IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL No.762 OF 2013 BETWEEN:
STATE BY K.M. DODDI POLICE STATION MANDYA. ... APPELLANT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II) AND:
1. KANTHARAJU SON OF SIDDEGOWDA AGED ABOUT 35 YEARS.
2. MADAMMA @ SIDDAMMA WIFE OF SIDDEGOWDA AGED ABOUT 63 YEARS.
3. SIDDEGOWDA SON OF LATE DEVEGOWDA AGED ABOUT 74 YEARS.
4. DEVARAJU SON OF SIDDEGOWDA AGED ABOUT 38 YEARS.
ALL ARE RESIDING AT KADAKOTTANAHALLI VILLAGE C.A. KERE HOBLI MADDUR TALUK MANDYA DISTRICT-571 428. ... RESPONDENTS (SRI. SATYANARAYANA P. HEGDE, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF THE CRIMINAL PROCEEDURE CODE, PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER DATED 31.01.2013 PASSED BY THE PRESIDING OFFICER, FTC-III, MANDYA, IN S.C. No.23/2010 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 114, 498-A, 304B AND 302 OF INDIAN PENAL CODE AND SECTIONS 3, 4 AND 6 OF THE DOWRY PROHIBITION ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, H.P.SANDESH J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the State challenging the judgment dated 31.01.2013 passed by the Fast Track Court – III, Mandya, in Sessions Case No.23 of 2010, whereby accused Nos.1 to 4, who are respondent Nos.1 to 4 herein, have been acquitted for the offences punishable under Sections 114, 498A, 304B and 302 of the Indian Penal Code, 1860, and under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.
2. The brief facts leading to this appeal are as under:
The case of the prosecution is that the marriage of deceased Smt.Uma was performed with accused No.1 on 14.05.2007. Accused No.2 is the mother-in-law, accused No.3 is the father-in-law and accused No.4 is the brother- in-law of the deceased. It is the further case of the prosecution that prior to marriage of the accused No.1 with the victim, the accused persons demanded a sum of Rs.2,00,000/-, 150 grams of gold from the victim’s family and at the time of marriage, they received a sum of Rs.1,00,000/- and a gold ring from them. After the marriage, accused persons demanded additional dowry of Rs.10,000/- from the victim’s family and in that connection, subjected deceased to physical and mental harassment. On 07.07.2009, at around 7 p.m., accused No.1 picked up quarrel with the deceased at the instigation of accused No.2 and by pouring kerosene on her, set her on fire. The victim had sustained 40-50% burn injuries. Initially, she was treated at Mandya District hospital and later, she was shifted to K.R. hospital, Mysuru. The statement of the injured was recorded as per Ex.P34 by P.W.39 – head constable in the presence of Doctor – P.W.32. Further, Taluka Executive Magistrate on receiving intimation, recorded the dying declaration as per Ex.P35 in the presence of the Doctor – P.W.35. The Police based on the statement of the victim, registered case in Crime No.133/2009 before K.M. Doddi police station for the offences punishable under Sections 498A, 307, 114 read with Section 34 of the Indian Penal Code, 1863 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The victim died in the hospital on 14.07.2009 due to the burn injuries sustained by her. Police conducted the investigation and filed the charge-sheet against the accused for the offences punishable under Sections 114, 498A, 304B and 302 of Indian Penal Code, 1860 and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.
3. The accused persons did not plead guilty and claimed trial. Hence, the prosecution got examined witnesses as P.Ws.1 to 47 and got marked the documents as per Exs.P1 to P56 and material objects as per M.O. Nos.1 to 7. On behalf of the accused, they got marked Ex.D1. The Court below recorded the statement of the accused under Section 313 of the Criminal Procedure Code, 1973. The accused did not choose to lead any evidence. Thereafter, the Court below heard the arguments of the prosecution and also the defence counsel and acquitted all the accused persons. Being aggrieved by the impugned judgment of acquittal passed by the Court below, the State has preferred this appeal.
4. It is contended in the appeal memorandum that the victim’s statement and dying declaration were recorded as per Exs.P34 and P35. The material on record discloses that the deceased was subjected to physical and mental torture at the instigation of the other accused and accused No.1 alone set her on fire. Ex.P34 is the statement of the deceased recorded by P.W.39 – Head Constable after confirming that she was in a fit condition to make the statement. P.W.32 – Doctor has stated that the statement of the deceased was recorded in his presence. He has signed Ex.P34. P.W.32 also deposed that the victim was physically fit to give the statement. The Taluka Executive Magistrate, P.W.36, recorded the dying declaration of the victim in terms of Ex.P35 in the presence of the Doctor – P.W.35. The endorsement of the Doctor is also marked as per Ex.P35(a). P.W.36 has clearly stated in his evidence that the victim was answering all the questions posed by him. Though there was dying declaration of the victim as per Exs.P34 and P35, the trial Court has grossly committed an error in acquitting the accused. Exs.P34 and 35 are consistent and believable. Also, the material on record discloses that the victim had sustained only 40 to 50% burn injuries and she was in a fit state of mind. Witnesses, who have been examined by the prosecution are independent witnesses and hence, non- appreciation of the dying declaration of the victim in the proper perspective has resulted in miscarriage of justice. The Court below has disbelieved the dying declaration of the victim on the ground that the MLC extract, Ex.D1, indicated that the victim initially stated that she poured kerosene on herself and set herself on fire, which is not proper in view of Exs.P34 and 35. Hence, this Court has to re-appreciate the evidence available on record and convict the accused persons.
5. Learned State Public Prosecutor - II, Sri Pramod Chandra, in his arguments, vehemently contended that the Court below did not consider the dying declaration of the victim as per Exs.P34 and P35 and also the evidence of witnesses, who have been examined with regard to the dying declaration. The evidence of the Doctor – P.W.32, who made the statement that the injured was in a fit condition to make the statement, has not been properly appreciated by the trial Judge.
6. Per contra, learned counsel appearing for the accused - respondents would contend that the Court below has meticulously considered the evidence available on record and it has also taken note of the evidence of the Doctor, who recorded Ex.D1, accident register extract, based on the information given by the injured herself and Exs.P34 and P35 do not inspire the confidence of the Court and hence, it has rightly acquitted the accused persons. There are no grounds to interfere with the judgment of conviction.
7. Having heard the arguments of the learned State Public Prosecutor - II for the State and the learned counsel for the respondents, the point that arises for our consideration is:
Whether the Court below has committed an error in acquitting the accused persons for the charges levelled against them and whether the impugned judgment requires interference?
8. The case of the prosecution is that the first accused being the husband of deceased subjected her to mental and physical harassment at the instance of accused Nos.2 to 4, who are the mother-in-law, father-in-law and brother-in-law respectively of the deceased. It is the case of the prosecution that prior to marriage of accused No.1 with the victim, the accused demanded dowry of Rs.2,00,000/- and 150 grams of gold from the victim’s family and at the time of marriage, they received an amount of Rs.1,00,000/- and a gold ring from them and after the marriage, the accused demanded additional dowry of Rs.10,000/- and subjected the victim to both mental and physical cruelty and accused No.1 alone set her on fire by pouring kerosene on her. In order to prove the case of the prosecution, the prosecution examined witnesses as PWs.1 to 47.
9. Now, in view of the contentions raised by the State and also the defence, this Court has to re-appreciate the evidence available on record.
10. The prosecution examined P.W.1 in respect of Ex.P1 - mahazar. He did not support the case of the prosecution and turned hostile. In his cross-examination by the prosecution, he has admitted that he shifted the injured to Mandya hospital. He has further admitted that he heard the screaming sound of the injured and on hearing the same, he went to the house of the deceased. He found that the victim was suffering from burn injuries.
11. P.W.2 is the mother of the deceased and she also did not support the case of the prosecution regarding demand and acceptance of dowry by the accused. She was subjected to cross-examination and nothing is elicited in her cross-examination to support the case of the prosecution.
12. P.W.3 also did not support the case of the prosecution. He was subjected to cross-examination by the prosecution. He has denied the suggestion that when the parents of deceased approached him for advancement of loan of Rs.50,000/- in connection with the marriage expenses of their daughter, he gave the said amount to them.
13. P.Ws.4 to 6 also turned hostile. They have not spoken anything about the harassment meted out to the victim by the accused. The other witnesses, who have been examined before the Court, also did not support the case of the prosecution.
14. The prosecution mainly relies upon the evidence of P.W.29 – Medical Record Officer in Mandya hospital. He has stated in his evidence that at the request of Dowry Prohibition team, C.O.D., Bengaluru, he had certified and issued the medical record register extract, which was marked as Ex.P32. He produced the accident register before the Court below and stated that the injured at the time of admission in the hospital had made statement in the presence of the duty Doctor that a quarrel took place between herself and her husband, she got depressed and set herself on fire.
15. PW.30 is the Doctor of K.R. hospital, who produced the case record sheet in respect of the victim maintained by K.R. hospital, Mysuru. Copy of the said document was marked as Ex.P33.
16. P.W.31 is the Doctor of Columbia hospital, Mysuru. He has stated that the injured was brought to the hospital on 07.07.2009 at about 10:45 p.m. On examination of the victim, he noticed that she had sustained 40 to 50% burn injuries, her condition was poor and advised her to shift to K.R. hospital, Mysuru, for further treatment.
17. P.W.32 – Doctor in his evidence has stated that the statement of the injured victim was recorded by Head Constable, Mahadevaiah, in his presence. He has not given any certificate to show that the injured victim was in a fit condition to make the statement, but he has signed the statement of the injured as her statement was recorded by the Head Constable in his presence and at that time, she was in a fit condition to make the statement. P.W.32, in his cross-examination, has admitted that in the case sheet dated 08.07.2009, it is mentioned that the condition of the victim was poor. He has further admitted that in the said case sheet, it is not mentioned at what time, her statement was recorded and he also did not produce any document to show that he was on duty on the said day. He has further admitted that in Ex.P34, he did not state as to how much time was taken to record the statement of the victim and also the beginning and closure time of such recording. He was not in a position to state as to whether it was head constable, who accompanied the injured or any other person, who accompanied her at the time when she gave her statement. He further admitted that if the Taluka Executive Magistrate came to the hospital and recorded the statement of the victim, he ought to have been in the spot. Also, in Ex.P34, he has not given any explanation as to for what purpose, he attested the said document. He further admitted that in Ex.P34, there is no mention of the fact that he was present at the time when he signed the said document. It is elicited that in Ex.P34, there were two left thumb marks and in the absence of attestation for one left thumb mark, he was not in a position to tell as to who affixed the same. It was suggested to him that Police Constable had not recorded his statement and same was denied.
18. P.W.33 – Doctor of Mandya Medical College has stated that the mother-in-law of the victim brought her to Mandya Medical hospital. He has further stated that the injured herself made statement that her husband quarreled with her and hence, she got upset and set herself on fire and the same has been entered in the register. He has further stated that in the register, he has mentioned that she was in a fit condition to make the statement. He has also identified the signature in Ex.P32. In the cross-examination, MLC register was confronted to him and he has admitted that he had registered the statement of the victim in the MLC extract.
19. P.W.34 – Doctor has stated in his evidence that he examined the injured in the hospital and found that she had sustained 40 to 45% burn injuries. Thereafter, the injured was shifted to burn injuries ward.
20. Having heard the arguments of the State and on perusal of the material available on record, none of the independent witnesses have supported the case of the prosecution including the mother of deceased, who has been examined as P.W.2. In her evidence, she has categorically stated that the accused has not demanded any dowry from them and she has not given any dowry to them. This witness, P.W.3, has been examined to support the case of the prosecution that parents of the victim had availed money to give dowry to the accused. P.W.3 also did not support the case of the prosecution.
21. Learned State Public Prosecutor - II mainly relies upon Exs.P34 and P35 and the material witness P.W.33 – Doctor, who at the first instance examined the injured when she was taken to the hospital and the evidence of P.W.33 is clear that when the injured was taken to the hospital, she herself gave a statement that she only set fire being depressed on account of the quarrel between herself and her husband. Ex.P32 clearly discloses that the victim only made the statement before P.W.33. Further, it is important to note that MLC register extract was marked as Ex.D1 and the same discloses that the injured only made the statement. No doubt the prosecution relied upon the other two documents, Exs.P34 and P35. Ex.D1 came into existence on 07.07.2009 at 10:20 p.m. and Ex.P34 – dying declaration came into existence on 08.07.2009 at 9:30 p.m., which has been recorded by the Head Constable and except the signature of the Doctor, there is no endorsement to show that the injured was in a sound state of mind to make the said statement.
22. Keeping in view the contentions of the prosecution, this Court has to consider Ex.D1 – MLC register extract and the fact that the victim made the statement that due to quarrel between herself and her husband, she set herself on fire. Ex.P35 – dying declaration of the victim discloses that the same was recorded by P.W.36 - Taluka Executive Magistrate on 08.07.2009 from 4 a.m. to 4:45 a.m. and he has affixed his signature to the said document. In the cross- examination of P.W.32 - Doctor, he has admitted that he did not mention anywhere in the dying declaration that the victim was in a fit condition. Further, he has admitted that the condition of the victim was very poor and the same had been mentioned in the case sheet and he did not mention as to from which time he commenced the recording of the statement of the victim and when the recording was closed. He has further admitted that in the case sheet, nowhere it is mentioned that he was on duty and also he could not tell as to who accompanied the victim i.e., whether it was Police Constable or any other person came along with her. He has further admitted that if Taluka Executive Magistrate had recorded the statement of the victim in the hospital, he would have been present at that time. He has admitted that in Ex.P34, he has not given explanation as to why he signed the said document. He has admitted that there are two left thumb marks in Ex.P34. He is not able to say as to who attested the L.T.M. of the victim.
23. Having considered these answers elicited from the mouth of P.W.32 - Doctor, it does not inspire the confidence of this Court that the dying declaration was recorded in his presence that too at the earliest point of time between 4.00 to 4:45 a.m. on 08.07.2009 by the Head constable. There is no endorsement with regard to the fit condition of the victim and there is no explanation on the part of the prosecution with regard to Ex.D1 – accident register and also in respect of the evidence of P.W.33. P.W.33 – Doctor at the first instance on 07.07.2009, treated the injured and her statement was recorded by him in terms of Ex.D1 and it shows that it was a self burn case. When such being the matter, this Court cannot believe the documents Exs.P34 and P35. Hence, we do not find any reason to interfere with the order of the trial Court in acquitting the accused of the offences alleged against them. None of the independent witnesses have supported the case of the prosecution.
24. It is pertinent to note that even the mother of the victim has not supported the case of the prosecution.
Documents, Exs.P34 and P35 do not inspire the confidence of this Court. The appellate Court can reverse the findings of the Court below only when it finds that the material evidence is not appreciated by the Court below and the findings arrived at by the Court below are perverse and against the material on record. Merely because a second view is possible in the facts of the case is not a ground to reverse the findings of the Court below. In the instant case, the Court below has considered the material on record and appreciated the same in the right perspective and hence, we do not find any perversity in the impugned judgment.
25. Hence, we do not find any reason to interfere with the reasoning assigned by the trial Court in passing the impugned judgment of acquittal and to come to the conclusion that the trial Court has committed an error in appreciating the evidence on record as contended by the learned State Public Prosecutor-II. Hence, the appeal is devoid of merit.
26. In view of the discussion made above, we pass the following;
ORDER The Appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE sma