Counselor Lakhsmi and Others vs The State

P.D. Waingankar, J.

This appeal is directed against the judgment of conviction and order of sentence dated 30.4.2010 passed by Fast Track Court, Sagar in S.C. No. 229/2007, whereby all the accused have been convicted for the offences punishable under sections 323, 342, 504, 306 r/w 34 IPC and have been sentenced to undergo imprisonment and to pay fine.

The case of the prosecution is briefly stated as under:--

"On 16.12.2005, at about 8.30 p.m., accused Nos. 1 to 3 with their common intention called deceased Radhika through Vinod, Son of elder sister of accused No. 1 to the house of accused No. 1 Smt. Laxmi situated in Workmen Block, Jog. When deceased Radhika came inside the house of accused No. 1, she was confined inside the house and was asked to spend a night in the company of accused No. 2 Ravi, she was abused by accused No. 3 Chitra addressing her and her younger sister as prostitutes. They also told her that it is better she should die either by setting fire to herself or by jumping into the well. She was annoyed by the acts of accused Nos. 1 to 3. She went back to her house at about 8.45 p.m., poured kerosene on her body and set fire to herself. When she was engulfed by flames, she raised hue and cry, thereby P.W.-1 Mangala-younger sister of the deceased, P.W.-2 mother, P.W.-13 Ravi neighbour rushed to the spot and extinguished the fire by pouring water. She sustained extensive burns all over her body. She was shifted to Government Hospital at Sagar in the car belonging to P.W.-13 Ravi by P.W.-14 Gunashekar. P.W.-6 Dr. Vishwanath who treated her in Government Hospital, Sagar, forwarded medico-legal intimation as per Ex-P7 to Sagar Town police station whereby P.W.-12 head constable from Sagar City police station rushed to the hospital and on enquiry as to the conditions of the patient to give statement with P.W.-6, P.W.-12 recorded her statement as per Ex-P2 and forwarded the same to Jog police station within whose jurisdiction, the incident had occurred. On the strength of Ex-P2, P.W.-11- G. Shivanatha, Station House Officer registered the case in Cr. No. 8/2005 against accused Nos. 1 to 3 under Sections 323, 504, 324 IPC and forwarded the FIR Ex-P14 to the jurisdictional Magistrate. Since the conditions of the patient were precarious, she was shifted to Megan Hospital, Shimoga, where she died on 24.12.2005 while undergoing treatment. P.W.-10 H. Narasimha, PSI of Jog police station who conducted further investigation submitted a memo to the Magistrate as to the death of deceased seeking permission to add section 306 IPC. He forwarded the seized articles such as kerosene can, match box and burnt hairs of the deceased (M.O. 1 to 3) to Forensic Science Laboratory and secured report as per Ex-P13. After completion all other formalities of investigation, he filed charge-sheet against all the accused persons for the offences punishable under sections 323, 342, 504 and Section 306 IPC. The accused having denied the charges levelled against them, the prosecution examined 15 witnesses, marked exhibits P1 to P12 apart from M.O. 1 to 3. On behalf of the defence, Ex-D1 came to be marked. The learned Sessions Judge on hearing the submissions made by both the learned counsel and on appreciation of evidence convicted all the three accused for the offences with which they were charged and have been sentenced to undergo imprisonment and to pay fine by the impugned judgment and order. Hence, this appeal by the accused Nos. 1 to 3."

I have considered the submissions made by both the learned counsel appearing for the appellant-accused and the respondent State. Perused the records and the judgment and order passed by the court below.

Learned counsel appearing for the appellants-accused would submit that though there was no evidence much less legally acceptable and reliable evidence, the accused have been convicted and therefore the conviction is liable to be set-aside.

Learned High Court Government Pleader on the other hand has argued in support of the judgment and order passed by the Court below.

Before proceeding to appreciate the evidence of the witnesses examined on behalf of the prosecution, it would be necessary to place on record the gist of the evidence given by each of the witnesses examined by the prosecution.

P.W.-1-Mangala the younger sister of the deceased and P.W.-2 Shakunthala -mother of the deceased have deposed in their evidence that on 16.12.2005 at about 8.30 p.m. while both of them were sitting in front of their house, Vinod, Sister''s son of accused No. 1 came and called Radhika to the house of accused No. 1, Radhika went to the house of accused No. 1; after 10 minutes, she returned from the house of accused No. 1 and without talking to P.W.-1 and 2, she went inside the house. Within no time, they heard hue and cry raised by Radhika and thereby immediately they rushed inside the house and saw Radhika engulfed by flames. At the same time, P.W.-13-Ravi, P.W.-14 Gunashekar rushed to the house and extinguished the fire by pouring water. It is further deposed that Radhika sustained burns injuries all over her body. On enquiry by P.W.-1 and P.W.-2 as to why she set fire to herself, she stated that about three months ago, while she was alone in the house, accused No. 2 entered the house and attempted to commit rape on her and when she refused, he went away and that is why she was taken to the house of accused No. 1 where she was assaulted by accused Nos. 1 to 3 and also abused her and her sister in filthy language as prostitutes and told her better to die either by pouring kerosene or by jumping into the well and being annoyed by the acts of accused, she set fire to herself. Further, they deposed that she was taken to Government Hospital, Sagar, from there, she was taken to Megan Hospital, Shimoga, where she died while undergoing treatment on 24.12.2005. It is further deposed that on account of the harassment of accused Nos. 1 and 2, she was driven to commit suicide.

P.W.-3-Manjunath is a pancha to inquest panchanama over the dead body of deceased Radhika conducted in Megan Hospital, Shimoga. But he has denied having conducted inquest panchanama Ex-P4 in his presence. He has also denied for having given statement to that effect as per Ex-P5. He has been treated as hostile witness.

P.W.-4 Narasimhaegowda is a pancha to spot panchanama Ex-P6 conducted in the house of accused No. 1 where deceased Radhika said to have been assaulted, abused and confined by accused Nos. 1 to 3, but he has turned hostile to the prosecution case.

P.W.-5 Abdul Kadar is pancha to spot panchanama conducted in the house of deceased Radhika as per Ex-P1, whereunder M.Os. 1 to 3 plastic can, match stick and burnt hairs of deceased Radhika were seized, but he has turned hostile to the prosecution case.

P.W.-6 Dr. Vishwanatha is the Doctor working in Sagar Government Hospital. His evidence is that on 16.12.2005 at about 9.50 p.m., Radhika was brought to Government Hospital at Sagar with burn injuries; she had 90-95% burn injuries, she was brought by her mother and others. Since it was a case of burn injures, he forwarded the medico-legal intimation to Sagar police station, whereby P.W.-12 head constable, Sagar Rural police station came to the police station and after consulting, P.W.-6 recorded the statement of Radhika as per Ex-P2. He has further deposed that after recording her statement, he directed Dr. Raja to refer her to Megan Hospital, for further treatment.

P.W.-7- Dr. S. Rudramurthu is a Doctor from Megan Hospital, Shimoga. He has deposed that on 24.12.2005, as per requisition of Jog police station, he conducted post-mortem examination over the dead body of deceased Radhika and issued post-mortem report as per Ex-P8.

P.W.-8 Anjali is the neighbour of PWs-1 and 2, who rushed to the house of deceased after hearing hue and cry and saw deceased Radhika engulfed by flames and thereafter PWs-1 and 2 her sister and mother extinguished the fire by pouring water. He has further deposed that thereafter she was taken to Sagar Government Hospital in a car belonging to Ravi. But she has made it clear that she does not know for what purpose, deceased set fire and she has denied having given statement to police as per Ex-P9. Thus, she has been treated as hostile witness.

P.W.-9 Vasudev C.N. is the police constable in Jog police station who was present while conducting spot panchanama as Ex-P1 in the house of deceased Radhika whereunder M.O. 1 to 3 were seized.

P.W.-10-H. Narasimha is the PSI of Jog police station, who registered the case in Cr. No. 8/2005. Upon receipt of Ex-P2, the statement of the deceased was recorded by police attached to Sagar rural police station and he has also deposed that after receipt of intimation as to the death of the deceased, she submitted memo on Section 306 and forwarded second FIR Ex-P11.

P.W.-11 Dr. G. Shivanatha is the Station House Officer working in Jog police station. He has deposed on 17.12.2005, he received the statement of deceased Radhika from Sagar rural police station on the basis of which, he registered a case in Cr. No. 8/2005 for the offences punishable under sections 323, 504 r/w 34 IPC and forwarded the FIR to the jurisdictional Magistrate as per Ex-P14. Further, he has deposed that on 18.12.2005, he went to the house of accused No. 1 and conducted panchanama as per Ex-P6 in the presence of panchas Abdul Khadar and Subramanya. On 22.12.2005, he conducted panchanama in the house of deceased as per Ex-P1 in the presence of panchas, wherein he seized M.O. 1 to 3. He also conducted inquest panchanama over the dead body of deceased Radhika in Megan Hospital as per Ex-P4 and recorded the statement of the witnesses during inquest.

P.W.-12 Abdul Aleem, is the head constable working in Sagar Town police station. His evidence would go to show tat on 16.12.2005, he was working as Station House Officer in Sagar Town police station. At about 10.30 p.m., he received a memo from Sagar Government Hospital stating that Radhika of Jog Falls has been admitted with burn injuries at about 9.50 p.m., immediately, he went to Sagar Government Hospital and after taking opinion of the Doctor, who was treating her, he recorded the statement of Radhika as per Ex-P2, wherein, she has stated that on account of harassment given by accused Nos. 1 to 3, she was driven to commit suicide.

P.W.-13 Ravi has deposed that on 16.12.2005, while he was taking his dinner at Workmen Block, Jog, the elder brother of Radhika Sri. Gunashekar asked him over telephone to bring his car; immediately he took his car to the house of Gunashekar and shifted Radhika to Government Hospital, Sagar. He has been treated as hostile witness, since he has deposed that when he saw Radhika, she told that she was assaulted by others and when she disclosed the same to his brother, his brother also assaulted her and thereby she set fire to herself.

P.W.-14 Gunashekar is the elder brother of deceased Radhika. His evidence is that on 25.12.2005, he was present while conducting inquest proceedings over the dead body of his sister Radhika as per Ex-P4. Further he has deposed on 26.12.2005, he was present in Jog police station when M.O. 1 to 3 were seized, sealed and sent for Forensic Science Laboratory, Bangalore under panchanama Ex-P12.

P.W.-15 Subramanya is also resident of Workmen Block, Jog. His evidence is that on 18.12.2005, a panchanama was drawn in the house of one Munniyamma as per Ex-P6 to which he subscribed his signature. Further, he has deposed on 22.12.2005, a panchanama was drawn in the house of deceased Radhika of the spot shown by P.W.-1 Mangala as per Ex-P1, wherein, a plastic can, match box and burnt hairs M.Os. 1 to 3 were seized by the police. He has also deposed that he was present on 25.12.2005 in Megan Hospital while drawing inquest panchanama as per Ex-P4.

From the evidence of the witnesses, it is evident that P.W.-3 Manjunatha, P.W.-4 Narsimhaegowda, P.W.-5 Abdul Kadar, P.W.-8 Anjani and P.W.-13 Ravi have turned hostile to the prosecution. P.W.-11, P.W.-14, P.W.-15 are the formal witnesses being panchas. They do not speak about the incident. P.W.-7 is the Doctor, who conducted autopsy over the dead body of deceased Radhika and issued post mortem report Ex-P8. He opined the cause of death as septicemia as a result of burn injuries. P.W.-1 Mangala, the sister of the deceased has deposed that the deceased was called to the house of accused No. 1 through her sister''s son Vinod at about 8.30 p.m. on 16.12.2005 and within 10 minutes, she returned from the house of accused No. 1 and straight way went inside the house without talking to P.W.-1 and P.W.-2, who were sitting on the payal of the house. She went inside the house and within no time, PWs-1, 2, 13 heard hue and cry and thereby they rushed inside the house, they saw deceased Radhika engulfed by the fire, they poured water and extinguished the fire. They noticed that she had extensive burns all over the body and thereafter she was taken to Sagar Government Hospital by P.W.-14 in the car belonging to P.W.-13. Further, P.W.-1 has deposed that on enquiry with Radhika as to why she set fire to herself, she disclosed that when she went to the house of accused No. 1, all the accused Nos. 1 to 3 were there in the house, they asked to spend one day in the company of accused No. 2 and when she refused, they assaulted her, abused her in filthy language addressing her and her sister as prostitutes and thereby being annoyed, she came to the house, poured kerosene and set fire to herself. Further, P.W.-1 has deposed that her sister deceased Radhika had also told her that 3 months prior to the incident, accused No. 2 Ravi entered her house while she was alone and misbehaved with her and thereby he was sent out and that is why, the accused Nos. 1 to 3 called her in the house of accused No. 1 and asked her to spend one day with accused No. 2. In the cross examination, P.W.-1 admitted that all the accused are their relatives, P.W.-1 and her family members are not in cordial terms since many years and that they were not going their house. If that is the case, the deceased going to the house of accused immediately after she was called by Vinod appears to be somewhat strange. Further, it has come in the evidence of P.W.-1 in the cross examination that deceased was in love with one Harish from Jog Falls for which the elder brother of deceased-Shivakumar was opposing and threatening the deceased.

If we go by the evidence of P.W.-2 the mother of the deceased, she has given her evidence quite contrary to the evidence given by her daughter P.W.-1. Her evidence would go to show that on 16.12.2005, when P.W.-2 alongwith P.W.-1 were sitting on the payal of their house, Vinod the son of sister of accused No. 1 came and took Radhika to the house of accused No. 1 stating that she was called by his mother. After sometime, Radhika came weeping and stated that all the accused abused her, assaulted her and outraged her modesty and therefore she would die. She ran towards forest, somehow she was chased by P.W.-2 and they found that she set fire to herself by pouring kerosene. In other words, from the evidence of P.W.-2, it appears that she set fire to herself not inside the house. The suggestion made to P.W.-2 that the relationship of her family members and the accused is strange has been denied by her. She has also denied that Radhika was in love with one Harish. She has also denied that her son was opposing the love affair of Radhika and Harish. Thus there is no consistency between the evidence of P.W.-1 and 2-the daughter and the mother. Under such circumstances, it is not safe to place reliance on their evidence. If the evidence of P.W.-1 and 2 is taken out, what remains behind is Ex-P2 the statement of the deceased recorded while she was in Government Hospital, Sagar by P.W.-12-the head constable, wherein, she has stated that when she had been to the house of accused No. 1, all the accused Nos. 1 to 3 were there, they asked her to spend a day in the company of accused No. 2 Ravi and when she refused, all the accused assaulted her, abused her in filthy language as prostitutes and annoyed by the same, she came running to her house and set fire to herself by pouring kerosene. Whether Ex-P2 can be treated as a dying declaration is the question?. Admittedly, it was recorded by a head constable. Though the said statement said to have been recorded in the presence of Dr. Vishwanath Nayak, there is no endorsement by the Doctor as to the condition of the patient to give a statement. The evidence of Dr. Vishwanath P.W.-6 would reveal that when he examined her, she had 90-95% burn injuries. Under such circumstances, the statement recorded by the head constable without certification by the Doctor is rather difficult to accept as the statement given by the deceased. Moreover, it is not in the question and answer form. It is also borne out from the records that she was semi conscious when she was brought to Sagar Government Hospital. Therefore, for all these reasons, I am not inclined to accept Ex-P2 as the statement made by the deceased in the form of a dying declaration.

Even if for the sake of the argument, it is taken as the statement made by the deceased, at the most, it may amount to humiliation caused by the accused and definitely it does not amount to instigation so as to induce the deceased to commit suicide. Added to that, while recording 313 Cr.P.C. statement, accused No. 3 had produced a copy of Attendance Register maintained by Government College of Nursing, Bangalore, where the appellant No. 3 was working for the period from 21.11.2005 to 20.12.2005. It shows that appellant No. 3 Chitra was working on the date of alleged incident on 16.12.2005. The certificate which was produced during examination under Section 313 Cr.P.C. has been overlooked by the learned Sessions Judge. The learned Sessions Judge has failed to appreciate the evidence in proper perspective and thereby it has led to miscarriage of justice. On my re-appreciation of the evidence, I am of the considered view that the evidence placed on record by the prosecution is not sufficient to prove the charges levelled against the accused persons beyond reasonable doubt. Hence, I pass the following order:--

The appeal is allowed. The judgment of conviction and order of sentence passed by Fast Track Court, Sagar in S.C. No. 229/2007 dated 30.4.2010 is hereby set-aside. The appellant-accused Nos. 1 to 3 are acquitted of all the charges levelled against them.