Nagamma and Others vs The State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of conviction dated 3.1.2005 passed by the Fast Track Court No. II, Mysore in Sessions Case No. 227/1999 is appealed against by the convicted accused Nos. 1 and 2 in these two appeals. Crl.A. No. 1134/2011 is filed by the convicted accused No. 2, whereas, Cril.A. No. 180/2005 is filed by convicted accused No. 1.

Though there were three accused initially, case against accused No. 3 was split up and she was tried before the Juvenile Justice Board since she was a juvenile during the relevant point of time. Accused Nos. 1 and 2 were tried for the offences punishable under Sections 498A, 304B and 302 of IPC apart from Section 4 of the Dowry Prohibition Act. The trial Court convicted accused No. 1 for the offence punishable under Section 4 of the Dowry Prohibition Act and under Section 498A of IPC. He is acquitted of the offences under Section 304B of IPC and under Section 302 of IPC; whereas, accused No. 2 is convicted for all the offences with which she was charged, including the offence punishable under Section 302 of IPC.

Case of the prosecution in brief is that the first accused is the husband of the deceased Gurusiddamma. Their marriage took place on 5.9.1996 at Veerabhadraswamy Temple, Chamarajanagar; second accused is the mother of the first accused and third accused(juvenile) is the sister of the first accused; during the marriage negotiations the accused demanded a sum of Rs. 25,000/- towards dowry; however, the parents of the deceased were able to pay a sum of Rs. 12,000/- and remaining amount of Rs. 13,000/- was not paid; thus, the accused started torturing the victim pressurising her to bring balance of dowry of Rs. 13,000/- from her parents. In between 12.00 p.m. to 1.00 p.m. on 23.1.1999 when the victim was in her matrimonial house situated at Vaddara Palya, Hampapura Hobli, H.D. Kote Taluk, Chamarajanagar District, the second and third accused quarreled with her on the aforementioned grounds once again; second accused sprinkled kerosene on the victim and the third accused set her ablaze. During the relevant point of time, accused No. 1 i.e., the husband of the victim was not in the house and was also not in station. Immediately, the victim was taken to Hampapura Primary Health Centre in H.D. Kote Taluk by accused No. 2 and another lady; the Doctor at Hampapura Government Hospital sent a Memo as per Ex. P6 to the concerned police station which is received by P.W.3; the Doctor at Hampapura referred the patient to K.R. Hospital, Mysore for further treatment; the victim breathed her last at K.R. Hospital, Mysore on 8.2.1999.

P.W.3 went to K.R. Hospital, Mysore and recorded the statement of the victim as per Ex. P4 at about 2.00 p.m. on 24.1.1999 and registered Crime No. 12/1999 in H.D. Kote police station and investigation commenced. During the course of investigation, based on the request of investigating authorities, the Taluka Executive Magistrate (P.W.1) came to the hospital, wherein the victim was under treatment and recorded her statement as per Ex. P1 on 1.2.1999 in between 4-4.30 p.m. P.W.22, the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 22 witnesses and got marked 29 exhibits and two material objects. The defence did not produce any evidence on its behalf. As aforementioned, the trial Court convicted accused No. 1 for the offence punishable under Section 498A and under Section 4 of the Dowry Prohibition Act, whereas, accused No. 2 is convicted for all the offences with which she is charged including the offence under Section 302 of IPC. The case against accused No. 3 was split up and she was tried before the Juvenile Justice Board since she was a juvenile during the relevant point of time.

Sri. Shashidhar, learned advocate appearing on behalf of the second accused submits that the case of the prosecution entirely rests on Exs. P1 and P4, the dying declarations; both the dying declarations are unreliable; they run contrary to Ex. P6 the memo sent by the Doctor at Hampapura Government Hospital to the police station immediately after examination of the patient; Ex. P6 is first in point of time and therefore, more weightage has to be attached to it; if really accused No. 2 had participated in the incident to take away the life of the victim, she would not have ventured to shift the victim to the hospital; the trial Court is not justified in relying upon two dying declarations, which are inconsistent and unbelievable.

Sri. Chandrashekar, learned Advocate appearing on behalf of the first accused submits that the trial Court is not justified in convicting accused No. 1 for the offence under Section 498A and Section 4 of the Dowry Prohibition Act, in as much as, the material on record is not sufficient to conclude that the victim was harassed by accused in any manner, more particularly, by demanding dowry.

Per-contra, learned Additional SPP Sri. Keshava Murthy argued in support of the judgment of the Court below by contending that if the two dying declarations are read together it is clear that there is no conflict between the two dying declarations; merely because the Doctor is not examined before the Court supporting the two dying declarations, the public servants like the Police Inspector as well as the Taluka Executive Magistrate cannot be suspected; ample material is found on record to show that the victim was in a position to speak and she died only on 8.2.1999; Ex. P6 is merely a memo issued by the Doctor, which cannot take away the effect of the two dying declarations; there is nothing on record to show that the matter found in Ex. P6 is narrated by the victim herself to the Doctor; the evidence of the Doctor (PW.14) clearly discloses that two ladies had accompanied the victim, which means that the two ladies must have given the history about the incident, for which, justice should not suffer. On these among other grounds, he argued for dismissal of the appeal.

P.W.1 is the Taluka Execute Magistrate who recorded the dying declaration as per Ex. P1 on 1.2.1999 between 4-4.30 p.m. in K.R. Hospital, Mysore; P.W.2 is the Doctor who conducted post mortem examination over the deadbody, the post mortem report is at Ex. P2. P.W.3 is the Head Constable attached to H.D. Kote police station during the relevant point of time. He received a memo from Hampapura hospital as per Ex. P6 at 6.30 p.m. on 23.1.1999 and went to K.R. Hospital and recorded the statement of the victim at 2.00 p.m. on 24.1.1999 in the hospital as per Ex. P4. P.W.4 is the father of the deceased. P.W.5 is the mother of the deceased. Both of them have turned hostile. P.Ws.6, 7 and 8 were known to accused and deceased. They have participated in the marriage negotiations and they have turned hostile. P.Ws.9 and 12 participated during panchayat talks after the marriage. They have turned hostile to the case of the prosecution. P.Ws.10 and 11 are the neighbours who are supposed to depose about the ill-treatment. Both of them have turned hostile to the case of the prosecution. P.W.13 is the witness for the scene of offence panchanama. He has also turned hostile. P.W.14 is the Doctor who gave first aid at Hampapura Primary Health Centre to the victim and issued memo as per Ex. P6 intimating to the H.D. Kote police authority about the case. He referred the patient to K.R. Hospital, Mysore for better treatment. P.W.15 is the uncle of the deceased, who allegedly shifted the injured to K.R. Hospital from Hampapura Hospital. He has also turned hostile. P.Ws.16 and 17 who are supposed to depose about the circumstances, have turned hostile. P.Ws.18 and 19 are the witness for the seizure of clothes of the deceased under panchanama Ex. P21. They have turned hostile. P.W.20 is the Inspector of Police, who has conducted inquest panchanama. He investigated into the crime in part and ultimately, P.W.22 has completed the investigation and laid the charge sheet.

From the aforementioned it is clear that the entire case of the prosecution depends upon the two dying declarations Exs. P4 and Ex. P1 and the depositions of the persons, who recorded them i.e., versions of P.Ws.3 and P.W.1. Almost all the witnesses have turned hostile, except P.Ws.1, 2 and 3 apart from investigating officers. P.W.2, as aforementioned, is a Doctor who conducted post mortem examination. It is not in dispute that the death is homicidal in nature.

We have perused the two dying declarations Ex. P1 and Ex. P4 meticulously. In both these dying declarations it is consistently stated by the victim that she was treated badly in her matrimonial house by all the three accused; she was made to starve; she was not provided with food; she was harassed both physically and mentally; on the date of the incident accused No. 1 was not there in the house; accused No. 2 splashed kerosene on her and accused No. 3 set her ablaze. The aforementioned facts are consistent in both the dying declarations. Thus the views expressed by the victim in both the dying declarations are not conflicting.

Ex. P4 is first in point of time. It was recorded at 2.00 p.m. on 24.1.1999 by the Head Constable attached to H.D. Kote police station in K.R. Hospital. The incident has taken place at about 1.00 p.m. on 23.1.1999 in the matrimonial house of the deceased. It is no doubt true that P.W.3 has received the memo from Hampapura hospital as per Ex. P6 at about 6.30 p.m. on 23.1.1999. Despite the same, the Head Constable unfortunately did not go to the hospital for the purpose of recording the statement and for investigation purposes. He could have immediately gone to the hospital for setting the law into motion. For the best reasons known to him, he went to the hospital at about 2.00 p.m. on the next day i.e., on 24.1.1999. Be that as it may, merely because he has gone to the hospital with a delay, the case of the prosecution cannot be suspected. The left thumb impression of the victim is taken on the dying declaration Ex. P4 after recording the dying declaration. It is also specified by P.W.3 (the Head Constable) by making an endorsement on the dying declaration that none of the Doctors at K.R. Hospital were available and as none of the employees of K.R. Hospital came forward to attest their signatures on the dying declaration Ex. P4, he proceeded to take the signature of one Smt. Padma who was attending the patient by name Shylaja in the very ward. Based on Ex. P4, the crime came to be registered. It is no doubt true that it appears unnatural that none of the Doctors were present and came forward to endorse their signature or none of the employees of the hospital including the nurses came forward to endorse their signature on the dying declaration. But there is no reason as to why the role of police official-P.W.3 should be suspected. He is a public servant. He is neither related to the accused nor deceased. Absolutely no allegations are made against him alleging bias. As a law abiding police officer, he went from the police station after receiving Memo from the hospital and recorded the statement of the victim as per Ex. P4, based on which, the crime came to be registered. Thereafter, the investigation proceeded.

Subsequently, based on the request of the investigating officer, the Taluka Executive Magistrate went to the hospital and recorded the statement of the victim as per Ex. P1 from 4-4.30 p.m. on 1.2.1999. The dying declaration Ex. P1 is in "question and answer" form. The right thumb impression of the victim is affixed to the dying declaration Ex. P1. The Doctor by name M.A. Shariff (Lecturer in Surgery, Government Medical College, Mysore) has made an endorsement on the dying declaration that the patient is conscious during the relevant point of time and that the statement was recorded in his presence. We have already mentioned supra that the contents of Ex. P1 are almost similar to the contents of Ex. P4. The Taluka Executive Magistrate has withstood in his cross-examination by deposing that he took the right thumb impression of the victim because the left thumb was burnt to substantial extent and therefore, he could not take the left thumb impression. He has also deposed that Dr. M.A. Shariff was present and he has permitted the Taluka Executive Magistrate to record the statement. The Taluka Executive Magistrate has further deposed that he was satisfied about the fitness of the victim to make statement and thereafter, he recorded the statement. We do not find any flaw in the version of the Taluka Executive Magistrate before the Court.

Shri. Shashidhar, learned advocate for the appellant strongly contends that both the dying declarations are unbelievable, in as much as, the first dying declaration is not supported by the doctor''s endorsement relating to fitness of the victim and the second dying declaration Ex. P1 is not supported by the deposition of the Doctor before the Court. Such submissions cannot be accepted. Ultimately, what is to be looked into by the Court is that whether the victim was in a fit condition to make statement or not. If the Court is satisfied that the victim was in a fit condition to make statement, it may not attach much weightage for non-examination of the Doctor.

The Apex Court in the case of Shanmugam @ Kulandaivelu Vs. State of Tamil Nadu, AIR 2003 SC 209 : (2003) CriLJ 418 : (2002) 9 JT 518 : (2002) 10 SCC 4 has held that ''the Magistrate, who recorded the statement, if satisfied that the victim was conscious enough to make statement, the same would be sufficient. Mere fact that the Doctor, in whose presence the dying declaration was recorded and who also endorsed it, was not examined does not affect the evidentiary value of the declaration''.

Exactly, similar situation is found in the case on hand. In this matter also, the Doctor was present at the time of recording the dying declaration and he has made an endorsement that the victim was conscious and that the statement was recorded in his presence. However, he was not examined before the Court. Merely because the Doctor who endorsed on the dying declaration is not examined before the Court, the evidentiary value of the dying declaration is not affected in view of the fact that the Taluka Executive Magistrate was satisfied about the fitness of the victim to make statement. The victim was conscious enough to make statement and she has made statement before Taluka Execute Magistrate as well as before the Doctor. P.W.1 being the responsible officer of the State and who is invested with magisterial powers, is not expected to tell falsehood before the Court. Even otherwise, we do not find anything on record to show that the role of the Taluka Executive Magistrate could be suspected.

The aforementioned view of the Apex Court is reiterated in the case of P.V. Radhakrishna Vs. State of Karnataka, AIR 2003 SC 2869 : (2003) CriLJ 3717 : (2003) 2 DMC 220 : (2003) 6 JT 84 : (2003) 5 SCALE 438 : (2003) 6 SCC 443 : (2003) 1 SCR 745 Supp : (2003) AIRSCW 3587 : (2003) 5 Supreme 98 as well as in the case of Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 : (2002) CriLJ 4095 : (2002) 4 Crimes 42 : (2002) 6 JT 313 : (2002) 6 SCALE 135 : (2002) 5 SCALE 418 : (2002) 6 SCC 710 : (2002) 1 SCR 697 Supp : (2002) 2 UJ 1363 : (2002) AIRSCW 3479 : (2002) 5 Supreme 557 .

Shri. Shashidhar, learned Advocate appearing on behalf of the defence further submitted that the death has occurred on 8.2.1999 whereas, the two dying declarations are recorded much earlier i.e., on 24.1.1999 and 1.2.1999 and therefore, according to him, these dying declarations cannot be really called as dying declarations, in as much as, they are not made in imminent expectation of death. The said submissions are also cannot be accepted. Section 32(1) of the Evidence Act does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relations to the actual occurrence. In other words, the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. The aforementioned observations of us are supported by the observations of the Supreme Court in the case of Kans Raj Vs. State of Punjab and Others, AIR 2000 SC 2324 : (2000) CriLJ 2993 : (2000) 1 DMC 645 : (2000) 5 JT 223 : (2000) 3 SCALE 429 : (2000) 5 SCC 207 : (2000) AIRSCW 2093 : (2000) 3 Supreme 554 .

Shri. Shashidhar vehemently argued that Ex. P6 takes away the effect of both the dying declarations. We are unable to persuade ourselves to accept such submissions. Ex. P6 is merely a Memo sent by the Doctor to the hospital. At the most it can be said that the Doctor has recorded the history as stated to him by somebody. There is nothing on record, more particularly, in the evidence of P.W.14 and Ex. P6 that the burn injuries are due to self burn or have been spoken to by the victim herself. Per-contra, P.W.14 who issued Ex. P6 has clarified that the victim was accompanied by two ladies. In this view of the matter, learned SPP is justified in contending that, may be the two ladies who had accompanied the victim must have given such history. The entire matter has to be viewed keeping in mind that all the witnesses have turned hostile including the parents of the deceased which means, all the witnesses somehow wanted to save the accused. Admittedly, it was accused No. 2 who went to the hospital along with the victim apart from others. Since there is nothing on record to show that the victim herself has given such a history of self burns, it would be hard to accept the contentions of the defence that it is the case of self burns and not homicidal death.

Lastly, it is contended by Shri. Shashidar that Ex. P4 contains the left thumb impression of the victim whereas Ex. P1 contains the right thumb impression of the victim and therefore, both cannot be relied upon. Such submission is unacceptable. The Taluka Execute Magistrate who was examined before the Court as P.W.1 has clarified that he could not take the left thumb impression since the left thumb had completely burnt.

Similar situation arose before this Court in the case of Neelasing Sharnappa Hajeri v. State of Karnataka reported in ILR 2000 KAR 4917 wherein contention was taken by the defence that out of two dying declarations, one dying declaration was having thumb impression and another did not have any impression or signature. This Court while reiterating the contention as raised by the defence in this case concluded that absence of any impression of the victim on the dying declaration does not matter much, particularly, if it is proved by the prosecution that the victim was in a position to make statement during the relevant point of time.

We have considered the entire material on record. We find that there is no possibility of victim making the statement as a result of tutoring, prompting or vindictiveness. We also find that the dying declarations are not the product of imagination. We are fully satisfied that the deceased was in a fit state of mind to make statement. Both the dying declarations are true, voluntary and not influenced by extraneous considerations. Hence, the trial Court has rightly convicted the accused based on the two dying declarations without any further corroboration.

It is by now well settled that if the dying declarations are believable, further corroboration is not necessary. The requirement of further corroboration is not the requirement of rule of law, but it is a rule of prudence. Since in this matter we find that the two dying declarations are reliable, we do not see any ground to disagree with the conclusion reached by the trial Court.

We find that the trial Court has convicted accused No. 2 for the offences punishable both under Section 304B of IPC as well as for Section 302 of IPC. Such order passed by the trial Court is erroneous. We clarify that accused No. 2 is liable to be convicted for the offence under Section 302 of IPC and not for the offence under Section 304B of IPC. With the said clarification, Crl.A. No. 1134/2011 stands dismissed.

However, having regard to the totality of facts and circumstances, we deem it proper to reduce the sentence in respect of accused No. 1 for a period of one year. Accordingly, the following order:

"Appeal filed by accused No. 1-Swamybovi in Crl.A. No. 180/2005 is allowed in part. The order of conviction passed against him for the offence under Section 4 of the Dowry Prohibition Act and under Section 498A of IPC is confirmed. Further the sentence imposed on him is reduced to one year from three years. Sentence of fine as imposed by the Court below remains unaltered. The sentence imposed in respect of Section 4 of the Dowry Prohibition Act and under Section 498A of IPC shall run concurrently. The bail bonds of accused No. 1 stands cancelled."