IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CRL.A.NO.93/2014 BETWEEN:
STATE OF KARNATAKA BY BELLUR POLICE STATION. ...APPELLANT (BY SMT. NAMITHA MAHESH.B.G, HCGP) AND:
1. GIRISHA, SON OF VENKATARAMANAPPA, AGED ABOUT 26 YEARS.
2. JAYAMMA, WIFE OF VENKATARAMANAPPA, AGED ABOUT 45 YEARS.
3. VENKATARAMANAPPA, SON OF YALLABHOVI, AGED ABOUT 68 YEARS.
ALL ARE R/O AMBALAJEERANAHALLI VILLAGE, BELLUR HOBLI, NAGAMANGALA TALUK - 571432 ...RESPONDENTS (BY SRI.C.N.RAJU, ADVOCATE) THIS CRL.A. IS FILED U/S 378(1) AND (3) CR.P.C BY THE STATE P.P FOR THE STATE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.6.2013 PASSED BY THE PRL. S.J., MANDYA IN S.C.NO.97/2009 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 498A, 302 R/W 34 OF IPC, 304B R/W 34 OF IPC AND SEC.3 AND 4 OF D.P.ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the prosecution in challenge to the judgment and order of acquittal dated 28.6.2013 in S.C.No.97/2009 on the file of the Sessions Judge, Mandya.
2. The case of the prosecution is that a complaint was lodged by P.W.1-Munilakshmamma alleging that her daughter Leelavathi was given in marriage to Accused No.1-Girish on 20.8.2006 by giving dowry of Rs.10,000/- cash, a gold chain and a neck chain. Thereafter, her son-in-law and his parents namely Smt. Jayamma and Venkataramanappa were ill-
treating her daughter demanding additional dowry and in furtherance of their common intention on 16.7.2008 in their house at Ambalajeerahally at about 10.30 a.m. they attempted to commit homicidal death of her daughter by douzing her in kerosene and trying to set her ablaze. Based on the said compliant, FIR was registered in Crime No.254/2008 by the Bellur Police on 8.11.2008 for offences punishable under Sections 498- A, 302 of IPC read with Section 34 of IPC and also Sections 3 and 4 of the Dowry Prohibition Act.
3. The material on record would indicate that the aforesaid incident took place on 16.7.2008 at about 10.30 a.m. when the victim was in her marital home in the company of accused Nos.1 to 3 wherein it is alleged that there was an attempt to douze her in kerosene by mother-in-law of the victim Smt. Jayamma-second accused, husband of the victim-first accused in trying to lit fire to the victim and third accused-
Venkataramanappa in trying to close the door of the kitchen to prevent the victim from calling anybody to her help when there was an attempt to subject her to homicidal death.
The records would also indicate that immediately thereafter she was taken to Adichunchanagiri Hospital on the same day at 11.05 a.m. as could be seen from Ex.P2 the entry in the accident register maintained in the said hospital, which is situated in Balagangadhar Nagar near Adichunchanagiri, Nagamangala Taluk, Mandya District. Though the incident took place on 16.7.2008 and the victim was admitted to the hospital on the same day, the register does not indicate that the same was reported to jurisdictional police. On the contrary, it is seen that a formal complaint was lodged with Bellur Police on 8.11.2008 by the mother of the victim namely Smt.Munilakshmamma, on the basis of which complaint was registered in Crime No.254/2008.
Subsequently, investigation was completed and in the meanwhile, the victim was also discharged from the hospital. Later when she was recuperating, she is said to have died in her parental house on 7.11.2009 i.e. nearly 1 year 4 months after the incident. Subsequently, on the complaint which was earlier registered for offences punishable under Sections 498A, 307 read with Section 34 of IPC and also for offences punishable under Sections 3 and 4 of Dowry Prohibition Act, investigation was commenced by P.W.16 and concluded by P.W.19 and charge sheet was filed for aforesaid offences and the matter went to trial.
In the proceedings in all 22 witnesses are examined in support of the case of the prosecution. Out of that P.Ws.1 to 12 are the relatives, neighbours and friends of the victim and P.Ws.13 to 22 are the official witnesses. It is seen that P.Ws.1 to 12 have turned hostile inasmuch as they have not supported the statement which was given by each one of them before the investigating officer. So far as the evidence, which is adduced through the official witnesses from P.Ws.13 to 22, they have stood by the statements which they have given to the police thereby indicating that death of Leelavathi took place due to burn injuries in an incident which took place on 16.7.2008 in her matrimonial house. However, the Court below while assessing the evidence of P.Ws.1 to 22 with reference to the documents which are produced and marked as Exs.P1 to P27 has come to the conclusion that the prosecution has miserably failed to establish that death of Leelavathi is a homicidal death caused by accused Nos.1 to 3 and consequently, by judgment and order of acquittal dated 28.6.2013 has acquitted the accused of the accusations made against them. Being aggrieved by the same, the prosecution has come up in this appeal.
4. It is contended by the learned HCGP that serious error is committed by the Sessions Court in not properly appreciating Ex.P1-complaint supported by Ex.P2-Panchanama as well as Exs.P23 to 27 which are the statement given by victim herself when she was under treatment in the hospital which is corroborated by the evidence of P.W.13-Dr.Shivamadhu who issued Ex.P20 with reference to the health and mental condition of the victim in she being able to give statement regarding the cause of incident on 16.7.2008. It is further contended that there is an error in not appreciating the statement which is recorded before the Tahsildar-P.W.21 vide Ex.P23 on 10.11.2008 and also the statement given to P.W.21 in the presence of P.W.13, the doctor who was treating at the relevant point of time.
5. Further there is failure on the part of the prosecution in not examining the Psychiatrist-Prof.
Subbegowda who counseled and treated the victim on 20.10.2008 wherein he has recorded that he was informed by the victim regarding she being subjected to dowry harassment. The grievance of the prosecution is that the evidence of aforesaid Prof. Subbegowda is deliberately left out which was crucial for the prosecution and thereafter the entire matter is pushed under carpet in trying to demonstrate as if the death of the victim is on account of suicide and not a homicidal death.
6. In any event, after going through the entire material on record, this Court finds that this lacuna requires to be addressed. He is one witness whose testimony should be vital and essential to the unfolding of the prosecution case. We are also of the view that this part of evidence would lend support and strength to the very core or substratum of prosecution case. The Court below has proceeded to acquit the accused on the ground that medical records does not indicate that deceased had made any allegations against the accused that they doused the victim in kerosene and set her ablaze.
7. In this background, evidence of psychiatrist – Prof. Subbegowda who counseled and treated the victim on 20.10.2008 would be very much essential. If the dying declaration is not free from infirmities, then corroboration from other sources should be insisted upon and hence, we are of the view that this matter requires reconsideration and remand is inevitable. We are also of the view that this material evidence would enable the Court to arrive at the truth and may lead to inculpating or exculpating the accused. In that view of the matter, to do substantial justice, this matter requires to be remanded back to the Court below.
8. Accordingly, this appeal is allowed. The impugned judgment and order of acquittal dated 28.6.2013 passed in S.C.No.97/2009 by the Principal Sessions Judge at Mandya is set aside. The matter is remanded back for recording further evidence of Psychiatrist-Prof. Subbegowda who counseled and treated the victim on 20th and 21st October 2008 prior to the complaint being registered and thereafter this matter should be heard and disposed of afresh.
9. Since the matter is now remanded to the Sessions Court, respondents-accused Nos.1 to 3 shall appear before the Sessions Court on 20.11.2019 on which day this matter shall be taken up for further consideration after considering the application of the accused for fresh bail in the matter.
Sd/- JUDGE Sd/- JUDGE *alb/-