Supreme Court of India
LELLA SRINIVASA RAOversusSTATE OF ANDHRA PRADESH
- Citation
- 2004 INSC 134
- Decided
- 26 February 2004
- Disposal
- Appeal(s) allowed
- Bench
- N SANTOSH HEGDE
Holding
The conviction under IPC section 498‑A cannot be sustained as the alleged conduct does not amount to cruelty and the inconsistent, uncorroborated dying declarations are insufficient to prove the offence.
Summary
The deceased Bhavani and her infant daughter set themselves on fire and died. The prosecution alleged that the husband, Lella Srinivas Rao, and his mother had subjected Bhavani to cruelty and harassment, driving her to suicide, and charged them under IPC sections 498‑A and 306. Two dying declarations were recorded: the first, by a magistrate, blamed only the mother‑in‑law; the second, five minutes later by a head constable, implicated both the husband and his mother. The deceased’s father and other relatives denied any cruelty, stating the dispute was over the upbringing of the husband’s sister’s children. The trial court convicted on both counts; the High Court upheld the 498‑A conviction but set aside the 306 conviction. The Supreme Court held that the alleged annoyance did not amount to cruelty, the dying declarations were inconsistent and uncorroborated, and hostile witness testimony alone could not sustain a conviction. Consequently, the Court acquitted the appellant of section 498‑A and affirmed the acquittal under section 306.
Issues considered
- Whether the conduct alleged against the husband and his mother constitutes cruelty and harassment under IPC section 498‑A.
- Whether inconsistent dying declarations can be relied upon to prove the offences under sections 498‑A and 306 IPC.
- Whether hostile witness testimony, without corroboration, is sufficient to sustain a conviction.
Legislation cited
- Indian Evidence Act, 1872s. 3, s. 32
- Indian Penal Code, 1860s. 306, s. 498-A
Subjects
crueltyharassmentsuicidedying declarationinconsistent statementshostile witnessSection 498-ASection 306Indian Evidence Actacquittal
Judgment
-- LELLA SRINIV ASA RAO A
v.
ST ATE OF ANDHRA PRADESH
FEBRUARY 26, 2004
[N. SANTOSH HEGDE AND B.P. SINGH, JJ.] B
Penal Code, 1860-Sections 306 and 498-A-Prosecution case that wife
committed suicide along with her 1 112 years old daughter owing to cruelty
and harassment meted out to her by her husband and his mother-Two C
inconsistent dying declarations recorded-Complicity of husband disclosed
only in the second declaration-No allegation by wife's father and other
relatives with regard to torture and harassment-According to them there was
some misunderstanding between husband and wife-Wife annoyed with the
fact of bringing up children of her husbands' deceased sister by her ~usband's
family-Conviction ofhusband and his mother under sections 498-A and 306- D
High Court upheld conviction under section 498-A but set aside conviction
under section 306-0n appeal Held: Act causing annoyance to wife cannot
be equated with cruelty and harassment-Also dying declaration inconsistent
and no other evidence to prove allegation of cruelty and harassment meted
out to wife-Hence, conviction under section 498-A set aside-Evidence Act,
1872-Sections 3 and 32. E
Evidence Act, 1872:
Section 32-Two dying declaration-inconsistency betwe_en-Evidentiary
value of-Held: It is not safe to act solely on such declarations to convict the
accused F
Section 3-Hostile witness-Testimony--Evidentiary value of-Held:
Their evidence does not automatically get rejected-If the evidence finds
. corroboration from the facts of the case, it may be taken into account while
judging the guilt of the accused
G
According to the prosecution, appellant-husband and his mother treated
the wife with such cruelty and harassed her to such extent that the wife
.,......... committed suicide. She set herself and her 1 1/2 year old daughter to fire and
later both of them succumbed to their injuries on the same day. This incident
659 I-I
660 SUPREME COURT REPORTS [2004] 2 S.C.R.
A took place about 3 years after their marriage. Wife was taken to the hospital
where two dying declarations were recorded. First dying declaration was
recorded by the Magistrate in which the general allegation of harassment was
made against the mother-in-law and second dying declaration was recorded
after 5 minutes by the Head Constable in which allegation of harassment was
B against husband as well as his mother and immediate cause for suicide was
harassment meted out to her by husband-appellant. Appellan~-husband and
his mother were charged under Section 498-A and 306 IPG. Prosecution
examined father of the deceased and other members of the family. They did
not support the prosecution case but disclosed that there. was
misunderstanding between appellant and deceased on account of the fact that
C the children of a deceased sister of the appellant were being brought up by
appellant's family. Trial Court finding the two dying declarations consistent
and supplementing each other, convicted and sentenced appellant and his
mother under.se.ctions 498-A and 306 WC. High Court upheld the.conviction
and sentence under section 498-A however, set aside the conviction under 306
D IPC. Appellant and his mother filed Special Leave Petitions. SLP of the mother
was dismissed. Hence the present appeal.
Appellant contended that there was no necessity for the Head Consta~le
to record another dying d~claration when the Magistrate ha~ already rec.orded
the dying declaration; and that the deceased in her first dying declaration
E did not accuse the appellant of having caused harassment or cruelty to her
and as such there is no justification for convicting the appellant under Section
498-A IPC. I
t
~llowing the appeal, the Court
F HELD: 1.1. In the first dying declaration there is no mention about the
appellant having treated the deceased with cruelty or of his having caused
harassment to the deceased. In fact, his name does not find place in the
relevant portion of the first dying declaration. The first dying declaration was
reco.rded by a Magistrate after taking all necessary precautions. The deceased
was in a position to make a statement which was certified by the treating
G physician who was also present when the statement was recorded. Only 5
minutes thereafter another statement was recorded by the Head Constable
and in .th~t dying declaration allegations have been made against the appellant
and facts stated relating to the immediate cause which led the deceased to ....-.,.
commit suicide attributable to the appellant, though there is a statement that
H her mother-in-law also used to harass her. [666-A-C]
.._. LELLA SRINIVASA RAO v. STATE OF ANDHRA PRADESH [SINGH. J.] 661
1.2. Father of the deceased including other witnesses did not support A
the prosecution case that the deceased was treated with cruelty. Father of the
deceased stated that misunderstandings arose between his daughter and her
husband on account of the fact that the children of the deceased sister of the
appellant were being brought up in the house of the appellant and the deceased
objected to the same. If this caused annoyance to the deceased, such conduct
cannot be equated with cruelty or harassment. There is no reason why on B
this aspect of the matter the father of the deceased should not speak the truth.
In any event, he and his family members were the only persons who could
have deposed about the treatment meted out to the deceased. All of them have
'"'-· denied the suggestion that the appellant or his mother-in-law treated the
deceased with cruelty. The fact that these witnesses have been declared hostile c
by the prosecution, does not result in the automatic rejection of their evidence.
Even the evidence of a hostile witness if it finds corroboration from the facts
of the case may be taken into account while judging the guilt of an accused.
In any event, if their evidence is kept out of consideration, there is no other
evidence to prove the allegation of cruelty and harassment meted out to the
deceased. Having regard to the evidence on record and inconsistency in the D
two dying declarations it is not safe to act solely on the aforesaid during
declarations to convict the appellant. Thus, the appellant is acquitted of the
charge under Section 498-A IPC. Further, since the case of the mother of the
appellant also stands on the same footing, an order of acquittal is passed in
her favour, even though her special leave petition was dismissed and she has
E
undergone the sentence imposed against her. (666-E-H; 667-A-C)
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
946 of 1997.
From the Judgment and Order dated 22.11.96 of the Andhra Pradesh
'"-'"' F
High Court in Crl. R.C. No. 195 of 1995.
Mrs. D. Bharathi Reddy for the Appellants.
Guntur Prabhakar for the Respondent.
The Judgment of the Court was delivered by G
B.P. SINGH, J. This appeal by special leave is directed against the
=-- judgment and order of the High court of Judicature at Andhra Pradesh at
Hyderabad dated November 26, 1996 in Criminal Revision Case No.195 of
1995 whereby the High Court while partly allowing the appeal and acquitting
H
662 SUPREME COURT REPORTS [2004] 2 S. C.R.
A the appellant of the charge under Section 306 l.P.C, confirmed his conviction
and sentence under Section 498-A I.P.C on which count the appellant has
been sentenced to undergo rigorous imprisonment for three years and to pay
a fine of Rs.I 000.
The appellant Lella Srinivas Rao an9 his mother Lella Gangamamba
B were tried by the Assistant Sessions Judge, Chirala charged of the offences
under Section.s 498-A .and 306 l.P.C. The case of the prosecution was that the
appellant herein was married to the deceased Bhavani about three years
before the date of occurrence which.took place on 15.8.1990. The c~se of the
prosecution was that the appellant as well as his mother (accused No.2)
C treated Bhavani (deceased) with such cruelty, and harassed her to such an
extent, that she was forced to commit suicide at about 12.45 p.m. on 15.8.1990.
She set fire to herself as well as her daughter who was about 1-1/2 years old
as a result of which both of them succumbed to their injuries later on the
sameday. The trial court found them guilty_ofthe offence under Section 306
LP.C. and s.entenced both the accused to undergo rigorous imprisonment for
D a period of seven years under Section, 306 I.P.C. and. three years rigorous
imprisonment under Section 498-A I.P.C. Both the accused preferreq Criminal
Appeal No. 1.69. of 1992 which came to be disposed of by the Court of
Session,.Prakasan.Division, Ongole who dismissed the appeal and upheld the
convictions and sentences. The accused thereafter challenged their convictions
E and sentencys before the High Court which set aside the i;:onviction under
Section 306 I.P.C. but upheld their conviction and sentence under Section
498-A I.P.C.
From the record it appears that both the accused preferred special leave
petitions before this Court. The special leave petition of accused No.2, Lella
F Gangammamba was dismissed by order dated 28.4.1997 and notice was issued
confined to the petition on behalf of the appellant herein, which was later
admitted for hearing.
As noticed earlier, the deceased was married to the appellant on 24th
January, 1988. It appears that some differences cropped up between them to
G which we shall refer later in this judgment. On the 15th August, 1990 the
deceased Bhavani set fire to herself and her 1-1 /2 years old daughter at about
12.45 p.m. She had closed the door of her room and .after pouring kerosene
oil on herself and her child .set herself ablaze. When she cried in pain her .-
. neighbours came to her rescue, got the door opened, and put off the fire. She
H was taken to the Government Hospital, Chirala along with child. Intimation
- LELLA SRINIVASA RAO v. STA TE OF ANDHRA PRADESH [SINGH, .I.] 663
was sent by the hospital authorities to.the Magistrate for recording the dying
declaration of the deceased. On such request PW-13 the II Additional Muns if
A
Magistrate, Chirala visited the hospital at 3.05 p.m. and recorded the dying
declaration ofBhavani which was exhibited at the trial as Ex.P-18. The dying
declaration was recorded by him between 3.30 p.m. and 3.40 p.m. The said
dying declaration is in question answer form and was recorded in the presence
of the treating physician who certified that Bhavani was conscious when the
B
dying declaration was recorded. The Munsif Magistrate read over the contents
to the deceased in the presence of the Doctor and on Bhavani admitting the
statement to be correct, she affixed her thumb impression on the dying
declaration.
In this dying declaration Bhavani (deceased) stated that due to unbearable
c
harassment caused by her mother-in-law she had poured kerosene oil on her
body and had set herself on fire at about 1.00 p.m. on that day. To a specific
question she replied saying that none-else had set her on fire. It also appears
that while recording the dying declaration the Magistrate had taken care to
remove all other persons from the room, except the doctor on duty. D
There is another dying declaration on record Ex.P-19 which was recorded
by Head Constable, Rasool Saheb, PW-15 only 5 minutes after the dying
declaration was recorded by the Munsif Magistrate. According to Head
Constable, Rasool Saheb, PW-15 he received intimation at about 3.00 p.m.
on the date of occurrence from the Government Hospital and he immediately E
went to the hospital and recorded the statement of the deceased. The second
dying declaration recorded by Head Constable, PW-15 is a detailed dying
declaration in which Bhavani (deceased) has stated that she was a house wife
married to the appellant three years ago and had a female child who was
about 18 months old on the date of occurrence. Her husband and mother-in- F
law used to harass her and did not want her to speak or behave amicably with
her relatives and used to beat her often. On 14.8.1990 her parents visited her
and thereafter went away. After they had left, and on coming to know this
fact, her husband harassed her. Due to the unbearable harassment meted out
to her she was disappointed with her life and she closed the doors of her
room in the absence of family members and after pouring kerosene oil on her G
body and on her child she set herself on fire which engulfed her and her child
and both were badly burnt. On account of severe burns suffered by her she
_..:;.... cried, hearing which her neighbours broke open the door and entered the
house and extinguished the flames. She and her child were taken to the
Government Hospital by them. H
664 SUPREME COURT REPORTS [2004] 2 S.C.R.
A It will thus be seen that whereas in the first dying declaration the
allegation made is only against the mother-in- law saying that she used to be
-
harassed by her, in the second dying declaration she has given details relating
to her parents visiting her on 14th August, 1990 and the harassment meted
out to her by the appellant herein after he came to know of the fact that her
parents had visited her. This was because her husband and mother-in-law did
B not want her to speak or behave amicably with her relatives. She was, therefore,
disappointed with life and chose to commit suicide. -
It is apparent that while in the first dying declaration there is only a
general allegation against the mother-in-law, accused No.2, in the second
C dying declaration the allegation of harassment is against the husband as well
as the mother-in-law and the immediate cause for the suicide was her being
harassed by her husband, the appellant herein,. after her parents had left. It
cannot be disputed that the two dying declarations are not consistent with
each other. The complicity of the appellant herein is disclosed only in the
second dying declaration.
D
However, the High Court has not accepted the case of the prosecution
so far as it relates to the offence under Section 306 I.P.C. and no appeal has
been preferred against the impugned judgment and order of the High Court
acquitting the accused of the charge under Section 306 I.P.C. The sole question,
therefore, which arises for consideration is whether there is evidence to support
E the charge under Section 498-A.
The prosecution at the trial examined some members of the family of
the deceased including her father, PW-I and her uncles PWs-2 and 3. PW-
4, Shyama Sundara Rao is a brother-in-law of PW-I, the father of the deceased.
F None of these witnesses have supported the case of the prosecution regarding
torture and harassment of the deceased by her husband or mother-in-law. No
doubt they have been declared hostile but their evidence does disclose the
reason for the misunderstanding between the appellant and the deceased.
PW- I, in his deposition stated that after her marriage with the appellant
G his daughter Bhavani resided with the appellant and the relationship between
them was cordial. His daughter, Bhavani (deceased) gave birth to a daughter
and when her daughter was about 5 months old she came to his house because
of some dispute with her husband, the appellant. According to PW-1, the
accused was the only son of his parents. His elder sister died on 15.5.1987 ....__
leaving behind three children all below the age of 14 years. The husband of
H his deceased sister re-married and set up his family, but his three children
LELLA SRINIVASA RAOv. STATE OF ANDHRA PRADESH [SINGH, J.] 665
from the first wife were left with the appellant and they used to reside in the A
same house where the appellant resided with his parents. This was objected
to by deceased Bhavani and she had stated that she would not live with the
appellant till he separated from his father and lived separately from them.
She did not like that the children of her deceased sister-in-law should be
brought up by the family members of her husband including her mother-in- B
--- law, accused No.2. According to the father of the deceased this was the
reason for misunderstanding between the deceased and the appellant. He
further stated that on 14th August, 1990 he had been informed by PW-4, that
there was some misunderstanding between the appellant and his daughter and
he had requested him to come and get the matter patched up. He had gone
to the house of his daughter on 14.8.1990 and patched up their differences. C
On the next day, he came to know that his daughter had set herself on fire
and that she had been admitted in a hospital. He denied having stated before
the police that the accused w~re responsible for the death of his daughter.
According to him the accused looked after the welfare of his daughter and
she delivered a daughter and lived in the house of the appellant till the child
was 5 months old. She had thereafter come to reside with him on account of D
some misunderstanding with her husband. The reason for the misunderstanding
was the objection of his daughter to the upbringing of deceased sister-in-
law' s children by her husband's family. No accusation has been made by the
father of the deceased to the effect that Bhavani was ever ill-treated or harassed
by either the appellant or his mother-in-law or any other member of the E
family. PW-2, a brother of PW-1 has also deposed on the same lines as PW-
1. In the deposition of PW-4 also there is no allegation that the deceased was
ill-treated by her husband or members of his family. In fact, the learned Trial
Judge noticed that except the two dying declarations, there was no other
evidence before the Court to prove that the deceased was treated with cruelty
and harassment which led her to commit suicide. However, the Trial Court F
.... ~ finding the two dying declarations to be consistent and supplemental to each
other relied upon them and recorded the conviction of the appellant as well
as his mother, accused No.2 under Sections 498-A and 306 l.P.C. Appellate
Court also upheld the judgment and order of the Trial Court. The High Court
in revision, however, came to the conclusion that though the facts of this case G
prove commission of offence under Section 498-A 1.P.C., the prosecution
had failed to prove its case under Section 306 l.P.C.
Having noticed the evidence on record and having noticed the
inconsistency between the two dying declarations, we do not find it safe to
base the conviction of the appellant on the basis of the second dying H
666 SUPREME COURT REPORTS [2004] 2 S.C.R. _,
A declaration. As noticed earlier, in the first dying declaration there is no mention
about the appellant having treated the deceased with cruelty or of his having
caused harassment to the deceased. In fact, his name does not find place in
the relevant portion of the first dying declaration. The first dying declaration
was recorded by a Magistrate after taking all necessary precautions. The
deceased was in a position to make a statement which was certified by the
B treating physician who was also present when the statement was recorded.
Only 5 minutes thereafter another statement was recorded by the Head
Constable and in that dying declaration allegations have been made against
the appellant and fact stated relating to the immediate cause which led the
deceased to commit suicide which are attributable to the appellant, though
C there is a statement that her mother-in-law also used to harass her.
Learned counsel for the appellant submitted that there was no necessity
for the Head Constable to record another dying declaration when the Munsif
Magistrate had already recorded the dying declaration. In any event, the
deceased did not in her first dying declaration accuse the appellant of having
D caused harassment to her, or having ill-treated her, and therefore there is no
justification for convicting the appellant even for the offence under Section
498-A I.P.C.
We have earlier noticed the evidence examined by the prosecution in
support of its case that the deceased was treated with cruelty by both the
E accused. However, the witnesses including the father of the deceased have
not supported this case. In fact, the father of the deceased namely, PW-1, in
his deposition stated that misunderstandings arose between his daughter and
her husband on account of the fact that the three children of the deceased
sister of the appellant were being brought up in the house of the appellant
p which was objected to by the deceased. If in those unfortunate circumstances
the three children of the deceased sister of the appellant were being brought
up in his family, one cannot blame the appellant or his parents for having
shown compassion towards the children of his deceased sister. If that is what
-
caused annoyance to the deceased, one cannot equate such conduct with
cruelty or harassment. We also find no reason why on this aspect of the
G matter the father of the deceased should not speak the truth. In any event, he
and his family members were the only persons who could have deposed
about the treatment meted out to the .deceased. All of them have denied the
suggestion that the appellant or his mother-in-law treated the deceased with
cruelty. The· fact that these witnesses have been declared hostile by the
H prosecution, does not result in the automatic rejection of their evidence. Even
-
LELLA SRINIVASA RAO v. STATE OF ANDHRA PRADESH [SINGH, J.] 667
the evidence of a hostile witness if it finds corroboration from the facts of the A
case may be taken into account while judging the guilt of an accused. In any
event, iftheir evidence is kept out of consideration, there is no other evidence
to prove the prosecution allegation of cruelty and harassment meted out to
the deceased. Having regard to the inconsistency in the two dying declarations
we do not find it safe to act solely on them to convict the appellant, and for B
that reason even accused No.2, the mother of the appellant who has since
served out her sentence.
In the facts of this case we find that the prosecution has failed to prove
the commission of the offence under Section 498-A l.P.C. Accordingly, we
allow this appeal and acquit the appellant of the charge under Section 498- C
A l.P.C. Since the case of accused No.2 Smt. Gangamamba, mother of the
appellant herein also stands of the same footing, we also record an order of
acquittal in her favour, even though her special leave petition was dismissed
and she has undergone the sentence imposed against her. This appeal is
accordingly allowed. The bail bonds furnished by the appellant are discharged.
D
NJ. Appeal allowed.
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