R 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.525 OF 2013 BETWEEN:
THE STATE OF KARNATAKA BY TALAGHATTAPURA POLICE STATION BENGALURU RURAL DISTRICT. ... APPELLANT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) AND:
1. NAGABHUSHAN SON OF MANJAPPA 2. SHANKARAMMA WIFE OF MANJAPPA 3. MANJAPPA SON OF NEELABHATYAPPA ALL ARE RESIDING AT RAMESHNAGAR SALUHUNASE DAKHALE UTTARAHALLI HOBLI BENGALURU SOUTH TALUK. ... RESPONDENTS (BY SRI. MUNIBYREGOWDA, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 31.12.2012 PASSED BY THE FAST TRACK COURT-III, BENGALURU RURAL DISTRICT, BENGALURU IN SESSIONS CASE NO.353 OF 2010 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A ACCUSED 302 READ WITH SECTION 34 OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed by the State challenging the judgment of acquittal passed in S.C.No.353 of 2010 dated 31.12.2012 on the file of Fast Track Court-III, Bengaluru Rural District, Bengaluru acquitting the accused persons for the offences punishable under Sections 498(A) and 302 read with Section 34 of Indian Penal Code.
2. Brief facts of the case:
It is the case of the prosecution that respondent No.1/accused No.1 married the deceased Rekha, daughter of P.Ws.3 and 4 nine years ago prior to the date of the incident i.e., 24.06.2010. At the time of marriage, they have given Rs.10,000/- along with other gold and silver articles to the deceased. The deceased Rekha was staying in her matrimonial house along with respondents after marriage. As on the date of the incident, she was staying separately along with accused No.1.
The respondents/accused Nos.1 to 3 started demanding additional dowry from the parents of the deceased Rekha. In that regard, mediation was also held and thereafter, they gave an amount of Rs.10,000/- and Rs.20,000/- on two occasions. Despite that, on 24.06.2010 at around 9.00 p.m., in the matrimonial home, the accused No.1 took up quarrel with his wife Rekha and at that time, he took kerosene and poured the same on her and lit the fire. Due to the burn injuries, the deceased succumbed to the injury in the Hospital on 29.06.2010 at around 6.00 a.m.
Based on the information, the police have went to the hospital, recorded the statement of the injured on 27.06.2010 in terms of Ex.P5. The police after investigation filed the charge sheet against accused Nos.1 to 3 for the offences punishable under Sections 498(A) and 302 read with Section 34 of Indian Penal Code. The accused No.1 was in judicial custody and accused Nos.2 and 3 were on bail. After securing the accused persons, charges were framed. However, they denied the charges leveled against them and claimed for trial.
3. The prosecution, in order to prove their case has examined P.Ws.1 to 14 and got marked the documents Exs.P1 to 10 and also M.Os.1 to 5. The 313 statement of the accused persons under Section 313 of the Code of Criminal Procedure was recorded. Further, accused No.1 examined himself as D.W.1 and examined a witness as D.W.2. He relied upon Exs.D1 to D6.
4. The Court below, after hearing the prosecution and also the learned counsel for the accused, acquitted the accused persons for the offences punishable under Sections 498 (A) and 302 read with Section 34 of Indian Penal Code. Hence the present appeal is filed by the State challenging the judgment of acquittal.
5. The State in the appeal would contend that though there were two dying declarations, the Court below did not consider the fact that under what circumstance Ex.P5 and Ex.D2, the dying declarations came into existence. There is no reason to disbelieve the statement recorded vide Ex.P5 wherein, a specific averment was made in addition to the cruelty meted to the victim as well as the dowry given at the time of her marriage. The alleged incident clearly and specifically established through the evidence of P.Ws.7 and 8 and in addition to the other corroborative witnesses. P.Ws.1, 2 and 11 are the impugned mahazar witnesses, who speak about the incident. P.Ws.3 and 4 being the father and mother of the deceased speak about the marriage talks and the dowry given at the time of marriage and subsequent demands made by the respondents. P.W.8 is the Doctor, who has given treatment to the deceased and was also present when P.W.10 recorded the dying declaration in terms of Ex.P5 which has not been considered by the Trial Court properly. The reasons assigned while acquitting the accused of their charges is erroneous. Without there being any basis, the Court relied upon Ex.D2 instead of Ex.P5 and failed to appreciate the evidence of P.W.5 and also the evidence of the Doctor, which supports the case of the prosecution.
6. The evidence of D.Ws.1 and 2 are not natural and it is only a defence set up and propounded by the respondents only to see that they get an acquittal order on the basis of these two witnesses. Therefore, the appreciation of evidence accepting the statement of D.Ws.1 and 2 has resulted in miscarriage of justice. Hence, prayed this Court to set aside the judgment of acquittal.
7. Learned High Court Government Pleader appearing for the State in her argument vehemently contends that the Court below has erroneously given more importance to Ex.D2 instead of Ex.P5 which has not been proved by examining the Doctor, who certified the said statement and in the absence of evidence of the Doctor, the same has been accepted. The Court below in spite of prosecution examining the Doctor, in whose presence Ex.P5 was recorded has not considered the same and failed to consider that the burn injuries are on the face and not on the lower part of the body, which clearly shows that it is not an accidental fire and it was a homicidal. If kerosene is poured, then the injuries could be on the face.
8. It is also the contention of learned High Court Government Pleader for the State that if it was an accidental fire caught when the kerosene was on the ground, first the clothes touching the ground will get burnt, thereby causing injuries to the lower part of the body, instead the burn injuries were on the face that too, major burn injuries were on the upper part of the body and the same has not been considered by the Trial Court. Merely because there are two dying declarations, the Court cannot ignore the same and the Court has to consider the intrinsic value of the dying declarations. Even in a case of multi dying declarations, the Court has to consider and evaluate the same, so as to find out the truth which inspires the confidence of the Court and the same has not been done in the case on hand.
9. In support of her contention, she also relies upon the judgment reported in 2018 (4) CRIMES 308 (SC) in the case of BHAGWAT -VS- STATE OF MAHARASHTRA wherein it is held that if there are three dying declarations, the Court has to take note of corroborative material and acceptable evidence and there can be no infirmity in conviction.
10. Per contra, learned counsel appearing for the accused in his argument vehemently contended that the dying declaration was made before the Police Constable when he visited the hospital at the first instance in terms of Ex.D2. The said Ex.D2 was suppressed by the prosecution. On the other hand, the second dying declaration i.e., Ex.P5 was recorded after two days of the incident. When there are two dying declarations, the first dying declaration has to be taken note of. The accused No.1 has also sustained injuries and in order to substantiate the same, he has produced Ex.D6 for having taken the treatment for burn injuries. The Court below has taken note of Ex.D2 and Ex.P5 and so also the injuries sustained by accused No.1 and after giving anxious consideration to both oral and documentary evidence, has rightly accepted the defence of the accused and extended the benefit of doubt in favour of the accused. Hence, this Court cannot find fault with the judgment of the Trial Court in appreciation of the evidence and there are no grounds to reverse the findings of the Trial Court.
11. Learned counsel for the accused in support of his arguments has relied upon the judgment reported in 2010 (2) SCC 85 in the case of SHARDA –VS- STATE OF RAJASTHAN wherein the Hon’ble Apex Court has taken note of the silence of complainants between occurrence and recording of subsequent dying declaration indicating that they also believed it to be accidental occurrence and having taken note of the same has come to the conclusion that the dying declaration does not inspire the confidence of the Court. The counsel would also contend that, Para Nos.9 and 21 of the judgment and so also the reasoning assigned in Para No.27 of the judgment are aptly applicable to the case on hand.
12. The counsel has also relied upon the judgment reported in 1974 (4) SCC 264 in the case of RASHEED BEG AND OTHERS –VS- STATE OF MADHYA PRADESH wherein the Hon’ble Apex Court has observed with regard to possibility of tutoring which cannot be ruled out and has brought to our notice Para Nos.7 to 9 of the judgment.
13. The counsel further relies upon the unreported judgment of this Court passed in Criminal Appeal No.340 of 2012 disposed off on 01.09.2015. The counsel relying upon Para No.9 of this judgment would contend that it is a case of two dying declarations wherein the Court has come to the conclusion that the versions found in both dying declarations are contrary to each other and therefore, the Court cannot prefer one dying declaration and reject the other in the absence of relevant material on record. He also contends that in the case on hand, the Court below has taken note of two dying declarations which are contrary to each other and the evidence of the prosecution does not inspire the confidence of the Court to come to the conclusion that accused No.1 has set the fire, by pouring kerosene. Hence, the judgment of the Trial Court cannot be set aside and reversed.
14. Having heard the arguments of learned counsel for the appellant-State and also the counsel appearing for the respondent-accused and on appreciation of material available on record, the points that arise for our consideration are:
(i) Whether the Court below has committed an error in acquitting accused Nos.1 to 3 for the charges leveled against them for the offences punishable under Sections 498(A) and 302 read with Section 34 of Indian Penal Code and it requires interference of this Court?
(ii) What order?
Point Nos.1 and 2:
15. The nut shell of the case of the prosecution is that, accused Nos.1 to 3 have subjected the deceased for mental cruelty demanding additional dowry from the parents of the deceased and accused No.1 picking up a quarrel with the deceased poured kerosene on her and set the fire, as a result of which, she sustained burn injuries and consequently lost her breath.
16. The prosecution, in order to prove their case has examined P.Ws.1 to 14. P.W.1 is the mahazar witness, who is also the son-in-law of P.Ws.3 and 4. P.W.2 is the inquest mahazar witness supporting the case of prosecution. P.Ws.3 and 4 are the parents of the deceased. P.W.5 is the witness, who has deposed with regard to payment of dowry amount. P.W.6 is the neighboring witness, who rushed to the spot after hearing the screaming sound of accused No.1 who has turned hostile and cross-examined by Public Prosecutor. P.W.7 is the Doctor, who conducted post mortem examination on the dead body of the deceased. P.W.8 is also a Doctor, who has certified that the victim was in a fit condition to make the statement. P.W.9 is the Police Constable, who took the seized articles to FSL. P.W.10 is the Head Constable, who recorded the statement of the victim in terms of Ex.P5. P.W.11 is the neighboring witness, who visited the hospital after coming to know that the victim has suffered burn injuries. P.W.12 is the Police Inspector, who recorded the statement of witnesses immediately after the incident. P.W.13 is the Investigating Officer, in whose presence Ex.P5 was recorded and conducted subsequent investigation. P.W.14 is a Scientific Expert, who gave the report in terms of Ex.P10 stating that the seized articles contains kerosene.
17. Before considering both oral and documentary evidence, we would like to make it clear that though an allegation is made that prior to marriage and after the marriage, there was a demand for dowry, the prosecution did not invoke penal proviso of Sections 3 and 4 of Dowry Prohibition Act, 1961. However, certain witnesses i.e., P.Ws.3 to 5 have spoken with regard to payment of additional dowry. But, in the cross examination of P.Ws.3 and 4, it is suggested that they have not given the amount of Rs.10,000/- at the time of marriage and also additional dowry of Rs.10,000/- and 20,000/- subsequent to the marriage, the same was denied. The prosecution also did not examine any of the witnesses that in the presence of witnesses P.Ws.3 and 4, dowry was given. It is elicited in the cross examination of P.W.4 that one month prior to the incident, his third daughter, who married recently had visited the house of the deceased and accused No.1 and deceased took her to hospital. It is also important to note that, though P.W.5 states that an amount of Rs.10,000/- and Rs.20,000/- was given, in the cross examination, he categorically admits that, both the husband and wife were cordial and further admits that, in his presence, the amount was not given. Hence, this Court cannot consider the evidence of the prosecution with regard to payment of dowry prior to the marriage and also subsequent to the marriage and there are no charges against the accused for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act.
18. Regarding harassment is concerned under Section 498(A) of Indian Penal Code, none of the witnesses have spoken with regard to any panchayaths held and subjecting the deceased for cruelty. No doubt, though P.Ws.4 and 5 state that panchayath was held, none of the panchayathdars have been examined before the Court. P.W.3 categorically admits that both the daughter, her husband and children were living separately and accused Nos.2 and 3 were living separately. P.W.4 also in the cross examination has not spoken anything about conducting of any panchayaths. Hence, we do not find any reason to come to the conclusion that the deceased was subjected to cruelty within the purview of Section 498(A) of Indian Penal Code.
19. Now the question which arises before this Court for re-appreciation of evidence is with regard to invoking of Section 302 of Indian Penal Code. Admittedly, in the case on hand, there are two dying declarations. Though the prosecution did not rely upon the first dying declaration which is marked as Ex.D2, the same was confronted to the witness P.W.12 and so also P.W.13, who admits that Ex.D2 was the statement that was given by the victim.
20. The prosecution mainly relies upon Ex.P5 stating that the accused himself has poured the kerosene and set the fire on the deceased. First dying declaration which is marked as Ex.D2 discloses that it was an accidental fire and however, the dying declaration which is at Ex.P5 discloses the fact that accused poured the kerosene on her and set the fire. Hence, this Court keeping in view the contentions urged by learned counsel for both the parties has to re-appreciate the material available on record.
21. In order to re-appreciate the material available on record with regard to dying declarations are concerned, the evidence of P.Ws.3 and 4 are discussed for the limited purpose who state that when the oral declaration was made by the victim herself, they came to know about the fact that accused himself poured the kerosene on their daughter and set the fire. The other witness is P.W.7, who is the neighboring witness, did not support the case of the prosecution. She was treated as hostile and subjected to cross examination by Public Prosecutor. In the cross examination, it is suggested that accused persons were subjecting her to cruelty and the same was denied. However, she admits that on 24.06.2010 in the night, the accused No.1 screamed loudly. It is suggested that the victim herself told that her husband himself set the fire and the same was denied. However, she admits that herself, her husband and one Narasimhamurthy have extinguished the fire. She claims herself and her husband shifted the victim to Victoria Hospital. In the cross examination of P.W.6, the defence theory is accepted by the witness admitting that accused No.1 had also sustained injury to his hand and further admits that the victim gave the statement before the Police that it was an accidental fire.
22. It is to be noted that, it is not the case of P.W.6 that in her presence, Ex.D2 was recorded. Hence, the evidence of P.W.6 that the victim gave the statement in terms of Ex.D2 cannot be accepted. But, the fact that she went to spot immediately on coming to know about the incident after hearing the screaming sound of accused No.1 is not in dispute even according to the case of the prosecution, the presence of this witness along with others is elicited in the cross examination of D.W.1.
23. The other witness is P.W.8, the Doctor, who recorded the dying declaration of the victim in terms of Ex.P5. It is her evidence that Police Sub-Inspector came and enquired about the fit condition of the victim to make the statement and she examined her capacity to make the statement and thereafter, statement was recorded at 1.30 p.m. in terms of Ex.P5. P.W.8 also reiterates the contents of Ex.P5 and states that recording was over by 2.55 p.m.
In the cross examination, she admits that the victim has suffered 89% burn injuries. It is elicited that she was in a sleeping position while giving statement. It is elicited that, at the time of recording the statement, two police, herself and victim were present. It is elicited in her evidence that, after coming to know about their parents arrival to the hospital, she got the courage to make the statement.
P.W.8 states that she does not know whether her parents were there in the hospital, prior to her visit. It is suggested that, she has signed Ex.P5 in her office and the same was denied. It is elicited that, if kerosene is poured on the person, there are chances of it spreading to the head but there is no burn injuries on the head. But she claims that face, chest, both the limbs and on her back, there were burn injuries. It is suggested that the victim did not make any statement that accused No.1 poured the kerosene and set the fire and the same was denied. It is also elicited that the history at the first instance was mentioned as accidental fire.
24. This Court has to take note of the evidence of P.W.10 since, the contents of Ex.P5 are in the hand writing of P.W.10. P.W.10 states that he wrote Ex.P5 as per the instructions of P.W.13. In the cross examination, it is suggested that, he did not write Ex.P5 and the same was written in the police station and the same was denied. The other witness is P.W.13. In his evidence, he states that on 27.06.2010, he went to Victoria Hospital and recorded the statement of victim in terms of Ex.P5 and he attested the same. He reiterates the contents of Ex.P5 in his evidence and also states that he conducted spot mahazar and seized the articles which were at the spot in terms of Ex.P1 and also collected the death memo. In the cross examination, he admits that he came to know about the burn injuries on 25th itself and thereafter, he has sent the staff and recorded the statement of victim in terms of Ex.D2. He did not furnish the records in C.Misc.No.230 of 2010 to the Investigating Officer. It is elicited that in terms of Ex.D2, it is mentioned that it was an accidental burn injuries. It is also elicited that the statement of the victim is not in question and answer format. It is elicited that the mahazar witnesses are not the residents of Rameshnagar and they are the residents of Chickmagaluru. It is suggested that mahazar was drawn in the police station and the same was denied. The other witness is P.W.14, Scientific Expert, who gave the report in terms of Ex.P7. It is suggested that in M.O.5, no black mark and the same is admitted. The other material witness is D.W.1, who is accused No.1.
25. DW.1-Accused No.1 in his evidence has deposed that on the date of the incident at about 9.00 p.m., there was no power supply. At that time, his wife went to kitchen to prepare the food and found that the gas was empty and she told him that she would use the kerosene stove and prepare the food. She was preparing the food with the help of candle light and the same was also almost exhausted and while litting the other candle, the same had fallen on the ground where the kerosene was spread while pouring the kerosene to the stove. As a result, she caught with fire and she screamed at the spot. Immediately, he rushed to the spot. While extinguishing the fire, he has also sustained burn injuries to his right hand. Thereafter, he immediately called ambulance and shifted his wife to Victoria Hospital. Thereafter, Police had come and enquired his wife. She revealed that fire was caught accidentally. As a result, she sustained burn injuries. The statement recorded by the Police is at Ex.D.2. The parents of his wife demanded him to execute the documents in their favour. He refused to execute the same and told that he intends to execute the documents in favour of the children and hence, a false complaint is given against him. It is also his evidence that he took treatment in the Jail in terms of Ex.D.6. It is also his evidence that earlier he had paid the amount to his wife through money order in terms of Ex.D.4. He was subjected to cross- examination by the learned Public Prosecutor. In the cross- examination, he admits about the accommodation available in his house i.e., kitchen, hall and one room. The distance between his house and his parents house is about 10 feet. He was not having the gas connection but he obtained one cylinder from the supplier unauthorizedly. It is elicited in the cross-examination that when his wife was putting kerosene to the stove, he was in the hall. He did not witness the same and also he does not know anything of the kerosene spreading while putting the kerosene. It is suggested that he only poured the kerosene on her wife and set the fire and thereafter he went and sat in the room along with the children and the same was denied. It is elicited that when he screamed, his neighborers Kamalakka, Murthy and Shivanna came to the spot. It is suggested that they came and extinguished the fire by using bed sheet, but he claims that they came and assisted him to extinguish the fire. It is suggested that he only gave the history to the Doctor that it was an accidental fire and the same was denied. It is suggested that he threatened his wife that if she speaks the truth, he would kill all the three children and the same was denied. He says that his parents have told that they would write the will in favour of the grand children. He admits that Ex.D.4 was of the year 2006 for having sent the money order.
26. He also examined another witness DW.2, the neighborer and in his evidence, he says that he came to the incident place and went along with other three persons and extinguished the fire and thereafter, the victim was taken to the hospital. The accused had also sustained burn injuries to his hands. The Police came and recorded the statement of the victim. At that time, accused No.1 was not there. In the cross-examination, it is elicited that accused No.1 came out from the house and screamed. At that time, he went to his house and other witnesses had also come to the spot when accused No.1 screamed.
27. Having considered the oral and documentary evidence available on record, this Court has to consider whether it is an accidental fire or accused No.1 himself has poured the kerosene and set the fire. The principles laid down in the judgment referred supra by the learned counsel appearing for the State as well as the defence counsel, it is clear that when there are multiple dying declarations, the Court has to analyze the evidence available on record with due care and caution and intrinsic worth of the dying declaration has to be considered.
28. We also like to refer to the judgment of the Apex Court in the case of STATE OF KARNATAKA VS. SUVARNAMMA AND ANOTHER reported in (2015) 1 SCC (Cri) 663. The Apex Court in this judgment with regard to Section 32(1) of the Indian Evidence Act, 1872 has held that when there are multiple dying declarations recorded by the Magistrate as well as by the Police Officer, if dying declaration recorded by Police Officer found consistent with the circumstances on record while dying declaration recorded by Magistrate is not consistent, the dying declaration recorded by Police Officer can be relied on. We would like to refer to para Nos.7 and 15 of the judgment of the Apex Court in this regard. Para Nos.7 and 15 reads thus:
“7. The learned counsel for the State vehemently submitted that the view taken by the High Court is perverse. Mere defects in the investigation could not be the basis for acquitting the accused, if sufficient evidence to prove the prosecution case was available on record. Minor discrepancies about details of demand of dowry were not enough to discredit the overwhelming evidence that the deceased was harassed for dowry soon before her death. A pragmatic approach was required to be adopted by the Court in dealing with cases of death of a young bride to advance the policy of law. Though, the burden of proof is on the prosecution, the facts exclusively in the knowledge of the accused had to be disclosed by the accused. A false plea is to be taken as an additional circumstance against the accused. Oral dying declaration consistently made by the deceased before her brothers, sisters, mother and brother-in-law also corroborated by the dying declaration (Ext.P-10) recorded by PW 26, the Police Officer after due certification by PW 19, Dr. Rajeshwari Devi, could not be thrown out only on the plea of the defence that the dying declaration (Ext.D- 7) made by the deceased before PW 22, Executive Magistrate, in the presence of PW 19, Dr.Rajeshwari Devi was not produced. The evidence on record has to be appreciated in its entirety. It was submitted that the approach adopted by the High Court was clearly erroneous. If two dying declarations are recorded, the Court has to find out as to which one was genuine and truthful.
15. What is surprising and wholly unacceptable is the stand of the accused who were husband and mother-in-law of the deceased, living in the same house and that they had no idea that the deceased received burn injuries. This stand is clearly incompatible with the stand in Ext.D-7 that the accused mother-in-law of the deceased was very much present in the house and she shifted the deceased to the hospital. Even if the dying declaration (Ext. D-7) was recorded, the fact remains that when it was recorded, even according to the said dying declaration, the deceased was accompanied by her mother-in-law who is one of the accused. The deceased could not have made any voluntary and independent dying declaration in such circumstances as the influence of the accused could not be ruled out. According to the said dying declaration, she raised hue and cry when she received burn injuries which attracted her mother-in- law and the tenant, while according to the mother- in-law as well as the tenant they never heard such cries. There is no evidence of struggle of cries and the burn injuries are to the extent of 95%. In the case of an accident, the deceased would have tried to run away or escape. In these circumstances, there is hardly any possibility of accidental burn injuries. Extensive burns and other circumstances support the version of unnatural death. In these circumstances, the dying declaration (Ext.P-10) is consistent with the circumstances on record while Ext. D-7 is not.”
29. We also like to refer to the judgment reported in ILR 2005 KAR 521 in the case of PRAKASHA VS. THE STATE OF KARNATAKA with regard to para Nos.15 and 24 which reads as hereunder:
“15. Apart from the oral evidence of PWs 16 and 17 and the dying declaration of the deceased stated to have been made before PWs 2 and 9, there is a very strong circumstances against the appellant which shows that it is a homicidal death. The Doctor PW-7 Ramesh Pai, Surgeon, Wenlock hospital who conducted the post mortem examination, found smell of kerosene emanating from the body of the deceased. If, as put forth by the appellant, accidental fire that erupted from the stove, had set Smt. Veena on fire, it is not possible that the body would smell of kerosene even after three days. The incident took place on 27.10.96, whereas the death occurred on 30.10.96 and the post mortem was conducted then. If it was an accidental fire, it is highly impossible that the body would smell of kerosene. The learned Counsel for the appellant made a feeble attempt to explain it saying that in his attempt to extinguish the fire, the appellant might have rolled Smt. Veena on the ground in the result the Kerosene which had fallen on the ground due to toppling of Kerosene can might have percolated her body. This theory is also not possible since if kerosene had fallen on the ground, that would have caught fire and it is not likely that the appellant, in his attempt to extinguish fire on the body of Smt. Veena would roll her on such fire. Besides, in his written statement submitted under Section 313 of the Cr.P.C, nowhere the appellant mentions any such attempt. The smell of kerosene emanating from the body of the deceased is a clear indication that the fire was set only after kerosene was poured on her body.
24. High Courts and the Supreme Court have, on many occasions, called for vigilance in bride burning cases and have stresses the need for immediate verification by investigation officers about the circumstances leading to a woman suffering burn injuries within a few years of her marriage. Experience has shown that in many bride burning cases, despite the agony suffered by them, injured house wives tend to defend their husbands and in some cases are afraid of telling the truth in the presence of the husband or of his close relatives. It the investigating officer, immediately after he takes steps to get medical attention to the injured person, goes to the spot and conducts a panchanama at the place of incident showing materials found at the place, particularly with regard to the incident, that not only furnishes a valuable evidence for the prosecution, but brings out the truth. That will be useful to the accused also, since the facts existing and found at the time of panchanama may rule out the possibility of foul play, if he is innocent. It is desirable that along with panchanama, photographs of the scene of offences from all angles are also taken. In a case of a housewife sustaining burn injuries by eruption of a flame from a stove, the existence of the stove, its conditions, scattered articles, burn marks, nature of injuries found on the injured person, nature of injuries suffered by the person, who claims to have attempted to extinguish fire all will be relevant to find out the truth. The Home Department of the Karnataka Government is, therefore, directed to frame suitable guidelines in this regard in rules governing the procedure for investigation of bride burning cases.”
30. Keeping in view the principles laid down in the judgments referred supra, this Court has to examine regarding the validity of both Ex.D.2 and Ex.P.5. In terms of Ex.D.2, it is also admitted by the Investigating Officer that the statement was given by the victim. In terms of Ex.D.2, it is an accidental fire and in terms of Ex.P.5, the victim says that accused poured the kerosene and set the fire. We would like to mention the contents of Ex.D.2. In Ex.D.2, at the first instance statement was given by the victim stating that when she was preparing food, the candle was in an exhausting condition and there was no other candle. While pouring the kerosene from the kerosene can to the bottle, accidentally the same had fallen on the cloth placed on the ground and when she tried to remove the cloth from that place, the candle fell on the ground. As a result, her cloth caught with the fire and hence, she sustained the burn injuries. When she screamed, her husband came and extinguished the fire and immediately she was shifted to the hospital. She has also stated that her husband and children are not responsible for the incident.
31. On perusal of Ex.P.5, it is the statement made before the Investigating Officer-P.W.13 and the same was written by P.W.10 Kodanda Ramaiah in the presence of the Doctor P.W.8. She says that she is having three children aged about 6 years, 4 years and 1 year 9 months respectively. The husband was not taking care of them. On the date of the incident i.e., on 24.06.2010, he was in the house in connection with Court work. At the instigation of accused Nos.2 and 3, he was scolding her. After coming from the house of his parents, her husband started galata stating that she used to make other ladies to sit in the house and spend time with them and assaulted her. Thereafter, he went to haircut and after coming back, he took bath and at around 9.00 p.m., he again started abusing her and when she questioned him, he took out the kerosene bottle which was kept by the side of the gas cylinder and poured on her and threatened that if she retorts, he would lit the fire and when she replied to lit the fire, immediately he took out the match stick which was kept by the side of the photo of the God, lit the fire. As a result, she sustained burn injuries to her body. At that time, he immediately rushed to the room and sat along with the children in the room. When she was crying, he went outside the house and told that she only poured the kerosene and set the fire. At that time, the neighborers by name Shivanna, Kamalakka, Murthy came and with the help of bed sheet extinguished the fire. Her mother-in-law also came and abused her and in the meanwhile some one has called the ambulance and in the said ambulance, she was shifted to the Victoria hospital. It is also stated in her statement that the earlier statement was given at the instance of her husband since he threatened her that he would kill the children, if she tells the truth and after her parents’ arrival, by taking the courage she made such statement.
32. Keeping in view of these two dying declarations, this Court has to consider the evidence available on record particularly the evidence of P.W.8. P.W.8, the Doctor who treated the injured has deposed that she has sustained the burn injuries to her face, chest and back and to the upper limbs and also to the lower limbs except the foot. In the cross-examination, a suggestion was made that if kerosene is poured, it can come in contact with her head and it is elicited that no burn injuries were on her head, but it is her evidence that there are no chances of suffering the burn injuries to her face. It is elicited that she had suffered 89% of the burn injuries and it is also elicited that the earlier history of the patient was recorded as an accidental fire. It is to be noted that in the post mortem report, it is mentioned that she had suffered the injuries on the face, neck, chest and back and also to the upper limbs but the main injuries are to the upper parts of the body. Only patches can be seen on the lower limbs and there was no injury to the foot.
33. It is the evidence of the DW.1 – accused No.1 that while putting the kerosene to stove, accidentally the kerosene had fallen on the ground and also to her cloth. When the candle fell on the ground, the same had come in contact with her cloth and kerosene, if that is the case, there could have been injuries to her foot also no burn injuries on her foot. There are only certain patches on the lower limbs and the main burn injuries are on the face, chest and back and also to the upper part of the body and there is no explanation on the part of the accused. The Doctor who has been examined has also categorically stated that if kerosene is not poured, there are no chances of burn injuries on the face. The accused also did not dispute the fact that victim had sustained injuries to the face. It is also important to note that if the theory of the accused is accepted as deposed before the Court that the gas was empty and hence his wife was preparing the food in the kerosene stove using the kerosene and while pouring the kerosene, a little extent of kerosene was fallen on the ground and also on the cloth, if that is the case there must be a kerosene stove in the kitchen. It is important to note that the Police after recording the statement of victim went to the house and conducted mahazar in terms of Ex.P.1 spot mahazar and the Police have not noticed any stove at the spot. If really the fire had caught accidentally, when the kerosene was spread on her cloth while putting the kerosene to the stove, there must be a stove in that spot but there is no such stove at the spot and the same was also not seized. The seized articles are half burnt clothes of the victim and also the kerosene bottle and match stick. The FSL report corroborates that except match stick other Mos.1 to 4 contains kerosene and having taken note of the mahazar at Ex.P.1. It is disputed that the same was not held in the house of the victim and the same was prepared at the police station and the same has been denied by the witness. No doubt the witness of Ex.P.1 is the brother-in- law of the victim but that does not mean that Ex.P.1 contents cannot be considered. If really the stove was used for preparing the food, the stove should be in that spot. It is also important to note that on perusal of Ex.D.2, the first statement made before the police constable, no where the victim has stated that while pouring the kerosene to the stove, a little extent of kerosene was fallen on the ground but her case is that she was putting kerosene to the bottle from the can and accidentally the kerosene was fallen on the ground but there is no statement with regard to preparing the food in the kerosene stove and also there was a stove. The can was also not seized when the mahazar was drawn. Hence, the theory that the victim was putting kerosene to the bottle from the can also cannot be accepted and so also there was no can at the spot. Hence, it is clear that the theory was set up by accused No.1 and false defense was taken in the evidence and also set-up DW.2. He is not the person who came to the spot at the time of the incident. The accused No.1 also not stated anything about the presence of DW.2 in his evidence but only in the cross-examination he says that P.W.6 Kamalakka was present and her husband Murthy was present and another person by name Shivanna was present and not DW.2. Having taken note of the material available on record, the victim had given the statement when the accused No.1 threatened her, if she tells the truth, he would kill the children. Ex.P.5 is clear that she was having three children aged about 6 years, 4 years and 1 year 9 months respectively and taking note of the same and subsequently, arrival of her parents, she took the courage and made the statement before the Doctor in terms of Ex.P.5. The victim also explained why she made earlier statement in terms of Ex.D2.
34. Having considered all these materials of the case, it is a clear case of pouring kerosene and setting up of fire by the husband on the victim. The Court below failed to consider all these materials particularly the seized articles which were available at the spot. Ex.P.1 is clear that all these MOs.1 to 5 were seized at the spot but has not seized the can and also the stove. If really the theory of accused is accepted, there should have been can as well as kerosene stove at the spot. It is not the statement of the victim that she was cooking with kerosene stove and the same is introduced only by the accused while giving the evidence. It is her case that kerosene was fallen on the ground while putting kerosene to the bottle not to the stove. Hence, the Court has to take note of the intrinsic worth of the value of dying declaration at Ex.P.5. The dying declaration at Ex.P.5 is reliable and it inspires the confidence of the Court how the incident has taken place and merely a statement made at the first instance that too, at the instance of the accused, the credibility cannot be given to the said dying declaration at Ex.D2. When there was threat, the same cannot be relied upon. The Court below taking note that there are two dying declarations comes to a wrong conclusion that it does not inspires the confidence of the Court. The very approach of the Court below is erroneous and has failed to take note of the meticulous evidence available on record particularly, Ex.P.1-spot mahazar and also seizure of articles and also intrinsic worth of the dying declarations which were made before the Doctor. The evidence of the Doctor also corroborates that if it is an accidental fire there could not have been any injuries on the face and also no injuries to the foot. The Court below lost sight of evidence of DW2 accused who did not speak anything regarding arrival of neighbors when he came outside the house and screamed. The Court below has also not appreciated the evidence of the doctor who recorded the fit state of condition of the victim before recording the dying declaration by Tahsildar. The Court below also did not consider the nature of the injuries sustained by the victim. The findings of the lower Court that the evidence does not inspire the confidence of the Court is nothing but perversity by ignoring the evidence of the doctor, Tahsildar and particularly dying declaration of the victim and also the contents of Exhibit P5 and mainly focused on the Exhibit D2, which requires interference of the Court. Hence, it is a fit case to reverse the findings of the Trial Court.
35. In view of the discussions made above, we pass the following :-
ORDER (i) The appeal is allowed partly.
(ii) The judgment of acquittal in so far as accused No.1 is set aside. The accused No.1 is convicted for the offence punishable under Section 302 of I.P.C.
(iii) The accused is sentenced to undergo life imprisonment and to pay a fine of Rs.50,000/- and if he fails to pay the fine amount, he shall under go further imprisonment for a period of six months. The fine amount is payable to the children of the victim equally and the same has to be kept in Fixed Deposit in any nationalized bank, till they attain the age of majority since they are minors. On majority, to release the amount in favour of children equally, on proper identification.
(iii) The acquittal order passed against Accused Nos.2 and 3 is hereby confirmed.
Sd/- Sd/-
JUDGE JUDGE ST/PYR