fact that the
\ndeceased  died of accidental burns is not only spoken to by her
\nin unequivocal terms, the same is also supported by the entries
\nmade by the doctor, PW-10 in the information sent by him to
\nthe Police as also in the accident register Ex. P-20 and 21 which
\nwere entries and information made prior to Ex. P-28 which also
\nshows that the deceased had suffered accidental burns. He
\nsubmitted that there was a dispute between the families of the
\ndeceased and the appellants and all the witnesses who have
\nspoken about the harassment or demand for dowry are
\ninterested persons whose evidence cannot be relied upon to
\ndiscard the statement of the deceased herself as to the cause of
\nher death.\n<\/p>\n
\tMr. G. Prabhakar, learned counsel appearing for the
\nState, very strongly supported the judgments of the two courts
\nbelow and submitted that there is hardly any room for
\ninterference with the well-considered judgments of the two
\ncourts below. He submitted that there is no law which makes a
\ndying declaration recorded by a Police official either
\ninadmissible or, in any way, lesser in evidentiary value. It is his
\nsubmission that courts will have to weigh the evidentiary value
\nof these two dying declarations on their merit and if there is
\ncontradiction between the two, either reject both or choose one
\nwhich is more acceptable for its evidentiary value. In the instant
\ncase, he submitted that the evidence produced by the
\nprosecution shows that right from the beginning the appellants
\nhave been making undue demand for dowry and have also been
\nharassing the deceased both physically and mentally which is
\namply evidenced by the documentary evidence as well as the
\noral evidence produced by the prosecution. In such a case a
\ndying declaration which is in conformity with the said line of
\nevidence produced by the prosecution should be accepted
\ninstead of the one which is contrary to other acceptable
\nevidence produced in the case.\n<\/p>\n
\tWe have heard learned counsel and also perused the
\nrecords. It is true from the evidence led by the prosecution it
\nhas been able to establish that the appellants were demanding
\ndowry which was a harassment to the deceased. It is also true
\nthat the death of the deceased occurred within 7 years of the
\nmarriage, therefore, a presumption under section 113B of the
\nEvidence Act is available to the prosecution, therefore, it is for
\nthe defence in this case to discharge the onus and establish that
\nthe death of the deceased in all probability did not occur
\nbecause of suicide but was an accidental death.
\n\tIt is for the above purpose, learned counsel for the
\nappellants has strongly  relied on the dying declaration Ex. P-28
\nwhich according to him, is free from all blemish and is not
\nsurrounded  by any suspicious circumstances. We are of the
\nopinion that if the contents of Ex. P-28 can be accepted as being
\ntrue then all other evidence led by the prosecution would not
\nhelp the prosecution to establish a case under section 304B IPC
\nbecause of the fact that even a married woman harassed by
\ndemand for dowry may meet with an accident and suffer a
\ndeath which is unrelated to such harassment. Therefore, it is for
\nthe defence in this case to satisfy the court that irrespective of
\nthe prosecution case in regard to the dowry demand and
\nharassment, the death of the deceased has not occurred because
\nof that and the same resulted from a cause totally alien to such
\ndowry demand or harassment. It is for this purpose the
\nappellants strongly place reliance on the contents of Ex. P-28,
\ntherefore, we will have to now scrutinise the circumstances in
\nwhich Ex. P-28 came into existence and the truthfulness of the
\ncontents of the said document. It is the prosecution case itself
\nthat on the fateful day at about 3’O clock, the deceased suffered
\nsevere burn injuries and she was brought to the Government
\nhospital at Kothapeta. As per the evidence of PW-10 the doctor
\nwhen she was admitted to the hospital, he sent an intimation to
\nthe Police as per Ex. P-21 and also made an endorsement in Ex.
\nP-22, the accident register. In both these documents, he had
\nnoted that the deceased suffered accidental burn injuries due to
\nstove burst. It is not the case of the prosecution that this entry
\nwas made by the doctor at the instance of any one of the
\nappellants. At least no suggestion in this regard has been put to
\nthe doctor when he was in the witness box. As a matter of fact,
\nthere is considerable doubt whether any of the appellants was
\npresent at the time when the deceased was brought to the
\nhospital and was first seen by the doctor PW-10. On the
\ncontrary, according to the doctor, a large number of relatives
\nother than the appellants were present at that point of time when
\nthe deceased was brought to the hospital, therefore, it is
\nreasonable to infer that the information recorded by the doctor
\nin Ex. P-21 and 22 is an information given to the doctor either
\nby the victim herself or by one of the relatives present there,
\nwho definitely were not the appellants. From the evidence of
\nthis doctor, we notice that anticipating the possible death he
\nsent a message to the Munsif Magistrate to record a dying
\ndeclaration and the said Magistrate PW-13 came to the hospital
\nimmediately and after making sure that all the relatives and
\nothers were sent out of the ward and after putting appropriate
\nquestions to know the capacity of the victim to make a
\nstatement and after obtaining necessary medical advice in this
\nregard, he recorded the dying declarations which is in question
\nand answer format. It is in this statement the deceased
\nunequivocally stated that she suffered the injuries accidentally
\nwhile preparing tea. There has been no suggestion whatsoever
\nput to this witness when he was in the box to elicit anything
\nwhich would indicate that this statement of the deceased was
\neither made under influence from any source or was the
\nstatement of a person who was not in a proper mental condition
\nto make the statement. From the questions put by the Munsif
\nMagistrate, and from the answers given by the victim to the
\nsaid questions as recorded by the Munsif Magistrate we are
\nsatisfied that there is no reason for us to come to any conclusion
\nother than that this statement is made voluntarily and must be
\nreflecting the true state of facts. The trial court while
\nconsidering this dying declaration seems to have been carried
\naway by doubting the correctness and genuineness of this
\ndocument because of other evidence led by the prosecution
\nthus, in our opinion, erroneously rejected this dying declaration
\nwhich is clear from the following finding of the trial court in
\nregard to Ex. P-28 : “Her statement made to the Magistrate
\nwhich is at Ex.P-28 has been demonstrated to be an incorrect
\nstatement of fact and it appears that in the presence of the 3rd
\nappellant, she made the statement that from the burning stove
\nher sari caught fire while she was preparing tea.” We find
\nabsolutely no basis for the two reasons given by the trial court
\nfor coming to the conclusion that the deceased’s statement
\nunder Ex. P-28 is an incorrect statement. The court came to the
\nconclusion that this statement must have been made in the
\npresence of the 3rd appellant, a fact quite contrary to the
\nevidence of PWs.10 and 13. On the contrary, the Munsif
\nMagistrate specifically states that he asked everyone present
\nand who were unconnected with the recording of the statement,
\nto leave the room This has not been challenged in the cross-
\nexamination. Therefore, in our opinion, this part of the
\nfoundation on which the trial court rejected Ex. P-24 is non-
\nexistent. It is also seen from the above extracted part of the
\njudgment of the trial court that it held that it “has been
\ndemonstrated to be an incorrect statement of fact”. For this also,
\nwe find no basis. If the trial court was making the second dying
\ndeclaration as the basis to reject the first dying declaration as
\nincorrect then also in our opinion, the trial court has erred
\nbecause in the case of multiple dying declarations each dying
\ndeclaration will have to be considered independently on its own
\nmerit as to its evidentiary value and one cannot be rejected
\nbecause of the contents of the other. In cases where there are
\nmore than one dying declaration, it is the duty of the court to
\nconsider each of them in its correct perspective and satisfy itself
\nwhich one of them reflects the true state of affairs.
\n\tThe trial court in its turn while considering Ex. P-28
\nobserved thus : “I do not want to give much importance to the
\ndying declaration recorded by PW.13. The deceased out of
\nconfusion or live (sic) and affection towards her husband and
\nin-laws, who are no other than the grand parents might have
\nstated so.” With respect to the learned Judge, this finding in
\nregard to Ex.P-28 is based on inferences not based on record.
\nWe have already noticed that none of the accused was present
\nat the time Ex. P-28 was recorded. That apart, we fail to
\nunderstand if the finding of the trial court that Ex. P-28 came
\ninto existence because of love and affection towards her
\nhusband and in-laws, is correct then why did the deceased about
\n10 minutes later implicate the very same persons in Ex. P-25 of
\nhaving led her to commit suicide. In our opinion, unless there is
\nmaterial to show that the statement as per Ex. P-28 is given
\neither under pressure of the accused or is a statement made
\nwhen the victim was not in a proper state of mind or some such
\nvalid reason, the same cannot be rejected merely because it
\nhelps the defence. We have already observed even a harassed
\nwife can get burnt accidentally in which case her death cannot
\nbe attributed to harassment so as to attract section 304B IPC.\n<\/p>\n
          Having noticed the findings of the two courts below in
\nregard to Ex. P-25, we will now consider the dying declaration
\nrecorded by PW-11 as per Ex. P-25. This statement came into
\nexistence about 10 minutes after Ex. P-28 was recorded by the
\nMunsif Magistrate. We have already expressed our doubt as to
\nthe need for recording this statement when the Munsif
\nMagistrate on a request made by the doctor had already
\nrecorded a dying declaration as per Ex. P-28. It has come on
\nrecord that when PW-11 recorded this statement, he did not
\ntake the precautions which the Munsif Magistrate took in
\nsending the relatives of the victim out of the room. He also did
\nnot put preliminary questions to find out whether the patient
\nwas in a fit state of mind to make the said statement. It is to be
\nnoted here that the doctor in Ex. P-25 only states that the patient
\nis conscious. In the said statement, of course, the victim had
\nstated that she set fire to herself being unable to bear the
\nharassment meted out to her by her husband and in-laws. This
\npart of the statement in Ex. P-25 directly contradicts has earlier
\nstatement made to the Munsif Magistrate as per Ex. P-28. Ex.
\nP-28 is a document which exculpates the accused person of an
\noffence under section 304B IPC. There is no reason to
\ndisbelieve the contents of Ex. P-28 merely because it is not in
\nconformity with the prosecution case as to the harassment
\nmeted out to the victim. The courts will have to examine the
\nevidentiary value of Ex. P-28 on its own merit and unless there
\nis material to show that the statement made in P-28 is inherently
\nimprobable and the same was made by the victim either under
\npressure from outside source or because of her physical and
\nmental condition, the same cannot be rejected as untrue or
\nunreliable. The Magistrate by the preliminary questions had
\nsatisfied himself that the victim was in a fit condition to make
\nthe statement. In this background, we find no reason why Ex. P-
\n25 which was recorded by a Head Constable without following
\nthe proper procedure should be given preference. The courts
\nbelow, in our opinion, have fallen in error in rejecting Ex. P-28
\nand preferring to place reliance on Ex. P-25; more so in the
\nbackground of the fact that no suggestion whatsoever has been
\nmade either to the Munsif Magistrate or to the doctor as to the
\ncorrectness of Ex. P-28. Per contra, a specific suggestion has
\nbeen made to PW-11 the Head Constable that he had implicated
\nthe accused persons in Ex. P-25 at the instance of the relatives
\nof the deceased and her thumb impression was taken
\nsubsequently. Of course, he has denied this suggestion. Be that
\nas it may, the fact that Ex. P-25 came into existence a few
\nminutes after Ex. P-28 and was recorded without taking
\nnecessary precautions by a Police Officer, we think it more
\nappropriate to place reliance on Ex. P-28 rather than on Ex. P-\n<\/p>\n
25. If that be so, the death of the deceased will have to be
\nrelated to her having suffered burn injuries accidentally and
\nsuccumbed to the same. We are aware that since death of Aruna
\nKumari in this case occurred within 3 years of her marriage, a
\npresumption under section 113B of the Evidence Act is
\navailable to the prosecution, but since we have accepted the
\ncontents of Ex. P-28 as true, that presumption stands rebutted
\nby the contents of Ex. P-28. In such a case unless the
\nprosecution is able to establish that the cause of death was not
\naccidental by evidence other than the dying declarations, the
\nprosecution case under section 304B IPC as against the
\nappellants must fail.\n<\/p>\n
\tThe above finding of ours, however, will not exonerate
\nthe appellants of the charge under section 498A. We have
\nnoticed from the evidence of PWs.1 to 5 and 7 as also from Ex.
\nP-4 to 9 that the prosecution has established frequent demands
\nfor dowry as also harassment of the victim because of the non-
\npayment of dowry. In this regard, we are in agreement with the
\nfindings of the two courts below, though we have come to the
\nconclusion that the same finding would not assist the
\nprosecution to base a conviction under section 304B. In our
\nopinion the material produced by the prosecution in regard to
\nthe demand for dowry and harassment is sufficient to base a
\nconviction under section 498A IPC. Hence while allowing this
\nappeal and setting aside the conviction and sentence imposed
\nby the two courts below for an offence punishable under section
\n304-B IPC, we confirm the sentence imposed by the courts
\nbelow for an offence punishable under section 498A IPC.
\n\tWe are told appellants are on bail. Their bailbonds shall
\nstand cancelled. They shall serve out the balance of sentence, if
\nneed be. Remission for the sentence already served, if any, shall
\nbe given. The appeal is partly allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nallam Veera Stayanandam & Ors vs The Public Prosecutor, High Court … on 24 February, 2004 Author: S Hegde Bench: N Santosh Hegde, B P Singh. CASE NO.: Appeal (crl.) 920 of 1997 PETITIONER: Nallam Veera Stayanandam & Ors. RESPONDENT: The Public Prosecutor, High Court of A.P. DATE OF JUDGMENT: 24\/02\/2004 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-106733","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNallam Veera Stayanandam & Ors vs The Public Prosecutor, High Court ... on 24 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nallam-veera-stayanandam-ors-vs-the-public-prosecutor-high-court-on-24-february-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nallam Veera Stayanandam & Ors vs The Public Prosecutor, High Court ... on 24 February, 2004 - 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