Improved allegations in Dying declaration, Acquitted in 498A and 304B

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 6TH DAY OF AUGUST 2014

:PRESENT: THE HON’BLE MR.JUSTICE MOHAN M SHANTANAGOUDAR AND THE HON’BLE MR.JUSTICE K.N.PHANEENDRA

CRIMINAL APPEAL NO.446 OF 2010

BETWEEN:

THE STATE OF KARNATAKA
BY KUMARASWAMY POLICE STATION BANGALORE CITY….APPELLANT
(BY SRI.B.LVISHWANARAIAH, HCGP)

AND:

1. VENKATESH
S/O KRISHNAPPA
AGED ABOUT 36 YEARS

2. SMT.LAKAMMA
W/O KRISHNAPPA
AGED ABOUT 54 YEARS

BOTH ARE REIDING AT
NO.3320, 44TH CROSS
CHANDRANAGAR KUMARASWAMY LAYOUT BANGALORE….RESPONDENTS
(BY SRI.NAGARAJ DAMODAR ADV.)

THIS CRIMINAL APPEAL IS FILED UNDER U/S.378
(1) (3) CR.P.C WITH A PRAYER TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGEMNT OF ACQUITTAL
DATED 30.11.2009 PASSED BY THE P.O. FTC-VIII,
BANGALORE IN S.C.NO.282/06-ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE
PUNISAHBLE UNDER SECTIONS 498(A), 304(B), 302 OF IPC
R/W SECTIONS 3 4 OF D.P.ACT.

THIS CRL.A COMING ON FOR HEARING THIS DAY MOHAN M SHANTANAGOUDAR J., DELIVERED THE FOLLOWING:-

JUDGMENT

The judgment and order of acquittal passed by the FTC-VIIII, Bangalore City dated 30.11.2009 in S.C.No.282/2006 is appealed by the State.

The respondents/accused Nos.1 and 2 were charge sheeted and tried for the offences punishable under Sections 498(A), 304(B)  302 of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. By the impugned judgment, both the accused are acquitted.

During the pendency of this appeal, accused No.1 has expired. The death certificate issued by Bangalore Mahanagara Palike on 15.01.2013 produced along with a memo by the Advocate for respondents 1and 2 reveals that accused No.1-Venkatesh expired on 10.04.2013 at Gayathri Hospital, Bangalore. His death is registered in the office of Bangalore Mahanagara Palike on 23.04.2012. Thus, the appeal abates as against accused No.1. This appeal is heard only against accused No.2, who is the mother of accused No.1.

2. In order to prove its case, the prosecution in all examined 24 witnesses and got marked 23 exhibits and 2 Material Objects. On behalf of the defence, 4 exhibits were got marked.

3. The case of the prosecution in brief is that deceased Bhairavi is the wife of accused No.1; their marriage was performed on 16.05.2004; accused No.2 is the mother of accused No.1; prior to the marriage of the deceased with accused No.1, the accused allegedly demanded dowry in the form of cash as well as in the form of gold ornaments. The parents of the deceased satisfied the demand of the accused. After the marriage, accused started torturing the victim by pressurizing her to bring additional amount of dowry as well as a site from her parents; since, such demand was not met by the parents of the deceased, the accused set her ablaze after pouring kerosene at about 8.00 p.m. on 20.12.2005 in the matrimonial house of accused No.1 and deceased; immediately thereafter, the victim was admitted to Victoria Hospital for treatment; ultimately, the victim succumbed to injuries at 9.35 a.m. on 23.12.2005.

Immediately after admission of the victim to the hospital, the authorities of the hospital intimated the police and consequently the Assistant Sub-Inspector of Police of Kumarswamy Police Station (PW4) came to the hospital and recorded the statement of the victim as per Ex.P6 at 1.15 a.m. intervening between 20/21.12.2005; Ex.P6 was recorded in the presence of the Doctor-PW3; since, nothing incriminating was found against the accused in the statement-Ex.P6, the Assistant Sub- Inspector of Police did not register the crime, but registered C.Misc No.593/2005 at about 2.10 a.m. on 21.12.2005. Subsequently, at about 11.15 a.m. on the very day i.e., on 21.12.2005, a noting is found in the case sheet of the hospital-Ex.P4 to the effect that the victim was fit, oriented and is able to make statement; it is noted by the Doctor about one more statement made by the victim at that particular time to the effect that she being intolerant of the harassment meted against her by the accused, she poured kerosene and set herself ablaze. Thereafter, once again at 2.30 p.m., a memo was sent by the police to the Taluka Executive Magistrate for recording the Dying Declaration. Accordingly, at 2.30 p.m., the Taluka Executive Magistrate (PW7) went to the hospital and recorded the dying declaration-Ex.P2 from 2.30 p.m. to 3.00 p.m. on 21.12.2005 in the presence of the Doctor-PW22. In the said statement, the victim has stated that she being frustrated because of the ill-treatment meted against her by the accused, she decided to commit suicide; she herself brought kerosene in a can and handed over to accused No.1; accused No.1 did not pour kerosene on her nor did he set her ablaze; he poured certain extent of kerosene on the floor and went out from the house; thereafter, accused No.2 took the kerosene can and poured kerosene on the body of the victim and set her ablaze, consequent upon which, she sustained injuries. Based on Ex.P2, Crime No.371/2005 came to be registered against both the accused for the aforementioned offences and investigation was commenced. Ultimately, the charge sheet came to be filed by the Assistant Commissioner of Police (PW18) after completion of the investigation.

4. Mr.B.Vishweshwaraiah, learned Government Advocate taking us through the material on record rendered by the Court below submits that the material found in Ex.P2 coupled with the evidence of Taluka Executive Magistrate (PW7) and the Doctor-PW22 is sufficient to bring home the guilt against the accused No.2. Since, major offences are found against accused No.2 and as reliable material is found against her, the trial Court is not justified in acquitting accused No.2. He further submitted that the evidence of the parents of the deceased and the mediators who participated in marriage talks could clearly reveal that the accused demanded dowry prior to the marriage and such demand was satisfied by the accused; their evidence also reveals about the harassment meted against the deceased by the accused. Thus, according to him, the judgment of the trial Court needs to be reversed.

READ  RTI - Chandigarh Police Circular - Prosecute u/s 182 for false complaints

Mr.Nagaraj Damodar, learned counsel appearing on behalf of the respondents, per contra, argued in support of the judgment of the Court below by contending that the versions found in Exs.P6, P2 P4 are mutually destructive. There is nothing on record to disbelieve the version of PWs 3 and 4 who recorded Ex.P6-the first dying declaration. Even at the time of recording Ex.P6, the victim was fit to make statement. The Doctor-PW22 was not at all present at the time of recording Ex.P2; the so-called signatures of the Doctor found in Ex.P2 do not tally with each other. The Doctor himself has stated that he was not present at the time of recording Ex.P2 and he was not the duty Doctor. The evidence of PWs 6 8- the parents of the deceased, supported the case of the defence inasmuch as they admit that the amount paid by the accused was for marriage expenses. On these among other grounds, he prays for dismissal of the appeal.

5. PW1 is the police constable. He took the First Information Report-Ex.P1 to the learned JMFC after registering the crime. The first information is at Ex.P2. PW2 is the Doctor, he issued death memo as per Ex.P3. PW3 is another Doctor he has certified that the victim was in a fit condition to make statement at 0.15 hours intervening between 20/21.12.2005 in Ex.P6. PW4 is the Assistant Sub-Inspector of Police. He recorded Ex.P6 in the presence of the Doctor-PW3, based on which, C.Misc.No.593/2005 was registered by him. PW5 is the Police Constable, he scribed Ex.P2. PW7 recorded the dying declaration in the presence of the Doctor-PW22. PW6 is the father of the deceased. PW8 is the mother of the deceased. Both of them have deposed about the demand of dowry by the accused and payment of dowry by them. They have also deposed about subsequent harassment also. PW7 is the Taluka Executive Magistrate. He recorded the dying declaration-Ex.P2. PWs 9, 11, 12, 17 and 24 participated in the marriage talks of accused No.1 with the deceased. Out of them, PW9 has turned hostile completely. PW11 has partly turned hostile. These witnesses have deposed about the demand of dowry by the accused at the time of marriage and payment of dowry by the parents of the deceased. PW10 is the witness for inquest panchanama-Ex.P13; he is the friend of PW6-the father of the deceased. PW13 is the brother-in-law of PW6. PW14 is another brother- in-law of PW6; he is a Police Constable by profession. He is also a witness to the inquest panchanama-Ex.P13. PWs 13 and 14 have deposed about the demand and payment of dowry as also the harassment by the accused. PW15 is the neighbour of the matrimonial house of the deceased, he has turned hostile. PW16 is the Doctor who conducted the post mortem examination. The post mortem report is at Ex.P9. The Doctor has deposed that the victim had sustained 72% to 75% of burns. PW18 is the Assistant Commissioner of Police; he completed the investigation and laid the charge sheet. PW19 is the Inspector who registered the case in Crime No.371/2005 based on Ex.P2. He handed over the investigation to PW18. PW20 is one more neighbor, he has also turned hostile. PW21 is the Assistant Sub-Inspector of Police, he apprehended accused No.1 on 22.05.2005. PW22 is the Doctor who certified that the victim was in a fit condition to make statement in Ex.P2, the dying declaration. PW23 is the Police Constable; he has carried the first information to Court after crime is registered for the offence punishable under Section 302 of Indian Penal Code.

6. The case of the prosecution mainly centers round the evidence of PWs 6 8, apart from three dying declarations-Exs.P6, P2 and P4 and the evidence of the Doctors who were present at the time of recording the dying declaration as well as the persons who recorded the dying declarations.

7. PWs6 and 8 though have deposed in the examination-in-chief in detail about the demand of dowry and payment of dowry and subsequent harassment, in the cross-examination, both of them have admitted that whatever amount they have paid to the accused was only towards marriage expenses. The gold ornaments were customary in nature. In view of these admissions of PWs 6 and 8, the trial Court justified in holding against the prosecution relating to the case of demand of dowry and payment of dowry as well as harassment in respect of demand of dowry. Since, there is a clear admission by PWs 6 and 8 that the amounts were paid by them for the marriage expenses of the deceased with accused No.1, it can be safely said that there was neither demand of dowry nor payment of dowry.

8. Coming to the major offence relating to the death of the deceased, the evidence of the two doctors PWs 3 and 22 who were stated to be present at the time of recording Exs.P6 P2, are very much relevant. So also, the evidence of Assistant Sub-Inspector of Police (PW4) who recorded Ex.P6 and the evidence of Taluka Executive Magistrate (PW7) who recorded Ex.P2 are relevant.

READ  Bhagwan Dutt Vs Kamla Devi - Wife Income

9. Ex.P6 is the first dying declaration; the same was recorded at 1.15 a.m. on 21.12.2005 i.e., one hour subsequent to mid night intervening between 20/21.12.2005. The incident has taken place at about 8.00 p.m. on 20.12.2005. The victim was admitted to hospital at 10.10 p.m. Thus, it is clear that after admission of the victim and after completion of all the formalities, the statement of the victim was recorded immediately thereafter. Ex.P6 discloses that accused No.2-the mother-in-law of the deceased was not residing with accused No.1 and deceased. It is specifically averred in Ex.P6 that the mother-in-law as well as father-in-law of the deceased were residing in a different house; whereas only accused No.1 and deceased along with the child resided in a separate house. It is also specifically stated in Ex.P6 that at about 8.00 p.m. on 20.12.2005, when she wanted to cook with the help of a kerosene stove, the stove was burst due to over pumping, consequent upon which, the victim caught fire. Immediately thereafter, the fire was extinguished by accused No.1 by pouring water on her and she was lifted and taken out of the house by accused No.1; thereafter, the victim was taken to Victoria Hospital by accused No.1 in an auto rickshaw.

10. Ex.P4 is the case sheet entered by the hospital authorities. The same also discloses that the victim was admitted to hospital with the history of burns due to stove burst. At 10.30 p.m. on 20.12.2005 i.e., immediately after the admission of the patient, it is noted by the Doctor that the patient was conscious, alert and physically and mentally fit to give statement and that the patient has given information. At the time of admission itself, the victim has stated that while cooking, the stove was burst around about 7.30 p.m. at Kumaraswamy Layout, which has led to burn injuries and that she was brought to the hospital by her husband. Her left toe impression was taken on the statement-Ex.P4 and thereafter, Ex.P6 came to be recorded by the Assistant Sub-Inspector of Police (PW4) in the presence of PW3 at about 1.15 a.m. From the aforementioned facts, it is amply clear that immediately after the incident, the victim herself has given the history as the incident of stove burst and at that point of time, she was conscious, alert and physically and mentally fit to give statement. Even at the time of givingthe statement at Ex.P6 at about 1.50 a.m. on 21.12.2005, she was conscious and fit to give statement as is clear from the endorsement of the Doctor.

The version found in Ex.P6 is supported by the evidence of PWs4 and 3. The Doctor-PW3 has deposed that he was present at the time of admission of the victim; when he examined the victim, she had sustained about 61% burns. Immediately thereafter, he sent message to police out post situated at Victoria Hospital. The police came to the hospital at 00.15 hours on 21.12.2005; the police asked the Doctor to find out as to whether the victim was in a fit condition to make the statement or not. Since, the Doctor-PW3, on examination, opined that the victim was in a fit condition to make statement; the statement was recorded as per Ex.P6 by the Assistant Sub-Inspector of Police.

11. Hence, it is amply clear that PW3-the Doctor has certified that the victim was in a fit condition to make statement at about 1.15 a.m. as per Ex.P6.

PW4-the Assistant Sub-Inspector has recorded Ex.P6 in the presence of PW3. He also deposed that on getting information from Victoria Hospital, he went to the hospital immediately and on verifying from the Doctor as to whether the victim was in a fit condition to make statement, he recorded the statement and took the certificate of the Doctor to that effect. He has also deposed that the victim was in a fit condition to make statement. He has further deposed that since, the victim had not stated about the complicity of any person, C.Misc.No.593/2005 was registered.

12. Be that as it may, the fact remains that at the time of giving the first dying declaration-Ex.P6, the victim was alert, conscious and was fit to make statement and she has consistently and consciously made the statement as per Ex.P6.

13. Another noting is found in Ex.P4-the case sheet maintained by the hospital at about 11.15 a.m. on 21.12.2005. There is nothing on record to show as to who made the said note. The said note as recorded at 11.15 a.m. in Ex.P4, discloses that the victim poured kerosene on herself and set herself ablaze, since, she could not tolerate the harassment meted by her by the accused. Even at that point of time also she was stated to be fit to make statement. But there is nothing on record to show as to who made such note and what made the victim to make such a statement and before whom. PW22-the doctor who was a duty Doctor in the hospital also did not know as to who made such a note and that he has not made such a note as found in Ex.P4 at 11.15 a.m. Thus, the second dying declaration-Ex.P4 made at 10.15 a.m., is inconsistent with Ex.P6, which was first in point of time.

14. It is curious to note that the third dying declaration- Ex.P2 is still more inconsistent with the first other two dying declarations. The same is recorded at 2.30 p.m. to 3.00 p.m. on 21.12.2005 by PW7-Taluka Executive Magistrate. According to the prosecution, the Doctor PW22 was present at the time of recording Ex.P2.

READ  When court can take notice of subsequent events?

It is interesting to note that the Assistant Sub- Inspector of Police though has deposed that he was also present at the time of recording Ex.P2, his presence is not spoken to by the Taluka Executive Magistrate-PW7 or by the Doctor-PW22. The Taluka Executive Magistrate who recorded Ex.P2 has deposed that he dictated the dying declaration as stated by the victim to the Police Constable, Buckle No.8986. Thereafter, such statement was sent to the Assistant Sub-Inspector for further action. In Ex.P2, it is stated that both the accused used to torture the victim by demanding dowry etc; since, the victim could not tolerate the ill-treatment meted against her by the accused, she decided to commit suicide and therefore, she brought a kerosene can and handed over the same to the accused No.1. Accused No.1 did not pour kerosene on her nor did he set her ablaze. However, accused No.2 poured kerosene on the victim and set her ablaze. The version as found in Ex.P2 is totally contradictory to Ex.P6 and the second note found in Ex.P4. It is the case of the prosecution that Ex.P2 is recorded in presence of PW22, the Doctor; the said Doctor-PW22 has deposed that Ex.P2 was not recorded in his presence. He has admitted that he was not present at the time of recording Ex.P2. He has also deposed that he has not made any endorsement nor has signed Ex.P2 immediately after recording Ex.P2. In this context, we have carefully perused the original Ex.P2. It is mentioned that the patient Bhairavi-I.P.No.802116 is conscious, alert, oriented and physically and mentally fit for statement. It is no doubt true that on the top of Ex.P2, it is stated that the victim was conscious, alert, oriented and physically and mentally fit for giving statement and it is signed by Dr.M.G.Sadashivappa. But in his evidence he himself admits that he was not present at the time of recording Ex.P2. The case sheet maintained by the Victoria Hospital specifies that at about 11.30 a.m. on 21.12.2001, the Doctor has made a note that the death is imminent and therefore, the police was requested to arrange for dying declaration and thereafter, the dying declaration-Ex.P2 was recorded at 2.30 p.m. If the death was imminent at 11.15 a.m., it is but natural that the victim might not be in a position to give the statement. PW22 also admits in his cross-examination that from 11.15 a.m. to 2.30 p.m. the health condition of the victim was deteriorating.

15. From the aforementioned facts and  circumstances, it is clear that the case of the prosecution is being improved from time to time. It seems the prosecution started improving its case after PW14-the brother-in-law of PW6 (father of the deceased) who is the Police Constable took active interest in the matter. As aforementioned, immediately after the admission of the patient at 10.30 p.m. on 20.12.2005, the victim herself has given history that she suffered burn injuries because of stove burst. At that point of time, she was alert, oriented and fit to make statement. Even at 1.15 a.m., while recording Ex.P6 the victim was fit to make statement and she was alert and conscious. She has made specific statement that she suffered burn injuries because of the stove burst and at that point of time the Doctor-PW3 was also present. He has also certified that the victim was in a fit condition to make statement. Subsequently, the improvements are made by the prosecution from time to time in the form of Ex.P2 and the noting found at 11.15 a.m. on 21.12.2005 at Ex.P4. These improvements are conspicuously after the arrival of other relatives of the deceased.

16. In view of the inconsistent stand taken by the prosecution, appears to be improvement from time to time. In our considered opinion, the trial Court is justified in believing the first version of the victim as found in Ex.P6 as well as the history given by the victim at the time of admission. We also do not find any ground to disregard the matter found in Ex.P6 as well as the history given by the victim at the time of admission. Since, the victim was not tutored at the time of recording Ex.P6 or at the time of giving the history during her admission to the hospital, such statement of the victim will have to be accepted. On the other hand, Ex.P2 has come into picture only after the arrival of the relatives of the deceased. PWs 6, 8 and 11 have admitted that they were present at the time of recording Ex.P2-the dying declaration, in which the victim implicates the accused for the first time. Hence, it can be safely said that Ex.P2 is the outcome of tutoring and the same was after thought.

17. Looking to the totality of the facts and circumstances, in our considered opinion, the trial Court has taken correct view while coming to the conclusion. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. Hence, no interference is called for at the hands of this Court. Appeal fails and the same is hereby dismissed.

SD/-

JUDGE SD/-

Leave a Comment

Your email address will not be published. Required fields are marked *