IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.800 OF 2013 BETWEEN:
STATE OF KARNATAKA BY ANTI-DOWRY CELL OF COD BENGALURU. ... APPELLANT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II) AND:
JAFFER SADIQ @ MOHAMMED SADIQ SON OF MOHAMMED IBRAHIM AGED ABOUT 40 YEARS RESIDENT OF OKALIPURAM BENGALURU-560 021. ... RESPONDENT (BY SRI. HASHMATH PASHA, SR. COUNSEL FOR SRI. KALEEM SABIR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRARING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.11.2012 PASSED BY THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN SESSIONS CASE No.195 OF 1996 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 304B OF INDIAN PENAL CODE AND SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.08.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed by the State questioning the order of acquittal passed in Sessions Case No.195 of 1996 dated 16.11.2012 on the file of X Additional City Civil and Sessions Judge, Bengaluru (CCH 26) for the offences punishable under Sections 498-A, 304-B of Indian Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act.
2. Brief facts of the prosecution case are:
Deceased Reshma was married to accused No.1 on 28.4.1994 at Bengaluru and accused Nos.2 to 5 are related to accused No.1. At the time of marriage, the accused demanded and received dowry amount of Rs.75,000/- and 24 sovereign of gold ornaments and subsequently, after marriage, when deceased Reshma was residing with accused No.1 in his house at Okalipuram, Bengaluru, the brother of the deceased by name Ghouse Pasha provided all household articles to accused No.1 and in spite of that, accused No.1 started to threaten deceased Reshma by prevailing on her to bring some more money. It is further case of the prosecution that deceased Reshma brought Rs.30,000/- from her brother and paid it to accused No.1 and despite receiving said amount, accused No.1 continued to ill-treat his wife and due to untolerable mental and physical treatment, said Reshma, on 23.11.1994 at about 10.00 a.m., poured kerosene oil on her body and at that time, accused No.1 told her that she is simply threatening him and she will never die and saying so, he set fire to her body with the help of match stick. However, by seeing the fire and flames, accused No.1 took her to St.John Hospital and thereafter to Victoria Hospital, Bangalore and admitted for treatment. That on 29.12.1994 at about 6.15 p.m. she died due to burn injuries in the hospital. The Srirampura police went to Victoria hospital and recorded the statement of the deceased in the hospital on 24.12.1994 at 1.45 a.m. and returned to police station and registered the case against the accused and during investigation, the investigation was referred to Dowry Prohibition Cell, COD, Bengaluru and after investigation, they filed the charge sheet for the offences punishable under Sections 498-A, 304-B of Indian Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act.
The accused persons appeared before the trial Court and after hearing, the Court below framed the charges for the above offences. Accused did not plead guilty and claimed to be tried. The prosecution in order to prove its case has examined P.Ws.1 to 15 and got marked Exs.P1 to P32 and M.Os.1 to 5 and closed its side. The statements of all the accused under Section 313 of Cr.P.C. was recorded and accused persons did not choose to lead any evidence. After hearing the arguments, at the first instance, accused Nos.2 to 5 were acquitted and accused No.1 was convicted. Hence, accused No.1 preferred an appeal in Crl.Appeal No.640/1999 before this Court. This Court, in the appeal, held that fair opportunity was not given to the appellant and hence, set aside the judgment and conviction passed against him, however, did not interfere with the findings of trial Court as against accused Nos.2 to 5 since there was no appeal from the State against the order of acquittal against accused Nos.2 to 5 and the matter was remanded to the trial Court to give an opportunity to accused No.1 and to dispose of the matter on merits. The Court below, after giving an opportunity to accused No.1 to cross-examine all the prosecution witnesses and also to examine himself as D.W.1, has passed the judgment, acquitting accused No.1. Hence, the present appeal is filed by the State challenging the order of acquittal passed by the Court below.
3. In the appeal it is contended that the Court below has failed to appreciate the evidence adduced on behalf of the prosecution in the case. The inference drawn to record the acquittal against respondent is not in accordance with the evidence adduced for establishing the charges. The evidence of P.W.4 is cogent and sufficient to establish the charges. It is also made clear in the evidence that he never intended to give any dowry for the performance of marriage of his younger sister with the respondent. It is also the evidence of P.W.4, that aspect of payment of dowry for the performance of marriage of his sister with the respondent was between his mother and the respondent. He expressed his lack of knowledge in respect of the same. It is also specifically stated in the cross- examination that the dowry amount paid to the elders of the respondent is only in respect of the marriage of his sister with the respondent. It is also made clear in his evidence that there was no demand directly with him. The accused No.1 was residing with his wife. All these would suggest that there was persistent demand for more dowry from the parents of the victim. The trial Court has committed an error in disbelieving the evidence of the prosecution witnesses and hence it requires interference by this Court.
4. Learned State Public Prosecutor-II appearing for the appellant-State would contend that there are three statements of the deceased regarding the incident and even then the Court below has failed to take note of the same. The statement made by the deceased as per Ex.P2 is in the presence of Doctor who has been examined as P.W.2. The Court below ought to have given much importance to the dying declarations made by the deceased. The Court below has ignored the evidence of P.Ws.4 to 7 particularly regarding payment and acceptance of additional dowry and also subjecting the deceased for harassment and hence, the judgment of the trial Court requires to be set aside.
5. Per-contra, learned counsel appearing for the respondent-accused would contend that this Court remanded the matter to give an opportunity to the accused and the accused by engaging the counsel has cross-examined the prosecution witnesses. None of the evidence of the prosecution witnesses inspires confidence of the Court to convict accused No.1 and the document Ex.P2 cannot be relied upon. P.W.6 has admitted in the cross-examination that there was no demand and only customary payment was made. The accused also explained in his evidence as to how the incident has taken place by examining himself as D.W.1. The accused tried to extinguish the fire and he also sustained injuries. The conduct of the accused is also very much important and that he was very much present in the hospital till his arrest. Three different dying declarations and the attestation made by P.W.2, Doctor who has been examined is not the treated doctor and the very presence of P.W.2 is doubtful and hence, Ex.P2 cannot be believed. The Court below rightly appreciated both oral and documentary evidence available on record and hence, prayed this Court to dismiss the appeal.
6. Having heard the arguments of the learned State Public Prosecutor-II for the appellant-State and also the learned counsel appearing for the respondent-accused and also on re-appreciating the material available on record, the points that would arise for our considerations are:
(i) Whether the Court below has committed any error in acquitting accused No.1 for the charges leveled against him and whether it requires interference of this Court?
(ii) What order?
7. Points Nos.1 and 2:
The case of the prosecution in a nutshell is that, Marriage of the deceased was performed with accused No.1 and accused Nos.2 to 5 have negotiated the marriage and payment of dowry was settled for Rs.75,000/- and 24 sovereign of gold ornaments. Accused No.1 subsequently demanded dowry and received Rs.30,000/- from P.W.4 and even thereafter, he continued to harass the victim, as a result, death has taken place.
8. P.W.1 is the Tahsildar who conducted inquest over the dead body of the deceased in Victoria hospital in terms of Ex.P1 and he recorded the statement of relative witnesses.
9. P.W.2 is the Doctor, who attested the statement of deceased Reshma in terms of Ex.P2, when P.W.3 recorded the statement of the deceased.
10. P.W.3 is the head constable, who went to the hospital as per the instructions of the Station House Officer and recorded the statement of the injured Reshma in the presence of the Doctor, P.W.2 as per Ex.P.2.
11. P.Ws.4 and 5 are the elder brothers of deceased and both of them have deposed that their sister was married to accused No.1 on 28.04.1994. They gave Rs.75,000/- cash and 24 sovereigns of gold. The oral dying declaration was made before P.W.4.
12. P.Ws.6 and 7 have deposed regarding giving of dowry and also subjecting the deceased for cruelty. P.W.6 claims that oral dying declaration was made in the Victoria Hospital in his presence. P.W.7 speaks about giving dowry of Rs.75,000/- and he gave the money to P.W.4 to spend the money.
13. P.W.8 is the mahazar witness to Ex.P.4 with regard to seizure of burnt clothes, kerosene tin and match box.
14. P.W.9 is the Doctor, who conducted post mortem and issued post mortem report in terms of Ex.P.19. He has opined that the death was due to septicemia as a result of infection due to the burn injuries sustained.
15. P.W.10 is the person who translated marriage certificate Ex.P.21 from Urdu to Kannada.
16. P.W.11 is the Head Constable, who received message from Victoria Hospital to collect the death memo of the deceased and he went and collected the same which is marked as Ex.P.22.
17. P.W.12 is the Police Sub-Inspector, who was informed by the Victoria Hospital to collect the death memo and later on he informed the P.W.11, Head Constable, Srirampuram Police Station to collect the same.
18. P.W.13 is the Assistant Sub-Inspector at that time in the Police Station. He came to the Police Station at 2.40 a.m. and P.W.3 prodcued Ex.P.2 – statement of injured, upon which he registered the F.I.R. at the first instance for the offences punishable under Sections 498-A, 307 of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. The FIR is at Ex.P.23. He conducted the spot mahazar as per Ex.P.4 and recorded the statement of P.W.4 and 5 and thereafter registered the second FIR invoking Sections 498-A, 302 of Indian Penal Code and he sent requisition to the Taluka Executive Magistrate to conduct the Inquest.
19. P.W.14 is the Police Inspector, ADC, COD , who is the Investigating Officer. He took up further investigation and filed the charge sheet.
20. P.W.15 is the Assistant Director of FSL. He conducted the tests of articles and issued certificate in terms of Ex.P.29.
21. The accused also led his evidence by examining himself as D.W.1.
22. Now this Court has to re-appreciate the evidence available on record. The State has preferred the appeal challenging the judgment of acquittal and in the appeal, the prosecution mainly relies upon the evidence of P.Ws.4 to 7 with regard to demand of dowry prior to marriage and after the marriage and subjecting the deceased for harassment and so also the evidence of P.Ws.2 and 3 regarding dying declaration..
23. We would like to refer the evidence of P.W.1 and his evidence with regard to conducting of the inquest in terms of Ex.P.1. In Ex.P.1, the Taluka Executive Magistrate, who has been examined as P.W.1 has stated that he conducted the inquest and during the course of inquest, he recorded the statement of P.W.4, the brother of the deceased. He re-iterates that P.W.4 made the statement before him that they made the demand of Rs.75,000/- as dowry and thereafter also made additional payment of dowry. Hence, it is appropriate to consider the evidence of P.W.4 with regard to Sections 3 and 4 of the Dowry Prohibition Act.
24. P.W.4 in his evidence states that marriage negotiation had taken place in his house. Accused Nos.2 to 5 are the friends of his mother and they only brought the alliance. They demanded Rs.1,00,000/- and it was settled for Rs.75,000/- and 24 sovereigns of gold. Before the marriage, his mother passed away and hence the marriage was delayed. He gave Rs.75,000/- to accused No.1 in the house of accused No.5 and at that time, all the accused were present. Accused No.1 was cordial with his sister for three months and thereafter started harassing her. Accused No.1 had sent his sister beating and demanded money to carry on the leather business. They consoled her sister and gave Rs.30,000/- to accused No.1 for his business. He continued harassment to get a share in the property of his father. He came to know that his sister was admitted in the hospital and on enquiry, his sister revealed that accused No.1 was harassing her and he set fire to her body by pouring kerosene. He also identifies the signature of his sister as Ex.P.2(a). There were no receipts for having paid Rs.75,000/- and also for having paid Rs.30,000/-.
He admits in the cross examination that 20 sovereigns of gold was given to Reshma i.e., in the form of gold ornaments. He also admits that they did not give any complaint against the first accused when the accused beaten his sister nor took her to a Doctor. They also did not intimate any outsider about the harassment. On information, he went to Victoria Hospital and it was 6.00 p.m. She was conscious and in a position to talk. At that time, himself, his wife, P.W.5 and C.W.6 were present. The Doctor was also present. Then his sister did not say anything. At about 2.00 a.m. in the night his sister told that accused No.1 set fire to her by pouring kerosene. The police and doctor were also present. She told this fact in their presence and the same was recorded by the Police and signed by the Doctor as she was not in a fit condition to speak. The Police also recorded his statement in the Police Station. It is elicited that talks were between Ajamunnisa – accused No.5 and his mother. He further admits that from engagement till marriage, accused did not visit their house. He volunteers that payment was made to elders and not to the accused. The relationship between accused No.1 and him was good during the post marital period of Reshma when he used to visit his house. Accused No.1 also visits their house with Reshma normally on every Sunday. They had good relation. Likewise, his brothers also used to visit the house of accused No.1 and their relationship was good. He further admits that whenever accused No.1 was required to go outside the state, he used to leave Reshma in their house. He also admits that accused No.1 had not demanded money from him for marriage in the post marital period.
There was no talks between him and accused No.1 regarding money or its demand during four months period preceding Reshma’s death. Accused No.1 had told it was due to stove burst she has suffered injuries. He admits accused No.1 only took his sister to St. John’s Hospital and the Hospital was on the way. He had gone later on to St.John’s Hospital after receiving the information from accused No.1 maybe at around 2 or 3 p.m. She had sustained 83% burn injuries and the hospital was refusing to receive her for treatment and hence she was shifted to Victoria Hospital. The other relatives came to hospital at 6 p.m. and accused No.1 was also present at that time and police also enquired accused No.1. He might have sustained injuries and he was present till 11 p.m. He has not given any complaint to the Police against the accused when the police had come to the hospital.
It is elicited in the cross-examination that the accused had not asked him to pay Rs.30,000/- for leather business. It is further elicited that the accused had not asked any amount directly from him or he has paid directly to him. When he went to Victoria hospital, it was about 3.45 p.m. on 23.12.1994. The accused was present and his forearms were burnt and he was in hospital till 2.30 a.m. It is elicited that Reshma regained conscious at 2.30 a.m. and he was allowed to speak with Reshma in burns ward and lodged complaint afterwards.
25. P.W.5, the other brother of the deceased also reiterates the evidence of P.W.4 in his chief evidence. In the cross-examination, it is elicited that they did not complain to the police or to Anti-Dowry Cell when accused No.3 had asked for a particular type of dowry to be given to accused No.1. They also do not have any documents to show that they paid Rs.75,000/-. However, it is elicited that 24 sovereign of gold was given to his sister Reshma in the form of gold ornaments. P.W.5 states that they gave Rs.75,000/- to the hands of accused Nos.4 and 5. He himself, P.W.4 and C.W.8 were present at that time. They did not get any receipt. He used to visit the house of accused No.1 twice or thrice in a week. He visited the house of accused No.1 about 4 or 5 days prior to the death of his sister. The deceased was not complaining about accused No.1 when he visited their house. They also do not have any documents for having given Rs.30,000/- to the accused No.1. He came to know through accused No.5 about the admission of his sister in the hospital. They did not inform anybody about the demand of dowry or dowry harassment made by the accused and also they did not inform accused Nos.2 and 3 about the harassment made by accused No.1 to his sister. He had visited a day prior to the incident. The accused person had asked him about the money once. That was two months earlier to the incident. On enquiry, the accused told him that he required the money for business. He did not tell the nature of business. He did not tell accused No.5 about asking of the money by the accused. The accused and his sister were cordial. He found burn injuries on the forehands of the accused and he did not enquire about it. His sister was not in a position to speak when he went to St. Johns Hospital.
26. The other witnesses are P.Ws.6 and 7. P.W.6 states he participated in the marriage talks and it was settled to pay Rs.75,000/-. The deceased Reshma was telling that accused No.1 was asking for money. P.Ws.4, 5 and others joined together and gave Rs.30,000/- to the accused No.1. In the cross-examination, he admits that he himself and P.W.4 are good friends. He did not enter the house of accused No.5 when the amount of Rs.75,000/- was given to accused No.5. P.W.4 and others told him that they gave that amount in the hands of accused No.5. He was also present when Rs.30,000/- was paid and the same was given in the hands of the deceased in the house of P.W.4. P.W.4 called him to his house when he was to pay Rs.30,000/-. He did not enquire accused No.1 about his frequent demands for money and about the harassment shown to the deceased. He admits that he reached Victoria Hospital at about 2.30 p.m. The doctors and the first accused were present with Reshma. When he went to the hospital at 2.30 p.m., Reshma was in a condition to talk. He was there in the hospital till 1.00 a.m. At about 10.30 p.m., the police recorded the statement of Reshma. Reshma was conscious enough to speak. At 10.30 p.m. Srirampura Police came. At that time Reshma was in a position to speak. It is elicited that he was under the impression that Reshma was cordial and happy with the accused. P.W.4 told him that he was giving Rs.30,000/- to Reshma for the purpose of business. The amount was given to Reshma to be used by her husband and it was because P.W.4 had good love and affection towards his sister. The amount was given by her elder brother for her personal use.
27. P.W.7 in his evidence states that accused persons demanded dowry of Rs.1,00,000/- and it was settled for Rs.75,000/-. He also states that he gave Rs.40,000/- to P.W.4 at the time of marriage. P.W.4 also gave Rs.30,000/- to accused No.1. In the cross- examination, he admits that he does not have any documents for having given Rs.40,000/- to P.W.4. It is elicited that he was not present when an amount of Rs.75,000/- was paid to accused No.5. The accused was not present at the time of marriage talks. He does not know whether the accused had asked for any dowry.
28. Having considered the evidence of P.Ws.4 to 7, it is specific that the amount, according to the prosecution witnesses, was given to accused No.5. But P.W.5 claims that it was given to accused Nos.4 and 5. None of the witnesses, who have been examined, in the cross- examination have stated that the amount was demanded by the accused. P.W.4 in the cross-examination categorically admits that his mother held talks with accused Nos.2 to 5 for payment of the dowry. It is elicited in the cross-examination of the witnesses that an additional amount of Rs.30,000/- was given to his sister Reshma. Though in his chief evidence he claims that the amount was given to accused No.1 and in the cross- examination he categorically admits that amount was given to the deceased. It is also the evidence of prosecution witnesses that an amount of Rs.75,000/- was given to accused No.5 and accused did not make any demand. It is also important to note that in the cross- examination, it is elicited that they did not give any complaint when the accused was subjecting the deceased for harassment. It is elicited in the cross-examination that accused had also sustained burn injuries. With regard to the demand and acceptance of dowry, there is no direct evidence against the accused.
29. It is elicited in the cross-examination of P.W.5 – brother of the deceased, that both the accused and his sister were cordial. Whenever the accused was going outside, he used to bring his sister to his house. It is further elicited that when he went to the hospital, Reshma was not in a position to speak and it is also elicited that police came to hospital in the afternoon itself. But the statement of the deceased was recorded by P.W.3, that too in the presence of P.W.2 in terms of Ex.P.2. It is pertinent to note that P.W.13 categorically states that he visited the hospital even prior to the visit of P.W.3 and when he saw the injured at Victoria Hospital, she was not fit enough to give statement at 6 p.m. on 23.12.1994 he did not record the statement of the injured. It is further important to note that P.W.13 categorically states that he did not depute P.W.3 for the purpose of recording the statement of the injured. But P.W.3 claims that he was deputed to record the statement of the injured by P.W.13. P.W.13, in his evidence states that during his investigation between 23.12.1994 and 29.12.1994, whenever he visited the hospital, the injured was not in a position to give her statement. Hence, the credibility of the evidence of P.W.3 is doubtful.
30. The evidence of P.W.2 – doctor also does not inspire the confidence of the Court that he made an endorsement that Reshma was in a fit condition to give the statement. It appears that P.W.2 simply made an endorsement on Ex.P.2. It is also important to note that P.W.13 states that P.W.3 had not produced the complaint Ex.P.2 before him at 2.40 a.m. on 23.12.1994 he has not registered any such case. He also has not recorded the statement of the accused. It is pertinent to note that in the evidence of P.W.14, who conducted further investigation, though he states that he arrested accused Nos.2 to 4, in the cross-examination, he categorically admits that when he took the investigation of the case, till such time nowhere the names of accused Nos.2 to 5 were found in the record. He did not enquire the neighbours of accused No.1 to ascertain regarding cordiality. It is elicited that he has collected the accident register extract from Victoria Hospital and it is the part of the documents filed along with the final report in the case. He identifies Ex.P.32. He came across the name of Dr. Thrishula under Ex.P.32 and he found it was necessary to cite her as a witness nor examined her, because he had not submitted the charge- sheet. There is a case history as per Ex.P.32(a) in Ex.P.32. He has collected Ex.P.3 containing the history of admission of Reshma as per Ex.P.3(a).
31. Having taken note of the answer elicited from the mouth of P.W.14, this Court has to look into the statement of the deceased in terms of Ex.P.2. The version given in Ex.P.2 is that the accused only lit the fire by pouring kerosene on her telling that she is pretending that she will die. It is important to note that in Ex.P.3, the statement was recorded by the doctor at 1.45 a.m. and in the said statement, she says she herself poured kerosene but the accused lit the fire. It is also pertinent to note that Exs.P.30 to 32 are also the material documents. On perusal of Ex.P.30, it is clear that the informant is the deceased herself. At 3.45 p.m., while making the statement she says that her husband poured kerosene on her and lit fire at 10.00 a.m. on 23.12.1994 at his residence due to personal problems. The version of the deceased at 1.45 a.m. is different that she herself poured kerosene and the husband lit the fire. Ex.P.32 discloses that she gave the history that she went to prepare breakfast and she suffered burn injuries and she was taken to St. Johns Hospital.
32. Having considered Exs.P.2, 3, 30 and 32, it is pertinent to note that all are inconsistent. In one breath she says that accused only poured kerosene and set the fire. In another breath she says that she only poured the kerosene on herself and the accused lit the fire. She also says that she suffered the injuries on account of stove burst. It is pertinent to note that the doctor has given the certificate at 6.00 p.m. that the patient was not in a position to give correct picture or statement and the same is evident in terms of Ex.P.31. It is also important to note that the police have also visited the hospital immediately on the same day in the afternoon and the evidence of P.W.13 is clear that throughout she was not in a position to give the statement. Hence with regard to Ex.P.2, this Court cannot give more credence to the said document. The version of the deceased is contrary to each other.
33. We would like to refer to the recent judgment of the Hon’ble Apex Court in the case of STATE OF RAJASTHAN v. MST. GANWARA reported in 2019(3) AICLR 19 (SC) regarding multiple dying declarations, wherein paragraphs 10 and 11 of the said judgment, reads as follows:
“10. The intrinsic worth and reliability of dying declaration can generally be judged from its tenor and contents themselves. Here in the case on hand, the so called dying declarations recorded at the behest of the deceased create huge doubt on their veracity inasmuch as there was contradictory variance as to the facts of presence of the accused at the scene of offence at the time of incident, bringing the victim to the hospital and impact of the presence and provocation of relatives and advocate at the time of recording of statement of the deceased. It is also evident from the record that when PW14 made enquiries in the vicinity, no one supported the case of prosecution that the accused had put the deceased on fire. The I.O. (PW14) categorically deposed that during his enquiry, he found that at the time of incident, the accused was away from home as she went to Gopalji temple and it was the accused who first of all took the deceased to the hospital. It was also made clear by PW14, that he came to know from the neighbourhood that the deceased did not want to live at her matrimonial home and always wanted to live at her parental home. According to him, the deceased Shanti was well built woman with strong physique and the accused Ganwara was weak in comparison to the body structure of deceased Shanti. Most of the other prosecution witnesses are either relatives of the deceased or hearsay witnesses and investigating witnesses and none of them was present at the time of offence. In the light of foregoing, it can be said that the allegations levelled against the respondent in the dyingdeclarations have not been corroborated by the material witnesses.
11. Taking stock of the facts and circumstances of the case, in our view, the High Court has rightly felt that the dying declaration in the case on hand did not inspire confidence so as to award conviction to the accused. In this state of things, the Court has to give benefit of doubt to the accused as it is not safe to sustain the conviction as implicit reliance cannot be placed on the dying declaration under the peculiar circumstances of the case.”
34. Having considered both oral and documentary evidence available on record, the evidence of prosecution witnesses, particularly P.Ws.4 to 7 does not inspire the confidence of the Court regarding demand and acceptance of dowry. None of the witnesses say that amount was paid to accused No.1. Even after the marriage also it is elicited from P.Ws.4 and 5 that amount was given to the deceased and not to the accused. Though P.W.6 says that amount was given, he categorically admits that in his presence amount was not given to the accused. P.W.7, though he claims that he gave the amount to P.W.4, no documents is placed for having paid to P.W.4. Hence, the Court below has rightly appreciated the material contradictions in the evidence of prosecution with regard to invoking Section 3 and 4 of Dowry Prohibition Act. The evidence of P.Ws.4 to 7 is inconsistent regarding demand and acceptance of dowry.
35. The prosecution relies upon the evidence of P.Ws.2, 3 and 13 with regard to the dying declaration made by the deceased. As far as the evidence of P.Ws.2 and 3 regarding recording the dying declaration in terms of Ex.P.2 is concerned, the same is doubtful. Though, P.W.3 claims that on the instructions of P.W.13, he went to hospital to record the statement of the victim, P.W.13 – Investigating Officer categorically states that he did not give any instructions to record the statement of the injured. It is pertinent to note that P.W.13 categorically deposed that throughout during the period of hospitalization, he could not record the statement of the injured. Hence, the very recording of the statement by P.W.3 is doubtful. It is pertinent to note that the doctor who treated the injured has given the certificate in terms of Ex.P.31 that she was not in a position to give statement. But it is surprising that P.W.2 doctor who has not treated the injured, makes an endorsement on Ex.P.2 that she was in a fit state of mind to give the statement. It is pertinent to note that P.W.3 claims that on instructions he went to the hospital and recorded the statement in the early morning at 1.45 a.m. and before that the evidence is clear that police have visited the hospital and the same is emerged in the evidence of P.Ws.4 and 5, who are the brothers of the deceased. Hence, the Court also cannot rely upon the multiple dying declarations, which are inconsistent to each other with regard to the incident is concerned.
36. D.W.1 – accused also by examining himself adduced the evidence that when he was about to leave the office, deceased requested him to take her to her parents house. He told that he will go and come back from office and thereafter he will leave her to her parents house. But immediately she went inside the house and screamed. When he went inside, he found that she was burning and he tried to extinguish the fire. The fact that the accused also had sustained injuries on his hands is not in dispute. The accused himself took the victim to the hospital is also not in dispute. He was also in the hospital till 2 a.m. i.e., during statement in terms of Ex.P.2. Hence, the Court below considered all these aspects while considering the material on record. Hence, we do not find any reason to come to other conclusion considering the multiple dying declarations. The Apex Court’s judgment referred supra also held that the Court has to take note of the intrinsic value of the dying declaration while considering the same. Dying declaration does not inspire the confidence of the Court to come to other conclusion. Hence, we do not find any reasons to reverse the finding and convict the accused. The Appellate Court merely forming a second opinion is not sufficient to reverse the findings. The Appellate Court can reverse the findings if the Lower Court ignored the material on record and if it amounts to perversity and causes miscarriage of justice. We do not find any such perversity and miscarriage of justice. The Court below has given its anxious consideration to the material on record. Hence we pass the following:
ORDER Appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE Bkp/MD