IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL APPEAL No. 795/2016 (C) C/W CRIMINAL APPEAL No. 796/2016 (C) IN CRIMINAL APPEAL No. 795/2016 BETWEEN MOHAMMED NASIRUDDIN S/O MOHAMMED ZIYAUDDIN AGED ABOUT 28 YEARS R/AT NO.1589, I STAGE I CROSS, RAJIV NAGAR MYSURU-570 019 (NOW IN JUDICIAL CUSTODY CENTRRAL PRISON, MYSORE) ... APPELLANT (BY SRI. HASHMATH PASHA, SR. COUNSEL FOR M/S HASHMATH PASHA & ASSOCIATES) IN CRIMINAL APPEAL No. 796/2016 BETWEEN 1. REFATHVUNNISSA W/O MUDASIR AGED ABOUT 35 YEARS HOUSE NO.224, ABDUL REHAMAN ROAD KEB COLONY, UDAYAGIRI MYSURU-570 019 2. FARAKUNDA KHANUM W/O MOHAMMED ZIYAVUDDIN AGED ABOUT 55 YEARS HOUSE NO.200, 11TH CROSS KEB COLONY, UDAYAGIRI MYSORE-570 019 3. MUDASIR @ SHEER S/O M. ANWARJI AGED ABOUT 28 YEARS HOUSE NO.224 ABDUL REHAMAN ROAD KEB COLONY, UDAYAGIRI MYSURU-570 019 ... APPELLANTS (BY SRI. HASHMATH PASHA, SR. COUNSEL FOR M/S HASHMATH PASHA & ASSOCIATES) AND STATE OF KARNATAKA BY UDAYAGIRI POLICE STATION MYSURU-570 019 (REP. BY LEARNED STATE PUBLIC PROSECUTOR) HIGH COURT OF KARNATAKA BENGALURU – 560 001 ... RESPONDENT (COMMON IN BOTH APPEALS) (BY SRI.VIJAYAKUMAR MAJAGE, ADDL. SPP) THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.04.2016 AND SENTENCE DATED 07.04.2016 PASSED BY THE IV ADDL. S.J., MYSURU IN S.C.NO.126/2011 – CONVICTING THE APPELLANTS/ACCUSED NOS.1 TO 4 FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) READ WITH 34 AND 302 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT Criminal Appeal No.795/2016 is preferred by Accused No.1 and Criminal Appeal No.796/2016 is preferred by Accused Nos. 2 to 4 challenging the impugned judgment of conviction dated 06.04.2016 and order of sentence dated 07.04.2016 passed by the IV Additional Sessions Judge, Mysuru, in SC No.126/2011.
2. The learned Sessions Judge after trial of the accused persons 1 to 4, has arrived at a conclusion that the prosecution has proved the case beyond all reasonable doubt for the offences punishable under Sections 498-A and 302 of IPC and sentenced Accused Nos. 1 to 4 for the offence punishable under section 498-A read with Section 34 of IPC to undergo imprisonment for two years and to pay fine of Rs.10,000/- with default sentence. However, Accused No.1 was separately sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.2,00,000/- with default sentence to undergo imprisonment for two years for the offence punishable under section 302 of IPC.
3. The brief factual matrix that emanate from the records are that, a lady by name Amrin Banu, the daughter of PW.2-Aslam Ali Khan and PW.3-Balkis Banu, was given in marriage to Accused No.1 and the marriage took place on 29.06.2008 according to the Muslim customs. After the marriage, the said Amrin Banu had been to the marital home and started her marriage obligations with Accused No.1 and his family members. It is alleged that, after some time, they got a child and the accused have started ill-treating and harassing her physically and mentally in demand of further dowry etc. It is the further allegation of the prosecution that, accused and deceased have been separated for some time due to some matrimonial differences between themselves. In this context, the wife filed a petition for maintenance and also a complaint against the husband and his family members alleging offence under Section 498-A of IPC. Subsequently, it appears a compromise took place between the parties and in spite of pendency of the cases before the Court, there was re-union of husband and wife and she started living with her husband. It is the further case of the prosecution that, even after re-union, the accused persons have continued their ill-treatment and harassment in demand of dowry etc. In this background, it is alleged that, on the date of the incident ie., on 14.11.2010, the accused had been to a marriage party and in spite of request by the deceased, he did not take her with him. After the lunch in marriage function, the accused came back to the house with empty hands. The wife in fact has asked him to bring some food to her. In that context, a quarrel took place between the husband and the wife and in a spur of moment, it is alleged that the accused poured kerosene on her and lit fire. Thereafter, the accused himself tried to extinguish the fire and with the help of neighbours, he shifted the deceased to the hospital for treatment. On the next day of the incident i.e., 15.11.2010, PW.8-Geethakrishna, the Executive Magistrate, with the help of the doctor, recorded the statement of the deceased and later that statement was treated as dying declaration and on the basis of which, the respondent-Police have registered a case in Crime No.220/2010 (Ex.P7) for the offences punishable under Sections 498-A, 307, 114 r/w. Section 34 of IPC. After thorough investigation, the Police found that Accused No.1 and his family members are responsible for the death of the deceased as they were ill-treated and harassed the deceased and the police laid the charge sheet against the accused for the offences punishable under Sections 498-A and 302 of IPC.
4. The accused were arrested in connection with the said case. However, Accused Nos. 2 to 4 were released on bail and through out, they were on bail. Accused No.1, initially was in custody for a period of two years and thereafter, he was also released on bail and subsequently, after the impugned judgment rendered by the trial Court, he was taken to custody and since then, he has been in judicial custody.
5. The trial Court after securing the presence of the accused persons, has proceeded to frame charges against them for the aforesaid offences. The prosecution in fact, has examined as many as 25 witnesses as PWS.1 to 25 and got marked Exs. P1 to P29. During the course of cross-examination of the witnesses, Exs.D1 to D11 were marked and the material objects were got marked as MOs. 1 to 6.
6. After appreciating the oral and documentary evidence on record, the trial Court accepting the version of the prosecution, held that the prosecution has proved the case beyond reasonable doubt for the above alleged offences and accordingly, sentenced the accused as noted supra.
7. Sri. Hashmath Pasha, the learned senior counsel for the appellants/accused has taken us thorough the evidence of the prosecution witnesses and also the documentary evidence in detail. He has submitted before the Court that, there are two versions available in the prosecution case itself. At the initial stages, the documents which were marked before the Court disclose that, the incident appears to have happened due to self- immolation by the deceased herself or she sustained burn injuries due to accidental fire in the house of the accused persons and it appears that, on the next day of the incident, the Police visited the hospital and recorded the statement of the victim and the said statement was later termed as dying declaration. Therefore, the earliest version which was given by the deceased herself has not been controverted by the prosecution witnesses or the Investigating Officer during the course of the evidence before the Court. He would further submit that, it went unexplained by them as to why such documents surfaced at the earliest point of time. He also further submitted that, the relevant doctors who have recorded the status of the injured and the statement of the injured as per Exs.D1 and D10 were not collected or produced before the Court by the Investigating Agency in order to bring out the real facts before the Court. Therefore, the learned counsel submitted that, when two views are available on the basis of the same materials produced before the Court, the view which is favourable to the accused ought to have been preferred by the Court. Therefore, the trial Court has seriously erred in convicting the accused for the aforesaid offences.
8. Per contra, Sri. Vijayakumar Majage, the learned Additional SPP, has submitted before the Court that, the dying declaration, which is marked at Ex.P7, is recorded by a Public Servant in the presence of a Doctor and what has been stated by the injured has been promptly recorded by the Executive Magistrate in presence of the Doctor. Therefore, there is no reason to disbelieve such statement, which is recorded while the executive magistrate was discharging his duties as a public servant. It is also stated that the dying declaration is also fully supported by the evidence of the Doctor as well as the Executive Magistrate and it is also fully corroborated by the evidence of father and mother of the deceased. Though some of the witnesses, who are neighbourers of the accused have not supported the case of the prosecution, nevertheless, the evidence of the kith and kin of the deceased coupled with the other evidence cannot be easily brushed aside. Therefore, overall looking to the gamut of the case, there is no reason for this Court to interfere with the judgment of conviction and order of sentence passed by the trial Court. Hence, he pleaded for dismissal of the appeals.
9. Before adverting to the material evidence on record, we feel it just and necessary to have birds eye view on the evidence of the prosecution witnesses.
10. Before adverting to the evidence, we found that there is no dispute by the accused with regard to the death of the deceased caused due to the injuries suffered by her and there is also no dispute by the accused persons that, the incident had occurred in the house of the accused. It is the defence of the accused that, virtually on the basis of the documents Exs.D1, D10 and Ex.P26, on that particular day, the deceased herself poured kerosene on her body for the reasons best known to her or while she was transferring kerosene from one bottle to another, the kerosene spilled over on the clothes of the deceased and there was an accidental fire and the accused, in fact, after noticing the incident, he tried to extinguish the fire and tried to save the life of the deceased. Immediately, he has also shifted the deceased to the hospital and he was there through out with the deceased till he was arrested by the Police. All these factual aspects are admitted during the course of the evidence by the accused persons. It is also not disputed by the prosecution, as could be seen from the suggestion made to some of the witnesses by the learned Public Prosecutor. In this background, now let us consider the evidence of the prosecution witnesses in brief that;
10.1 PW.1 Aslam Ali Khan is the father of the deceased. He deposed about the marriage of the accused and the deceased, ill-treatment and harassment by the accused. He also spoke with regard to the oral dying declaration given by the deceased against accused No.1 in the hospital and the death of the deceased on 19.11.2010. A lengthy evidence of this witness is available and a marathon cross-examination is also being adverted to on this witness.
10.2 PW.2-Vanitha is the neighbour of accused No.1 and the deceased. In fact, according to the prosecution, she had been to the house of the accused immediately after the incident and she also went to the hospital and saw the deceased and shifted the deceased to Gopala Gowda hospital at the first instance and then to K.R. hospital. But, so far as the material evidence is concerned, she turned hostile and not made any allegations against the accused persons.
10.3 PW.3-Balkis Banu is the mother of the deceased, who also reiterated almost like the evidence of PW.1.
10.4 PW.4-Syed Abdul Malik is the neighbour of PW.1. He was examined to depose about the ill-treatment and the harassment meted out by the accused persons on the deceased, but he has also not supported the case of the prosecution.
10.5 PW.5-Mubarak Ahmed Khan, another neighbour, who also followed PW.4 and turned hostile to the prosecution.
10.6 PW.6-Sardar Ahmed states that he knows PW.1 and he held panchayat and advised accused No.1 and the deceased to reside together separately from others and he learnt about the death of the deceased sustaining injury. He went to the hospital and saw the injured.
10.7 PW.7-Asif Ali Khan was also examined to depose with regard to the panchayat with reference to difference between the accused and the deceased and he also gave the opinion that the accused and the deceased should live separately apart from the parents of the deceased and the accused.
10.8 PW.8-Geetha Krishna is the Additional Taluka Magistrate, who has recorded the dying declaration as per Ex.P7 on 15.11.2010 and also conducted the inquest proceedings as per Ex.P3.
10.9 PW.9-Shanthamma is another neighbour, who also turned hostile and not supported the case of the prosecution. On the other hand, when she went to see the injured, she saw the injured covered with a blanket by the accused and she also taken the injured to the hospital and she spoke about the death of the deceased.
10.10 PW.10-Mehaboob Unnisa is another neighbour of PW.1. In fact, she deposed before the Court that, with regard to the marriage of accused No.1 and the deceased and she made certain allegation against accused No.1 that, he used to come to the house and make galata near the house of PW.1 with reference to the differences between himself and the deceased. She also deposed that, the deceased was informing about the harassment by the accused meted out on her.
10.11 PW.11-Mohammed Yusuf, a pancha to spot mahazar Ex.P1 under which MOs.1 to 4 were seized by the Police, but he has not supported the case of the prosecution.
10.12 PW.l2-S.K.Mehboob is the witness to panchanama-Ex.P2 under which MOs.5 and 6, which are the clothes of the deceased produced by PW.1, were seized by the Police. The evidence of this witness is of no much significance because there is no denial so far as this aspect is concerned, virtually the witnesses have been very casually cross-examined by the learned counsel for the accused.
10.13 PW.13-Muneera Jaan again another neighbour of PW.1 and she has also deposed with regard to the differences between the accused and the deceased and cruelty, harassment meted out by accused on the deceased.
10.14 PW.14-Prakash is a panch witness to Ex.P2.
There is no need to further discuss about his evidence.
10.15 PW.15-Dr. N. Ravi conducted the post- mortem examination on the dead body of the deceased and gave the opinion that the deceased died due to septicemia as a result of burn injuries as per Ex.P10, the post-mortem report.
10.16 PW.16-Ayub Khan is a panch witness to inquest mahazar-Ex.P3. There is no dispute with regard to the cause of death of the deceased, due to burn injuries. His evidence also becomes insignificant.
10.17 PW.17 P. Mallesh, Scientific Officer, who received six sealed articles on 21.12.2010 and conducted the test and submitted the presence of kerosene in article Nos.1, 5 and 6 and stated that there were no residues of kerosene in article Nos.2, 3 and 4. The evidence of this witness also, in our opinion, not so significant because there is no dispute by the accused persons with regard to the death of the deceased due to burn injuries, particularly, according to them, the deceased poured kerosene on herself or it was an accidental fire incident.
10.18 PW.18- Raghu is a person, who carried the F.I.R. Ex.P13 to the jurisdictional Magistrate and he is a formal witness.
10.19 PW.19-Chandru, Photographer, who has taken the photographs as per Exs.P14 to 17 on 15.11.2010 pertaining to the deceased at the place of incident.
10.20 PW.20-Purushottama is the Police Constable, who apprehended accused No.1 on 16.11.2010 and produced him before the Sub-Inspector of Police as per Ex.P22- Report. This fact is also not much disputed.
10.21 PW.21-Hussain Ahmed owner of the building, where the incident occurred. In fact, the accused has not denied the fact that he was residing with the deceased in the said house at the time of the incident. On the other hand, it is the case of the accused that, in the said house, the deceased herself poured kerosene on her body or due to accidental fire, the incident happened. There is no denial with regard to the incident that happened in the said house.
10.22 PW.22-T. Puttannaiah is the Police Sub- Inspector of Udayagiri Police Station. He has deposed that on the basis of Ex.P7-statement given by the deceased, he registered a case in Crime No.220 of 2010 and dispatched the F.I.R.-Ex.P13 to the Court.
10.23 PW.23-R. Srikanth is the Sub-Inspector of Police, Udayagiri Police Station, who conducted spot mahazar and seized some articles under Ex.P2 and also arrested the accused persons and produced them before the Court.
10.24 PW.24-Dr. Mohan working in K.R. Hospital is another important witness, who corroborated the evidence of the Executive Magistrate, who recorded the dying declaration by giving certificate that, on 14.11.2010, the deceased-Amrin Banu was admitted to the hospital for treatment and on 15.11.2010, he received the requisition from Udayagiri Police Station and he certified about the fitness of the deceased at the time of recording of the statement by the Executive Magistrate as per Ex.P7.
10.25 PW.25- K.T. Mathew Thomas, who received intimation by way of a death memo from the hospital and in fact, converted the case for the offence punishable under Section 302 of IPC and reported the same to the Court and after completing the investigation, he has submitted a charge-sheet against the accused persons.
11. Out of the above said witnesses, in our opinion that the evidence of the parents and some of the witnesses, we have already referred to, the neighbors, who have supported the case of the prosecution and the dying declaration of the deceased and the defence taken up by the accused on the basis of the documents produced, i.e. Exs.D1 & D10 and Ex.P26, the Court has to ascertain from the above said evidence, whether the prosecution has proved the case beyond all reasonable doubt.
12. On careful perusal of the evidence of PWs.1 and 3, who are the father and mother respectively of the deceased, have categorically stated in their evidence with regard to ill-treatment and harassment by the accused persons with respect to demand of dowry and also for other various purposes. They have also stated that, there existed some differences between the accused and the deceased and there are cases pending, lodged by the deceased against the accused persons for seeking maintenance and also with reference to demand of dowry and the ill-treatment by the accused persons. In this context, the evidence of these witnesses also discloses that the panchayat was held between the accused and the deceased, as noted above, who have spoken that they have advised the accused and the deceased to live separately from the parents of the accused and the parents of the deceased should not interfere with the happy living of accused No.1 and the deceased. Accordingly, it appears that accused No.1 and the deceased started residing together. PWs.1 and 3 have further stated that, in spite of that, the accused was not taking care of his wife and not looked after her with love and affection. It is the case of these two witnesses that, after the deceased sustained injury, they went to the hospital and enquired with her, as to what happened, then only the deceased disclosed about the misconduct of the accused persons in ill-treating and harassing her. Therefore, they felt that the accused persons are the root cause for the death of the deceased.
13. Though the marathon cross-examination is adverted on these two witnesses, in our opinion, nothing worth has been elicited so as to totally disbelieve the evidence of these witnesses with regard to the earlier conduct of the accused as well with reference to the differences between the accused and the deceased and pendency of the cases between them and thereafter, accused No.1 and the deceased started residing together separately. The evidence of these witnesses and the other neighbours, who have stated that, the death was occurred in the house of the accused. They have also deposed about the ill-treatment and harassment given by the accused persons to the deceased. But, it is not sufficient to draw an inference that only due to the ill-treatment and harassment by the accused persons, the incident happened on that particular day. If so, how the incident happened, whether accused No.1 is responsible for the death of the deceased and whether accused Nos.2 to 4 were also responsible for the death of the deceased and they have actually by their misconduct abetted accused No.1 to commit such an offence or driven the deceased to commit suicide by pouring kerosene on herself is to be examined.
14. In this background, the material available on record has to be looked into. The main material relied upon by the prosecution and the accused is dying declaration of the deceased as well as the counter documents, i.e. Exs.D1 & D10 and Ex.P26 relied upon by the defence. Firstly, we would like to discuss about the documents which are relied upon by the accused i.e. Ex.D1. According to the defence, it is the document came into existence at the earliest point of time. Ex.D1 is the admission record, wherein it shows that, the deceased was admitted to Krishna Rajendra Hospital (K. R. Hospital) on 14.11.2010. This document discloses that the patient, Amrin Banu, was admitted to the hospital by her husband and she had suffered deep burn injuries to the extent of 65 to 75% with the history of accidental burns at home. On examination, the Doctor found superficial to deep burnt areas seen over lower part of face, neck, chest, abdomen etc. She was shifted to casualty medical ward and it is stated that, the patient has later developed septicemia and succumbed to the injuries on 19.11.2010. This document has been relied upon to show that, at the earliest point of time, when she was admitted to the hospital, the history given was accidental burns at home. Another important document relied upon is Ex.D10. It is a case-sheet, wherein it shows at the time of admission of the patient, entries are made in the register maintained at K. R. Hospital. It is an attested copy issued by the resident Medical Officer. This document shows that, at the time of admission of the patient, the Doctor has personally taken the statement of the injured, wherein on 14.11.2010 at 4:00 p.m., the injured has given the statement that in her house, she poured kerosene on herself and lit fire. Further, the learned counsel for the defence also brought to our notice about the entries in Ex.D1-admission record which contains as many as 19 pages. It is seen that in Ex.D1 at page No.3, on 15.11.2010, the Police have made request to the Doctor with regard to the condition of the patient, for which, the Doctor at 12:40 p.m. gave an opinion that the victim is fit to give the statement. At page No.5 of the case-sheet also discloses that the patient herself has given the history of the burns wherein, it is recorded by the duty Doctor that, the patient was putting kerosene from one bottle to another, at around 3:00 p.m. on 14.11.2010, in her house at Rajivnagar, Mysore, but kerosene has accidentally soaked on her garments and accidentally her garments came in contact with fire. After this information to Doctor, it appears the treatment was started on the injured. Further, at page No.9 of the said document, the Doctor has also recorded that, there was a “Grave Risk” and therefore, under such circumstances, the consent was taken from the father, i.e. PW.1. In fact, PW.1 has also admitted his signature in this document Ex.D1 during the course of cross-examination. The duty Doctor has also recorded that, the said consent was in the following terms;
“I/We have been explained in our own language about the condition of the patient, complications associated with it and the progress. I/We agree and give our valid consent for the treatment available in this hospital and do not hold any treating doctor/staff/ Authority responsible for any untoward consequences during the hospital stay.”
This also shows that the patient condition was not so good and therefore, consent was taken from the father. Therefore, this document discloses that at the earliest point of time, the two versions are available. One was that of self immolation and another was while transferring kerosene from one bottle to another, the kerosene spill over the clothes of the deceased and it was an accidental fire. No allegations against any body at that point of time.
15. In this background, the learned counsel also relied upon the evidence of the prosecution witnesses. PW.2-Vanitha is another material witness, though turned hostile to the prosecution, the evidence of this lady plays a dominant role. PW.2 has deposed before the Court that, on the date of the incident, in the afternoon, she was ready to go out to see the exhibition along with her children. At that time, a lady from third floor screamed for help and this witness went to the house of the accused in the third floor and saw the victim with burn injuries and by the side of the victim, the accused was also there and thereafter, they shifted the victim to Gopala Gowda Hospital and after first-aid, she was shifted to K.R. Hospital. She has also deposed that at about 7:00 p.m., the father and mother of the injured came to the hospital. She also further stated that when she went to the house of the accused, accused No.1 and child was there. The accused No.1 was not known to this witness, therefore, he did not disclose anything. The injured was suffering from irritation due to the burns.
16. This witness was treated hostile during the course of cross-examination. It is suggested that, this witness along with Sameera Banu went to the house of the accused and the accused was extinguishing the fire by putting a bed-sheet on the injured, at that time Sameera Banu asked accused No.1 as to how the incident happened then he told that, while transferring the kerosene from one bottle to another, the clothes of the deceased soaked with kerosene and the accidental fire had occurred, these witnesses have also observed a plastic-can and Matchbox etc. at that particular place. This suggestion, in fact, made by the prosecutor has not been denied by this witness, nevertheless the suggestion in our opinion depicts the case of the prosecution. Therefore, if this suggestion is accepted as true, it discloses that, the prosecution wants to establish from the mouth of this witness that, the accused at the earliest point of time has wrapped the bed- sheet on the deceased and immediately after extinguishing the fire, shifted her to the hospital and he told these witnesses that it was an accidental fire. This particular suggestion is not an ordinary suggestion as we have already referred to Exs.D1 and D2 which also corroborate this particular suggestion made by the prosecutor in the course of cross-examination of this witness. Exs.D1 and D10 were confronted to PW.1. In fact, PW.1 has admitted the existence of Exs.D1 and D10 and also admitted his signature on Ex.D1, but this witness has absolutely no explanation so far as these two documents are concerned. He never stated that those documents are prepared by the Doctor at the instance of the accused or he has not explained as to why the victim has given such statements before the Doctor at the earliest point of time etc.
17. In this background, the document Ex.P26-a requisition is also relevant to be taken note of. The Police, in fact, made a request to the Doctor, i.e. to the Medical Officer, K .R. Hospital, Mysore. In this letter, they have recited that, on 14.11.2010, the victim has poured kerosene on herself and lit fire. On that ground, she was admitted to the hospital and the Police have to record the statement of the said witness. Thereafter, the Doctor has given his opinion with regard to the fitness of the victim on this document itself on 15.11.2010 at 12:40 p.m. The Doctor has opined that the victim was physically fit to give statement. Therefore, these three documents existed at the earliest point of time, the opinion of the Investigating Officer also show that the Investigating Officer was having knowledge of Exs.D1 and D10. Perhaps that may be the reason, he has mentioned in Ex.P26 that the injured was admitted to the hospital on the history that, she poured kerosene on herself and lit fire. Whether this factum is true or not, to ascertain the same, the Investigating Officer wanted to record the statement of the victim.
18. Apart from the above said evidence, the prosecution has also put similar suggestion to other witnesses as suggested to PWs.2 and 9 that, on the date of incident, the accused told them also that his wife sustained burn injury while transferring the kerosene from one bottle to another and he wrapped the bed sheet on her and thereafter went to bring auto-rickshaw. Though the suggestion was denied by the witness, but this suggestion is nothing but the projection of the case of the prosecution which has got its own impact with reference to Exs.D1 and D10 which we have already referred to.
19. In this background, the Court has to examine the dying declaration alleged to have been surfaced on 15.11.2010 recorded by PW.8-Taluka Executive Magistrate. Ex.P7 itself discloses that the injured has given the statement making allegations against the accused with reference to the incident taken place on the particular date of the incident. According to her, in the statement, she has stated that, there were some differences between the husband and the wife, cases were also pending against the accused filed by the injured and the accused was forcing her to withdraw those cases. In this background, on 14.11.2010, the accused had been to a marriage party, after lunch, he came back to the house, the victim started quarrelling with her husband as to why he has not taken her to the marriage party and why he has not bought any food to her. In this context, after due quarrel, accused No.1 assaulted her, poured kerosene on her and lit fire and thereafter, he himself wrapped the bed-sheet and shifted her to the hospital. She has stated that accused Nos.2 to 4 were also ill-treating and harassing her. There is no allegation whatsoever so far as accused Nos.2 to 4 are concerned, whether they ill-treated or harassed at any point of time, caused her such a humiliation so as to cause any injury to herself or drive her to commit suicide. Therefore, on plain reading of this declaration, there is no sort of allegation so far as accused Nos.2 to 4 are concerned so as to even attract Section 498A of IPC.
20. Now coming to the recording of the dying declaration, PW.8 has deposed that, after taking the opinion of the Doctor, he has recorded the statement of the injured and also, conducted the inquest and virtually he has reiterated the statement of the witnesses as what they have stated in the inquest, it was totally unnecessary by this witness to repeat the statement of the witnesses. During the course of cross-examination, though lengthy cross-examination has been adverted to, but the worth cross- examination is that, the Talshidar, at the time of recording the statement of the witness, has not questioned anything about her statement made before the Doctor earlier when she was admitted to the hospital. The Executive Magistrate has given an answer that, he has not enquired with the injured as to what was the reason and what prompted her to give such statement before the Doctor at the earliest point of time when she was admitted to the hospital. Therefore, there is absolutely no explanation so far as these Exs.D1 and D10 are concerned by the Executive Magistrate or no explanation is sought from the injured in this regard. PW.24-Doctor has also deposed that, he has given the certificate with regard to the fitness of the injured and he was also present throughout at the time of recording the statement of the victim. So we accept the procedure that has been followed by PW.8 and PW.24 in recording the dying declaration as proper and correct, because the Executive Magistrate, after ascertaining from the Doctor with regard to the fitness of the injured, recorded the dying declaration and the Doctor also deposed that, before recording of the dying declaration, he has given the Certificate and he was present throughout while recording of the statement. Therefore, we do not find any fault in the evidence of these two witnesses in recording the dying declaration, but the question arises whether such dying declaration can be believed in view of the above surrounding circumstances.
21. It is also worth to note that, up to 15.11.2010 till the father and the mother came to the hospital and had talk with the deceased and came to know that, her position is very precarious and therefore, they have given consent to the Doctor to go on with the medication to the victim. Therefore, it has come to the knowledge of PWs.1 and 3 that the deceased may not survive. Thereafter only, it appears the dying declaration surfaced. Before that, the evidence of PWs.1 and 3 also disclose that, on 14.10.2011, they went to the hospital at 7:00 pm itself and up to 10:00 p.m., the deceased was not in talking condition and at about 10:00 p.m., she disclosed about the factum of the accused pouring kerosene on her and litting fire. In spite of coming to know about such particular facts, neither PWs.1 or 3 informed the same to any of the Doctors, who are treating the victim to record the version of the victim in contrast to the version given by her at the earliest point of time and to record the subsequent statement of the victim without waiting for the Police to visit the hospital. It is also evident from the evidence of these two witnesses that, the Police also had gone to the hospital on 14.11.2010 itself, even Investigating Officer has also corroborated this aspect, but then also PWs.1 and 3 never disclose to the Police with regard to the information given by the deceased to PWs.1 and 3 about the misconduct of accused No.1 in pouring kerosene on the deceased and litting fire. Till the next day at 12:40 p.m., nothing has been done either by PWs.1, 3 or the Police in registering the case against the accused, if at all, it was a true fact and the victim has really made any allegation against accused No.1. This also in our opinion creates a serious doubt, as to whether really the deceased has given such a statement before PWs.1 and 3.
22. Now coming to the dying declaration, of course, the deceased has made allegations against accused No.1. The patient was also conscious and she was in a fit mental condition to give statement. When it is said to the Doctor by PWs.1 and 3 that she was in fit mental condition, she would have revealed as to what has happened in the house on 14.11.2010 at the time of the incident and when she could very well remember what has happened previous to 14.11.2010 with regard to the differences between herself and her husband and the cases pending against them and the differences between them etc., but she failed to explain why she has given a statement before the Doctor at the earliest point of time as per Exs.D1 and D10 and why she has not given any explanation so far as this aspect is concerned. This mystery has not been cracked by the prosecution in the course of evidence. Therefore, it creates a serious doubt, whether such statement was actually given by the victim before the Doctor as well the Tahsildar or not. Even if we admit that such statement was made, whether it was really the statement of the victim or which was due to prompting or tutoring or influenced by PWs.1 and 3, who have come to know that she will not survive.
23. The above said circumstance is also, in our opinion, not explained even by the Investigating Officer. We find there are serious lapses on the part of the investigating agency. The prosecution and the investigating agency should very fairly act upon before the Court and also at the time of investigation to bring the truth. It is the duty of the Investigating Officer to thoroughly investigate the matter, unmindful of the facts, which are the material that goes in favour of the accused or in favour of the prosecution. In cases like this, the Investigating Officer has to thoroughly and meticulously investigate the matter right from the time of the incident up to the filing of the charge-sheet as to what exactly happened. In this background, the Investigating Officer has not even cared to examine any of the Doctors, who have recorded the statement of the victim as per Exs.D1 and D10 or even the Investigating Officer did not care to obtain these documents and got it explained during the course of filing of the charge-sheet as to why the dying declaration has to be believed when compared to Exs.D1 and D10. The Investigating Officer has also not recorded the statement of any of the material witnesses at Gopala Gowda Hospital wherein, the victim was treated initially and thereafter, the treated Doctor in K.R. hospital so as to exactly ascertain what was the real reason for the death of the deceased.
24. On the other hand, the accused have obtained these documents from the hospital and confronted the same to PW.1, but no explanation if offered so far as these documents are concerned even after admitting the existence of the documents and signature on Ex.D1. The Investigating Officer also, knowing fully well the existence of these documents, has not even given such information to the Executive Magistrate at the time of recording of the dying declaration to elicit, why such a statement was given by the deceased before the Doctors at the earliest point of time. Even the Investigating Officer has also not tried to explain these documents as to why these documents should not be believed by the Court and why only the dying declaration has to be believed.
25. In the wake of the above said facts and circumstances, the prosecution itself has projected various suggestions to the witnesses showing about the conduct of the accused. The conduct of the accused, in our opinion, in cases like this, plays a dominant role. Accused No.1, at the initial stages, at the earliest point of time, has disclosed before the witnesses, as noted above that, while transferring the kerosene from one bottle to another by his wife, accidentally the kerosene spill over the clothes of the deceased and there was an accidental fire and he, in order to extinguish the fire, wrapped the bed-sheet on her and he requested the neighbours to look after the injured so that he can go and bring an auto-rickshaw to shift injured to the hospital. Further, the witnesses including PWs.1 and 3 have deposed before the Court that the accused No.1 was present throughout in the hospital, taking care of his wife and he never tried to vanish or abscond himself. Therefore, it creates a serious doubt, if at all, he himself has committed such an offence and he would have anticipated that, the injured would be definitely implicate him, in that context, he would have escaped from that particular place. Though this circumstance may not be appreciable in all the cases, but depending upon the facts and circumstances of each case, the Court has to consider the conduct of the victim and the conduct of the accused with reference to the incident that has taken place. Therefore, till the arrest of the accused by the Police, the accused was very much present and he was taking care of his wife. The Doctor also never disclosed that, at any point of time, the accused was scared of himself as he was the person actually admitted the victim to the hospital. So, these are all the circumstances indicate that all was not well on that particular day. Even though, the dying declaration is recorded in accordance with the procedure and though it is said that the victim has stated against the accused in the dying declaration, but in view of the earliest statement made by the deceased, the dying declaration is doubtful and suspicious and it creates a serious doubt, whether the deceased could have given such a statement before the Executive Magistrate.
26. Though it is not so relevant, nevertheless the defence has also tried to make out a ground that the Executive Magistrate has shown more interest in recording the dying declaration in order to help PW.1. The photographs are produced before the Court which are marked as Ex.D6 to D8 and the questions have been put so far as these photographs are concerned. The Executive Magistrate, in the course of cross-examination, has admitted his presence along with PW.1 and a Police Constable talking with them and also having coffee with them in a hotel, though this will not create any impression in the mind of the Court that the Executive Magistrate is interested in recording the dying declaration in order to help PW.1, but considering the other facts and circumstances, in our opinion, this aspect cannot be easily brushed aside.
27. Looking to the above said facts and circumstances, the prosecution and also the defence material available on record, there are certainly two views are available before the Court. One view is that, the deceased has suffered burn injuries due to accidental fire or by means of self immolation. The second view is that, the deceased has sustained injuries due to pouring of the kerosene and litting fire by the accused. At the earliest point of time, the documents Exs.D1 and 10 and the evidence of the witnesses, as per the suggestions made, as we have in detail discussed clearly discloses that the first view is supported by the documents of evidence. Only after the appearance of the parents and other relatives to the hospital, the dying declaration has been surfaced. Therefore, such dying declaration should be taken with a pinch of salt, whether this was prompted by PWs.1 and 3 to the deceased to give such statement against the accused for having come to know that, she may not survive. Therefore, under the about said facts and circumstances, the benefit of doubt when two views are possible, preferring the view which is favorable to the accused has to be taken into consideration. Accordingly, giving such benefits of the above said doubts, we prefer to acquit the appellant/accused persons. The trial Court, in fact, has not bestowed its attention meticulously looking to the above said evidence. Further, when two views are available, the trial Court has selected the view which is not favourable to the accused. In our opinion, the view taken by the trial Court is not proper and correct. Therefore, the judgment of the trial Court required to be set aside. Hence, we proceed to pass the followings:
O R D E R i. Both the appeals are allowed. Consequently, the judgment of conviction and order of sentence dated 6/7-4-2016 passed by the IV Additional Sessions Judge, Mysuru, in Sessions Case No.126 of 2011, is hereby set aside. Appellant/Accused No.1 in Criminal Appeal No.795 of 2016 is hereby acquitted of the charges levelled against him for the offences punishable under Sections 498A and 302 of the I.P.C. and appellants Nos.1 to 3 (accused Nos.2 to 4) in Criminal Appeal No.796 of 2016 are hereby acquitted of the charges levelled against them for the offence punishable under Section 498A read with Section 34 of the I.P.C.;
ii. Bail and surety bonds executed by accused Nos.2 to 4 are hereby cancelled, as the impugned sentence passed against them has already been suspended and they have already been released on bail by this Court vide order dated 5-5-2016;
iii. Accused No.1 – Mohammed Nasiruddin is ordered to be released from the custody forthwith, if he is not required in any other case;
iv. If accused Nos.1 to 4 have deposited any fine amount, the same is ordered to be refunded to them on proper identification and acknowledgement; and v. The Registry is hereby directed to communicate this order to the concerned Jail Authorities for release of accused No.1 forthwith, if he is not required in any other case.
SD/- JUDGE SD/- JUDGE KGR* / kvk