Bettaswamy Gowda vs State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of conviction dated 26.8.2011 passed by the Fast Track Court-I, Tumkur, in SC. No. 115/2009 is appealed against by the convicted accused No. 1.

All the five accused were tried for the offences punishable under Sections 498A and 302 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.

The trial Court acquitted accused Nos. 2 to 5 in respect of all the charges and convicted accused No. 1 for all the offences with which he was charged. He is sentenced to undergo imprisonment for life and to pay a fine of Rs. 25,000/- for the offence punishable under Section 302 of IPC. He is also sentenced to undergo imprisonment in respect of other offences for which he is convicted.

Case of the prosecution in brief is that deceased Shruthi is the wife of accused No. 1; they were related inter se even prior to the marriage; their marriage was performed on 2.7.2007; at the time of marriage, the deceased was studying in Degree Classes; even after the marriage, she did not discontinue her studies; the accused as well as the deceased are from Singonahalli Village in Kunigal Taluk; after the marriage, she continued to live at Singonahalli in her matrimonial house and was going to college at Kunigal; occasionally she used to visit her parents'' house at Singonahalli; for a period of one month after the marriage, accused No. 1 who was having fish business at Bangalore, took the deceased to Bangalore by taking a house on rent; thereafter accused No. 1 brought back Shruthi to Singonahalli Village (after one month) by winding up his house at Bangalore.

It is the further case of the prosecution that accused No. 1 and his brothers were torturing the deceased by pressurizing her to bring additional amount of dowry though they had taken sufficient amount of dowry at the time of marriage; accused No. 1 was pressurizing the deceased to get certain sums of money from her father to establish a Military Hotel (Bar and Restaurant); since the said demand was not met by the deceased, the harassment by accused No. 1 continued; with this factor in back ground, accused No. 1 came to Kunigal to go over to Singonahalli Village from Bangalore on 9.2.2009 in the afternoon and called the deceased over phone and told her that he is coming to Singonahalli and that she should also join him in Kunigal wherein she was studying in college; accordingly, the victim joined the company of accused No. 1 at Kunigal and thereafter both of them went in the car to Singonahalli Village; between 5.30 and 6.30 p.m., accused No. 1 poured kerosene on the victim and set her ablaze in her matrimonial house; immediately, the injured raised hue and cry; accused No. 1 and his relatives shifted the victim to Sapthagiri Hospital at Kunigal for treatment; the injured was again shifted to M.S. Ramaiah Hospital from Sapthagiri Hospital for higher treatment; from M.S. Ramaiah Hospital, the victim was shifted to Mangala Hospital at Yeshwanthapura, Bangalore and thereafter to St. John''s Hospital, Bangalore; once again the victim was shifted from St. John''s Hospital to Victoria Hospital, Bangalore.

The victim was ultimately admitted to Victoria Hospital on 10.2.2009 at 1.30 a.m. At the time of admission, the doctor (P.W. 21) who was doing her internship at Victoria Hospital admitted the victim to hospital and recorded the history as per Ex. P19. Immediately thereafter, the Head Constable (P.W. 23) attached to Victoria Hospital Police Station on getting information, went to Burns Ward and recorded the dying declaration as per Ex. P21 in the presence of Dr. Sathyanarayana. Subsequently, the Deputy Superintendent of Police (P.W. 25) recorded another dying declaration at Ex. P24 from 7.45 to 8.30 p.m. on 10.2.2009 in Victoria Hospital. On the said dying declaration at Ex. P24, one of the doctors has endorsed that the victim was in a fit condition to make statement.

Based on the dying declaration at Ex. P21, Crime No. 44/2009 came to be registered in Kunigal Police Station at 1.30 p.m. on 10.2.2009. The PSI of Kunigal Police Station (P.W. 26) received Ex. P1 and registered the crime. He prepared the FIR and sent the same to the jurisdictional Magistrate as per Ex. P25. Another Deputy Superintendent of Police (P.W. 27), namely, Rachappa completed the investigation and laid the charge sheet on 6.5.2009.

In order to prove its case, the prosecution in all has examined 27 witnesses and got marked 38 Exhibits and 8 Material Objects. On behalf of the defence, 13 documents are marked. As aforementioned, the trial Court on evaluation of the material on record, acquitted accused Nos. 2 to 5 and convicted accused No. 1 for the offences with which he was charged.

Sri Hasmath Pasha, learned advocate appearing on behalf of the appellant/convicted accused No. 1, submits that the case of the prosecution is mainly based on three documents at Ex. P19, P21 and P24; Ex. P21 and P24 are not supported by the evidence of the doctors, inasmuch as the doctors who have certified about the fitness of the victim to make statement are not examined before the Court in support of the said dying declarations; Ex. P19 cannot be said to be the dying declaration inasmuch as it is a history recorded by the doctor (P.W. 21); at the time of admission of the patient to Victoria Hospital, the father of the deceased alone was present and at that time, accused No. 1 was arrested by the police and consequently, P.W. 1 has given the history (not the victim) as found in Ex. P19; the evidence of the Head Constable-P.W. 23 who recorded Ex. P21 is unbelievable, inasmuch as there is nothing on record to show that he was deputed to record the said dying declaration; the material on record clearly goes to show that the victim has committed suicide because of the frustration and not because of the harassment of the accused; according to him, the victim was the college going girl and she might not be willing to marry during the relevant point of time; it is not in dispute that accused No. 1 was well off financially and therefore it is highly improbable that he could ask for dowry at the time of marriage and subsequent to the marriage. He draws the attention of the Court to the fact that the mother of accused No. 1, who was living in the very house wherein the incident has taken place, is not examined by the prosecution; the important witnesses such as neighbours though are examined during the course of investigation, are not brought before the Court for deposing; the prosecution has not come out with true facts before the Court, inasmuch as it has suppressed all the material factors which went against the prosecution; the medical records pertaining to Sapthagiri Hospital and St. John''s Hospital are fully suppressed by the prosecution; though the victim was treated in those hospitals and though the police talked with her in those hospitals, the material collected by the police in respect of the treatment given by those hospitals are not placed before the Court for consideration. On these among other grounds, he prays for setting aside the judgment of the Court below.

Per contra, Sri Venkatesh, learned Additional SPP appearing for the State argues in support of the judgment of the Court below.

P.Ws. 1 and 2 are the father and mother of the deceased respectively. They have deposed about the demand of dowry by accused No. 1 prior to the marriage and further demand subsequent to the marriage. They have also deposed about the harassment and cruelty by accused No. 1 against the deceased.

P.W. 3 is a relative of P.W. 1. He visited the spot on hearing the news. He has deposed about the oral dying declaration said to have been made by the deceased.

P.W. 4 is the witness for scene of offence panchanama at Ex. P2. He is also the witness for Ex. P3. He has deposed that victim herself poured kerosene and set herself on fire.

P.W. 5 is the witness for inquest panchanama at Ex. P4.

P.Ws. 6 and 7 who were supposed to depose about the pledging of certain gold ornaments by accused No. 1 as per Ex. P5. They have turned hostile.

P.Ws. 8 and 9 are the Police Constables who have participated in the investigation at different levels. P.W. 8 has deposed about the apprehension of accused No. 1 on 11.2.2009.

P.W. 10 is the elder sister of the deceased. She visited St. John''s Hospital, wherein the victim was admitted on 9.2.2009. She has deposed about the cruelty meted out by accused No. 1.

P.W. 11 is the relative of the deceased. His evidence is on par with the evidence of P.W. 10.

P.W. 12 is the doctor of Sapthagiri Hospital, Kunigal. He has admitted in the cross-examination about the admission of the deceased in the hospital and she was treated in the said hospital to certain extent.

P.W. 13 is the Photographer who took the photographs of the deceased. Photographs are at Ex. P6 and Ex. P10.

P.W. 14 is the friend and classmate of the deceased. She was studying in Government College, Kunigal along with the deceased. She has deposed that accused No. 1 informed her over phone that the victim is taken to hospital at Kunigal and she has been requested to come there.

P.W. 15 is the witness for seizure panchanama at Ex. P14 under which certain gold ornaments were seized from the house of accused No. 1. He has turned hostile.

P.W. 16 is the Village Accountant who issued khatha extract as per Ex. P15 relating to the house wherein the incident has taken place.

P.W. 17 is the Assistant Engineer who drew the sketch scene of offence at Ex. P16.

P.W. 18 is the Taluka Executive Magistrate who conducted inquest proceedings as per Ex. P4.

P.W. 19 is the Officer of Forensic Science Laboratory, who gave report to the effect that the articles sent for examination were having kerosene smell.

P.W. 20 is the doctor who conducted postmortem examination on 12.2.2009. P.M. report is at Ex. P18.

P.W. 21 is the doctor who after completion of MBBS was doing her internship in Victoria Hospital during the relevant time. She has recorded the history as per Ex. P19 while admitting the victim to Victoria Hospital. She has deposed that the victim was in fit condition to make statement. She recorded the history to the effect that the husband of the victim set her ablaze and consequently she has suffered burn injuries.

P.W. 22 is the neighbour of the deceased in the village. She has deposed about the marriage between accused No. 1 and the deceased. She has specified that after the marriage the deceased was not happy.

P.W. 23 is the Head Constable attached to Victoria Hospital Police Station during the relevant time. According to him, the Chief Medical Officer sent a memo to him as per Ex. P20 on 10.2.2009 and in turn, he went to Burns Ward at 1.15 a.m. on 10.2.2009 and consulted Dr. Sathyanarayana. He requested Dr. Sathyanarayana to examine the victim and find out as to whether the victim was in a fit condition to make statement. Thereafter he recorded dying declaration as per Ex. P21 in the presence of Dr. Sathyanarayana.

P.W. 24 is the Assistant Sub-Inspector of Police of Kunigal Police station. He also participated during the course of investigation by sending the information to the jurisdictional Court stating that the offence under Section 302 is added after the death of the deceased.

P.W. 25 is the Deputy Superintendent of Police who recorded the dying declaration as per Ex. P24 and he conducted a part of the investigation.

P.W. 26 is the Sub-Inspector of Police of Kunigal Police station. He registered Crime No. 44/2009 based on Ex. P21 and sent FIR to the jurisdictional Magistrate as per Ex. P25.

P.W. 27 is the Deputy Superintendent of Police of COD who completed the investigation and laid the charge sheet.

Having regard to the aforementioned facts, we are of the opinion that the case of the prosecution mainly rests on the three documents, namely, Ex. P19, P21 and P24 and the versions of concerned witnesses.

As aforementioned, the incident has taken place in between 5.30 and 6.30 p.m on 9.2.2009 in the matrimonial house of the deceased at Singonahalli Village. The deceased sustained burn injuries in the bed room of the house. Since the victim could not tolerate the pain as a result of burn injuries, she came out of the house raising hue and cry and thereafter neighbours arrived and thereafter accused No. 1 along with neighbours shifted the deceased to the hospital. Initially she was taken to Sapthagiri Hospital at Kunigal, wherein she was treated by Dr. Kumar (P.W. 12). Though in the examination-in-chief P.W. 12 did not depose about the treatment given by him to the deceased in Sapthagiri Hospital, in the cross-examination, he admits that the victim was admitted to the said hospital. He further admits that since the case on hand was a medico-legal case, he informed about the incident to Kunigal Police Station and immediately thereafter the police came to the hospital and enquired with the victim Shruthi. He further admits that the police had given him a requisition. (for making enquiries with the victim). He further admits that he has issued Ex. D9 and D10. They are the prescriptions and receipts of Sapthagiri Hospital. Ex. D9 and D10 would clearly reveal that the victim was admitted to Sapthagiri Hospital and she was treated to certain extent. She was also given four bottles of drips. In paragraph-8 of his cross-examination, he admitted that the victim was not in a position to speak at the time of treatment because of burn injuries.

P.W. 12 further admits in the cross-examination that at an earlier point of time, accused No. 1 along with the victim had been to his hospital as a patient. Ex. D11 and D12 marked through him would specify that the victim had told before P.W. 12 that she was not happy with the marital life and that she was not enjoying her marital life with accused No. 1.

From the evidence of P.W. 12 it is clear that the victim was initially admitted to Sapthagiri Hospital, Kunigal and she was treated in the said hospital. His evidence further discloses that since it is a medico-legal case, he sent intimation to the police and police in turn came to the hospital and enquired with the victim. The police had given a requisition to P.W. 12. All these factors and concerned materials are suppressed by the prosecution.

Thereafter, the victim was taken to M.S. Ramaiah Hospital and to Mangala Hospital and subsequently to St. John''s Hospital. From St. John''s Hospital the victim was shifted to Victoria Hospital. None of the hospital records relating to the aforementioned four hospitals are placed before the Court by the prosecution. Since the prosecution has failed to place the aforesaid records before the Court, we are not in a position to know exactly as to whether the victim was able to speak or not during relevant time. We are also not in a position to verify as to whether the statement of the victim earlier recorded was by the doctor or by the police. Even the history given either by the victim or by anybody else at the time of admission in those hospitals is also not forthcoming, inasmuch as no material produced before the Court.

The victim was stated to be admitted to Victoria Hospital on 10.2.2009 between 1.25 and 1.30 a.m. According to the prosecution, P.W. 21, the intern doctor has admitted the victim and recorded the history at Ex. P19 as spoken to by the victim at 1.30 a.m. Immediately, thereafter the Head Constable attached to Victoria Hospital Police Station (P.W. 23) came to Burns Ward and recorded the dying declaration of the victim as per Ex. P21 in the presence of Dr. Sathyanarayana. Subsequently, on 10.2.2009 at about 6.45 p.m. another dying declaration at Ex. P24 came to be recorded by the Deputy Superintendent of Police (P.W. 25).

We have perused the documents at Ex. P19 and Ex. P20. Ex. P20 is the memo of intimation given by the Victoria Hospital. Same is received by Kunigal Police Station on 10.2.2009. But, the time is not specified. However, according to P.W. 23-Head Constable attached to Victoria Hospital Police Station, he went to Burns Ward and recorded the statement of the victim as per Ex. P21 at 1.30 a.m. itself.

Before proceeding further, it is better to consider the material relating to Ex. P19. We have perused the document at Ex. P19. The doctor(P.W. 21) has made a note that the patient was alert, conscious, oriented and mentally fit to give statement. Thereafter history of the case is recorded as under:--

".... alleged homicidal thermal burns at 6 p.m. on 9.2.2009 at her residence Singonhalli, Kunigal.

Husband poured kerosene on her and lit fire after a quarrel over some issue.

First taken to Saptagiri nursing home, Kunigal, later to Ramaiah hospital. From there referred to St. John''s hospital and later referred here."

On the said history sheet, the doctor has taken the ''left toe impression'' of the victim and the doctor has certified that the above statement is true as per her knowledge. P.W. 21 in her deposition before the Court has fully supported Ex. P19 by deposing that she was present at the time of admission of the patient. Though prima facie the evidence of P.W. 21 appears to be acceptable, the same needs to be tested with all the attending facts and circumstances of the case. The very doctor (P.W. 21) has admitted in paragraph-3 of her deposition that she was informed by the father of the victim (P.W. 1) that prior to admitting the patient to Victoria Hospital, the victim was treated in Sapthagiri Nursing Home, Kunigal, M.S. Ramaiah Hospital, Mangala Hospital, Bangalore, St. John''s Hospital, Bangalore. Thus, it is clear that the aforementioned facts were informed by P.W. 1 to P.W. 21 who recorded the history as per Ex. P19. The history recorded by the doctor cannot be bifurcated into two pieces to make it believe that the first portion of the history is provided by the victim and second portion of the history is provided by P.W. 1 (father of the victim). More over, Ex. P19 cannot be equated to dying declaration. It is a history recorded by the doctor. History can be given by anybody including the victim. Admittedly, the father of the victim had accompanied the victim to Victoria Hospital at the time of her admission and by that time accused No. 1 was arrested.

It is relevant to note at this stage itself that P.W. 1 in his cross-examination has admitted that the statement of the victim was recorded by the police in the hospital and at the time of giving the said statement by the victim, number of his relatives including Shivaramaiah, Shanthamma, Madhu and Krishnamurthy were there. The doctor-P.W. 21 has opined that the victim has sustained 70% burns on her body. Front portion of her body including the face was fully burnt. P.W. 21 further admits that at the time of admission of the patient, she was working in Burns Ward and that she did not know as to whether the victim''s statement was recorded by the police or not. She has further admitted that Emergency Casualty Ward is in the Cellar portion, whereas the Burns Ward is in the first floor of the building. As is clear from the nurse''s note found in Ex. P19, the patient was shifted to Burns Ward from Emergency Casualty Ward on 10.2.2009 at 1.45 a.m., which means that the victim was in Casualty Ward upto 1.45 a.m. Thus, the alleged history recorded is in Casualty Ward. If really the doctor-P.W. 1 was working in Burns Ward, which is in different floor altogether, there was no occasion for her to write down the history as per Ex. P19 which must have been recorded in Casualty Ward. Having regard to the aforementioned material, we find that the history recorded by P.W. 21 as per Ex. P19 cannot be the basis for coming to the conclusion.

Dying declarations heavily relied on by the prosecution are Ex. P21 and Ex. P.24. As per the case of the prosecution, the dying declaration at Ex. P21 is recorded by the Head Constable, attached to Victoria Hospital Police Station (P.W. 23) at 1.30 a.m. on 10.2.2009 in the presence of Dr. Satyanarayana, which means that Ex. P21 is also simultaneously recorded with Ex. P19 at 1.30 a.m. However, the doctor-P.W. 21 does not speak about the presence of Dr. Sathyanarayana at all. So also, the Head Constable (P.W. 23) does not speak about the presence of the doctor-P.W. 21 while recording the dying declaration at Ex. P21.

It is relevant to note that the doctor who certified the fitness condition of the victim while recording the dying declaration Ex. P21 is not examined before the Court. Absolutely no reasons are forthcoming as to why the doctor who certified the fitness condition of the victim is not examined. The only person who speaks about Ex. 21 is the Head Constable-P.W. 23. Before recording Ex. P21, a memo is issued from Victoria Hospital to the Police Station as per Ex. P20. There is nothing on record to show that at what time Ex. P20 has reached Victoria Hospital Police Station; on the other hand, Ex. P20 discloses that the Police Sub-Inspector of Kunigal Police Station has received the said memo-Ex. P20 on 10.2.2009 at Kunigal and the time is not specified in Ex. P20.

Be that as it may, we do not find any supporting material to show that P.W. 23 actually went to Burns Ward and recorded Ex. P21. Nothing is placed on record by the prosecution to show that P.W. 23 was either deputed by the Police Station attached to Victoria Hospital or by Kunigal Police Station. Unless the Police Constables are deputed by the Inspectors or SHOs who are incharge of the Police Stations, the Head Constable would not suo motu proceed to Burns Ward and record the dying declaration. Absolutely no documents are produced to show that P.W. 23 was entrusted with the duty of recording dying declaration of the victim by approaching the Burns Ward of Victoria Hospital. However, he has signed on Ex. P21. Even the date and time of his signature are not mentioned by him at the time of signing.

Ex. P21 runs to two full pages. As aforementioned, the victim had sustained 70% burns to whole body. Major portion of the burns were found on front portion of her body including the face. Generally, it may not be possible for the person who sustained 70% of burns that too on the front portion including face to give such detailed statement as per Ex. P21. Ex. P21 contains every detail regarding family affairs of the deceased, etc. She even mentions in the said Ex. P21 as to how many persons are there in her family and who are all living with her, etc. Ex. P21 is drafted as if it is a complaint drafted by a normal educated person for presenting before the Police Station. In addition to the same, as aforementioned, the doctor who certified the fitness condition of the patient is not examined before the Court. If we peruse the evidence of P.W. 23 meticulously, it is clear that he has nowhere deposed about the fitness of the victim to make a statement. He has merely deposed that he went to Dr. Sathayanarayana who certified the fitness of the patient and consequently he recorded the statement of the victim as per Ex. P21.

The doctor P.W. 21 has deposed that the treatment of the victim was started immediately after her admission to the Victoria Hospital at 1.30 a.m. on 10.2.2009. The nurse''s note also discloses that the patient was at burns ward at 1.45 a.m. and treatment was given. However the dying declaration Ex. P21 is said to have been recorded from 1.30 a.m. to 2.10 a.m. on 10.2.2009. If really the dying declaration Ex. P21 was recorded from 1.30 a.m. to 2.10 a.m. in the burns ward, definitely the doctor P.W. 21 would have known about such lengthy recording of dying declaration by P.W. 23 -Head Constable. On the contrary, the P.W. 23 - Head Constable has deposed that he recorded the dying declaration in presence of Dr. Sathyanarayana who has not been examined before the Court.

Though the said statement at Ex. P21 is said to have been recorded at 1.30 a.m. on 10.2.2009, the same has reached to Kunigal Police Station at 1.30 p.m. on 10.2.2009 with a delay of 12 hours. The delay of 12 hours is not explained by the prosecution. In this context, defence is justified in arguing that Ex. P21 is not recorded at 1.30 a.m. on 10.2.2009 at all and is created subsequently.

It is also relevant to note that while recording the history as per Ex. P19, P.W. 21 (doctor) has taken ''left toe impression'' of the victim on the case sheet of the hospital because the victim was not in a position to put her thumb impression on the case sheet. Curiously, P.W. 23, the Head Constable, in his examination-in-chief itself has deposed that he had taken the ''thumb impression'' of the victim on Ex. P21 which is marked at Ex. P21(c). If the thumb impression could not be taken by the doctor(P.W. 21) while recording the history at Ex. P19, we are at loss to understand as to how P.W. 23-Head Constable would take thumb impression of the victim on Ex. P21. Even otherwise in the absence of the evidence of the doctor, one cannot come to a definite conclusion that the victim was in a position to make statement as per in Ex. P21. This has to be viewed in the light of the evidence of P.W. 12-Dr. Kumar of Sapthagiri Hospital, Kunigal who has deposed that when the victim was admitted to the said hospital she was not in a position to speak.

Thus, in our considered opinion, the trial Court is not justified in believing the dying declaration Ex. P21 and the evidence of the Head Constable-P.W. 23.

What remains to be considered is the dying declaration at Ex. P24 said to have been recorded by the Deputy Superintendent of Police (P.W. 25). In support of this dying declaration, the doctor who certified the fitness condition of the victim is also not examined before the Court. As aforementioned, the doctor who certified on Ex. P21 is also not examined before the Court. Moreover, Ex. P24 seems to have been brought on record for the purpose of implicating accused Nos. 2 to 5 only, though their names are not found in the original complaint at Ex. P1. The trial Court on evaluation of the material on record, has rightly disbelieved the case of the prosecution as against accused Nos. 2 to 5 and consequently those accused are acquitted. Therefore, Ex. P24 may not be of much use to the case of the prosecution in this appeal.

On reconsidering the entire material with regard to dying declarations, we are of the clear opinion that the prosecution has not come up before the Court with true story. Dr. Kumar (P.W. 12) who examined the victim immediately after the incident has emphatically deposed that the victim was not in a position to speak. If it is so, there is nothing on record to show as to when the victim regained the consciousness and as to when the victim was able to state as per Ex. P21. We have narrated in detail the evidence of P.Ws. 21 and 23 to conclude that their evidence is unbelievable. Moreover, while recording the dying declarations, number of relatives of the deceased, namely, P.Ws. 1, 2 and others were present in the hospital and the dying declarations were recorded within the duration of more than half-an-hour. Therefore, the defence is justified in arguing that there is every likelihood of tutoring the victim, if she was really able to speak.

As aforementioned, the victim was initially examined and treated at Sapthagiri Hospital, Kunigal. Subsequently, the victim was treated at St. Johns Hospital for about two hours as is clear from the evidence of P.W. 1, the father of the victim. It has come in the evidence of P.W. 1 that the victim talked with the doctor and she was able to speak when she was in St. John''s Hospital. Despite the same, no intimation was sent by St. Johns Hospital to the Police about the medico legal case. Even the statement of the victim or the history as given by P.W. 1 was not recorded at St. Johns hospital. Later, the victim was shifted to Victoria Hospital. It has to be stated that none of the responsible senior Police Officers such as the Assistant Sub-Inspector of Police, Sub-Inspector of Police or the Inspector of Police of Victoria Hospital Police Station are examined to depose about the dying declaration - Ex. P21 or about the deputation of P.W. 23, the Head Constable to record the dying declaration or to receive the memo -Ex. P20. P.W. 23, the Head Constable has admitted in his cross-examination that generally after receiving statement like Ex. P21, the crime will be registered in the Victoria Hospital Police Station and thereafter the same will be transferred to the jurisdictional Police Station. In the matter on hand, firstly there is nothing on record to show that P.W. 23 is deputed to record the dying declaration - Ex. P21. Secondly, the crime is not registered by P.W. 23 on the basis of Ex. P21 in Victoria Hospital Police Station. Per contra, the case of the prosecution is that the said dying declaration was sent to Kunigal Police Station which is about 100 kilometers away from Bangalore wherein the crime is registered at 1.30 p.m. on 10.2.2009. Thus the entire procedure as followed during the course of investigation creates suspicion in the mind of the Court about the genuineness of Ex. P19 and Ex. P21. Moreover the original case sheet of the hospital in which the history as allegedly stated by the victim is not placed before the Court. Only the Photostat copy of the case sheet of the hospital containing the history of the victim is placed before the Court at Ex. P19. In view of the same, we are of the opinion that all the three dying declarations viz., Ex. P19, Ex. P21 and Ex. P24 might have been created during the course of investigation.

In addition to the same, the evidence of P.Ws. 1,2,4 and 14 would reveal that it is a case of self immolation.

P.W. 14 - Anusha is the friend of the deceased. She was also the classmate of the deceased during the relevant time. Her evidence throws ample light in the matter. P.W. 14 has deposed that the victim used to be dull after the marriage; whenever she asked the victim as to why she was dull, the victim used to reply that she (P.W. 14) will come to know only after her marriage and not prior thereto; Accused No. 1 telephoned her (P.W. 14) on the relevant day and informed her that the victim was unwell and requested her to come to Sapthagiri Hospital and consequently she (P.W. 14) alongwith her aunt went to Sapthagiri Hospital at Kunigal. In the cross-examination, P.W. 14 has admitted that she has stated before the Police as per Ex. P11. It is stated in Ex. P11 that the victim was not getting any marital happiness from the date of nuptials; Accused No. 1 is not in a position to give marital happiness to the victim; all through night, the Accused No. 1 used to simply torture the victim physically; Accused No. 1 used to burn the skin of the victim with cigarette butts and he was feeling that burning the victim with cigarette butts itself is a pleasure for him; whenever the victim asked Accused No. 1 as to why he was torturing her instead of complying marital obligations, he used to assault her by scolding her in filthy language; since Accused No. 1 used to come to meet the victim on every Monday, victim was feeling that the she would have to spend every Monday in hell; even on the date of the incident also, the victim was not well inasmuch as the same was a Monday.

This part of the evidence of P.W. 14 is supported by the evidence of P.W. 2 - the mother of the victim. P.W. 2 has also admitted before the Court that the deceased had told her that she is not getting marital happiness in the company of Accused No. 1; all through night, Accused No. 1 used to simply torture the victim on the bed without performing the marital obligations as a husband.

In other words, the victim had told before P.W. 14 as well as before P.W. 2 that there was no cohabitation at all between the two and in that regard, the victim used to be dull always. A suggestion is also made by the defence that the victim was friendly with one Mr. Praveen who is her relative. However the said suggestion is denied by these witnesses.

Even the case of the prosecution as made out would clearly reveal that there was no cohabitation between Accused No. 1/appellant and the deceased after the marriage and that the victim was not getting sexual pleasure from her husband. On the contrary, she was being tortured physically all through night; the Accused No. 1 used to burn her with cigarette butts and he used to take sadistic pleasure. Based on these facts, the defence may be justified in contending that the victim might have committed suicide by setting herself ablaze.

The evidence of P.W. 4, the neighbour would reveal that at the time of death of the deceased, nobody was there inside the house. In the said house in which the deceased lived with Accused No. 1, the mother of Accused No. 1 was also living, which means the deceased, her mother-in-law and husband (Accused No. 1) were only living in the house. The incident as aforementioned has occurred in a bed room which measures about 6'' x 15''. P.W. 4 has deposed that at the time of the incident, the deceased alone was in the house and after hearing the news, the accused and all his relatives came to the spot. All the neighbours grouped together to extinguish fire on the body of the victim. It is specifically deposed by P.W. 4 that the accused took the victim to the hospital in a car. When asked by P.W. 4 as to the reason of such action by the deceased, the victim simply told her that she was frustrated in life and therefore she committed such an act. Unfortunately, in the matter on hand, though the mother of Accused No. 1 - Chennamma was living in the house alongwith the deceased and Accused No. 1, she is not examined before Court. It is the specific case of the prosecution that Chennamma came immediately after hearing the hue and cry raised by the deceased. But the said Chennamma though cited as a witness, is not examined before the Court. The evidence of the Investigating Officer P.W. 27 would reveal that he recorded the statements of all the neighbouring witnesses. But none of the neighbouring witnesses except P.W. 4 are examined before the Court. There is no reason as to why such independent witnesses including Chennamma are not examined before the Court. The only neighbour who is examined before the Court is P.W. 4 and he has deposed against the case of the prosecution. In this context, the argument of Mr. Hashmath Pasha that the prosecution has deliberately suppressed the material before the Court assumes importance.

From the aforementioned material on record, we are of the clear opinion that it is not a case of homicidal death, but it is a case of suicidal death. We are also clear in our mind that the deceased has not committed suicide because of alleged dowry harassment. The material on record is not sufficient to conclude that there was demand of additional amount of dowry after the marriage of the deceased. The material is also not sufficient to conclude that the accused had demanded dowry and accepted the dowry at the time of marriage. Undisputedly, the family of the accused as well as the family of the deceased are financially well off. They were related inter se even prior to the marriage and they are from the same village. The marriage has taken place willingly between the two. We find that the material on record is not sufficient to bring home the guilt against the Accused No. 1 for the offence under Section 304-B of IPC. However we find that the Accused No. 1 shall be convicted for the offence under Section 306 of IPC. As aforementioned, the material on record reveals that Accused No. 1 used to torture the victim by burning her skin and assaulting her with stick etc., Accused No. 1 was suspecting the fidelity of the victim unnecessarily and without any reason (as per defence theory). We have already narrated the conduct of Accused No. 1 as against the deceased. The accused No. 1 has abetted the commission of suicide by the deceased, by torturing her as mentioned supra. In view of the same, the Accused No. 1 shall be convicted for the offence under Section 306 of IPC.

We have heard the learned advocate for the appellant/Accused No. 1 as well as the learned Addl. SPP on the question of sentence. Sri Hashmath Pasha, learned advocate for the appellant brings to the notice of the Court that the Accused No. 1 has already undergone more than five years imprisonment and that itself would be sufficient punishment under the facts and circumstances of the case. The same is opposed by Mr. Venkatesh, learned Addl. SPP.

Having heard the learned counsel on both the sides, we pass the following order:

"i) The impugned Judgment & Order of conviction and sentence dated 26/27.8.2011 passed in S.C. No. 115/2009 insofar as convicting Accused No. 1/appellant - Bettaswamy Gowda for the offences punishable under Sections 498-A and 302 of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, stands set aside.

ii) The appellant/Accused No. 1 is convicted for the offence punishable under Section 306 of IPC. He is sentenced to undergo imprisonment for five years.

iii) Since appellant/Accused No. 1 has already undergone five years of imprisonment, he shall be released forthwith, in case if he is not required in any other case."

It is needless to observe that the benefit of set off as provided under Section 428 of Cr.P.C. is given to the appellant/Accused No. 1 while passing the aforementioned order.

The Criminal Appeal is allowed in part accordingly.