Rangaswamy and Others vs State of Karnataka

Mohan M. Shantana Goudar, J—The appellants herein are convicted by the IV Additional Sessions Court, Mysore in Sessions Case No. 193/2010 by the judgment and order dated 30.1.2012 for the offences punishable under Sections 498(A) and 302 both r/w Section 34 of IPC.

Case of the prosecution in brief is that accused No. 1 is the husband of deceased Veeramma. Their marriage was performed about two years prior to the incident in question. Accused No. 2 is the mother-in-law of the deceased and accused No. 3 is the sister-in-law of the deceased. All the accused as well as the deceased were living under one roof after the marriage of the deceased with accused No. 1. The accused were suspecting the fidelity of the deceased; they used to warn the deceased and used to tell her that she should not go outside the house and should not talk with anybody; the accused Nos. 1 and 2 used to consume alcohol and quarrel with the deceased on one pretext or the other; accused No. 3 also used to quarrel with the deceased on petty matters.

At about 10.00 p.m. on 28.2.2010, accused Nos. 1 and 2 had consumed alcohol as usual; they started quarrel with the deceased; accused No. 2 poured kerosene on the deceased and accused No. 1 lit her on fire; accused No. 3 was a mute spectator; the victim raised hue and cry and consequently, the neighbours (P.Ws. 1 to 4 and others) came to the scene of offence and extinguished fire; accused No. 1 also seems to have sustained injuries in the said incident and he was admitted to the hospital. The victim was admitted to hospital at about 00.30 hrs. on 1.3.2010; the requisition was sent to Taluka Executive Magistrate for recording the dying declaration. Accordingly, P.W. 12 - the Taluka Executive Magistrate came to the hospital and recorded the statement of the victim as per Ex. P7 from 1.45 a.m. to 2.25 a.m. on 1.3.2010, based on which, Crime No. 22/2010 came to be registered by the Sub-Inspector of Police (P.W. 14), Vidyaranyapura police station, Mysore. However, the deceased succumbed to the injuries at 10.20 p.m. on 4.3.2010 and consequently, Section 302 of IPC is included in the crime. The Inspector of Police (P.W. 13) completed the investigation and laid the charge sheet.

The prosecution has relied upon the evidence of 15 witnesses and got marked 16 documents and 3 material objects. On behalf of the defence, no witness is examined. As aforementioned, the trial Court has convicted all the accused for the offences punishable under Sections 302, 498(A) r/w Section 34 of IPC.

Sri. M. Sharass Chandra, learned advocate appearing on behalf of the appellants taking us through the entire material on record submits that absolutely no material is forthcoming against accused No. 3, in as much as, she was just aged about 16 years and no overt acts are attributed by the prosecution against her; merely because she was residing in the house at the time of incident and merely because she is the sister of accused No. 1 she should not have been arrayed as accused by the investigation officer, particularly, when the material collected does not show the overt acts of accused No. 3; the evidence of P.Ws. 1 to 5 clearly reveal that accused No. 2 is innocent, in as much as, all these witnesses including the near relatives of the deceased have specified that accused No. 1 had grouse against the deceased and that it is he who committed the murder; though some of these witnesses are treated as hostile and are cross-examined by the Public Prosecutor, they have withstood in their cross-examination and have deposed that accused No. 2 is innocent. He further submits that the dying declaration Ex. P7 recorded by the Taluka Executive Magistrate is in the printed form, which shows the non-application of mind on the part of Taluka Executive Magistrate; Ex. P7 discloses that the same is mechanically recorded though the material on record clearly reveals that the victim was not in a position to give such a lengthy statement as found in Ex. P7. On these among other grounds, he prays for acquittal of the accused.

Per-contra, Sri. Chetan Desai, learned Government Advocate has argued in support of the judgment of the Court below.

P.Ws. 1 and 2 are the relatives of deceased Veeramma. They have supported the case of the prosecution.

P.Ws. 3, 4 and 8 are the neighbours residing in the nearby houses. P.Ws. 3 and 4 have supported the case of the prosecution whereas, P.W. 8 has turned hostile to the case of the prosecution.

P.W. 5 is the brother of the deceased. He has deposed about the harassment by the accused more particularly, by accused No. 1.

P.W. 6 is the witness for scene of offence mahazar Ex. P2.

P.W. 7 is the Doctor attached to the hospital wherein the victim was admitted and took treatment till her death. He made an endorsement on Ex. P7, the dying declaration, about the fitness of the victim to make statement. He has deposed before the Court that victim was in a fit condition to make statement.

P.W. 9 is the police constable and P.W. 10 is the Assistant Sub-Inspector of Police. Both of them have apprehended the accused.

P.W. 11 is the Sub-Inspector of police. He added Section 302 in the crime after the death of the deceased.

P.W. 12 is the Taluka Executive Magistrate. He recorded the dying declaration Ex. P7 in the hospital from 1.45 a.m. to 2.25 a.m. on 1.3.2010.

P.W. 13 is the Inspector of police. He completed the investigation and laid the charge sheet.

P.W. 14 is the Sub-Inspector of Police. He received the copy of the dying declaration Ex. P7 and based on the same, he registered Crime No. 22/2010 for the offences punishable under Sections 307 and 498(A) of IPC against all the three accused.

P.W. 15 is another Investigating Officer. He investigated the crime in part.

P.Ws. 1 to 4 are the neighbours. Immediately after hearing the cries of the deceased, they rushed to the spot and extinguished the fire. On being asked by P.Ws. 1 to 4, the victim had told before them that it was accused No. 1 who poured kerosene on her and lit her on fire. Among them P.Ws. 1 and 2 are relatives. Since P.Ws. 1 to 4 in their deposition before the Court did not implicate either accused No. 2 or accused No. 3, they were treated as hostile witnesses only to that extent and the Public Prosecutor cross-examined P.Ws. 2 to 4. Despite lengthy cross-examination by Public Prosecutor, these witnesses reiterated that the victim had told before them about the complicity of accused No. 1 only and that she has not stated anything against accused Nos. 2 and 3. The statements of these witnesses, recorded by the police during the course of investigation, were confronted to these witnesses, but P.Ws. 2 to 4 have denied of they making such statement before the police during investigation. Curiously, though P.W. 1 also in his examination-in-chief has confined his evidence as against accused No. 1 only, he is not treated as hostile witness by the prosecution and he is not cross-examined. It is also relevant to note that P.Ws. 2 to 4 also have deposed only against accused No. 1 in their examination-in-chief, which has remained practically uncontroverted. Having gone through the evidence of P.Ws. 1 to 4 meticulously and carefully, we are of the clear opinion that these witnesses have confined the prosecution to accused No. 1 only and not against accused Nos. 2 and 3.

P.W. 5 is none other than the brother of the deceased. He came to the hospital after hearing the news. Though he has deposed against accused that quarrels used to take place between the deceased and accused on petty matters, his evidence is not specific with regard to the harassment. In the examination-in-chief itself P.W. 5 has admitted that when he went to see his sister, she was in the hospital and she was taking treatment; on being asked by P.W. 5, the deceased told him that it was her husband (accused No. 1) who poured kerosene and set her ablaze. Thus, the oral dying declaration made by the victim before P.W. 5 also discloses that it was accused No. 1 who was responsible for the crime in question and that accused Nos. 2 and 3 are innocent.

P.W. 2 is none other than the maternal uncle of the deceased. Since the deceased did not have parents, P.W. 2 used to take care of the victim; he got the marriage of the deceased performed with accused No. 1. He has also deposed that the accused No. 1 used to quarrel with the deceased, in as much as, he used to come to the house by consuming alcohol and used to quarrel with her. The dying declaration made by the deceased in front of P.W. 2 also confines the case of the prosecution to accused No. 1 only.

P.W. 4 is the elder in the community. He used to conduct panchayaths whenever disputes arose from among the community members. He has also deposed that deceased and accused No. 1 used to quarrel frequently. It is no doubt true that accused Nos. 2 and 3 also quarreled with the deceased on few petty matters. He has also deposed that the victim made oral dying declaration before him implicating accused No. 1 only.

Though the evidence of P.Ws. 1 to 5 who are the relatives and neighbours of the deceased implicates accused No. 1 only, the dying declaration Ex. P7 made by the victim in the hospital during the course of treatment implicates accused Nos. 1 and 2, but not accused No. 3. Ex. P7, the dying declaration merely states that accused No. 3 was a mute spectator and no overt acts are attributed against her. Thus, the dying declaration Ex. P7 corroborates the testimony of P.Ws. 1 to 5 with regard to the innocence of accused No. 3. However, the versions of P.Ws. 1 to 5 conflicts with the dying declaration Ex. P7 recorded in the hospital by the Taluka Executive Magistrate.

We do not find any ground to suspect the case of the prosecution that the victim made dying declaration as per Ex. P7, in as much as, the same is supported by the version of the Taluka Executive Magistrate (P.W. 12) and the version of Doctor (P.W. 7) who issued the certificate regarding fitness of the victim while recording the dying declaration. P.W. 7 and P.W. 12 have fully supported the case of the prosecution before the Court by deposing that the victim was in a fit condition to make statement. Moreover, the dying declaration is recorded within about one and half hours of the admission of the victim to the hospital and within about four hours of the incident. Therefore, in our considered opinion, the prosecution has proved that the victim has made the dying declaration as per Ex. P7.

The oral evidence tendered by P.Ws. 1 to 5 before the Court has been reiterated during their cross-examination that the victim had told before them orally immediately after the incident, about the complicity of accused No. 1 only which has practically remained uncontroverted. However the versions of P.W. 1 to 5 conflict with the version found in the dying declaration Ex. P7 with regard to complicity of Accused No. 2. In view of such conflicting versions relating to complicity of accused No. 2 in the crime and as there is no other material to show that the evidence of P.Ws. 1 to 5 exonerating accused No. 2 is false, we are of the opinion that the safest course to be adopted in the matter is to give benefit of doubt in favour of accused No. 2. Since it is the duty of the prosecution to prove its case beyond reasonable doubt and as the material on record with regard to complicity of accused No. 2 in the crime is shaky and conflicting, accused No. 2 is entitled to get the benefit of doubt.

In view of the above, we conclude that though the trial Court is justified in convicting accused No. 1 for the offences with which he is charged, it is not justified in convicting accused Nos. 2 and 3. We have already described supra that absolutely no material is forthcoming against accused No. 3 whereas, conflicting versions are found as against accused No. 2. In view of the same, accused Nos. 2 and 3 shall be given benefit of doubt and consequently they shall be acquitted. Accordingly, the following order is made:

(a) Appeal is allowed in part.

(b) The judgment and order of conviction passed by the trial Court convicting accused No. 1 (Sri. Rangaswamy @ Dore) for the offences punishable under Sections 498(A) and 302 of IPC stands confirmed. The sentence of imprisonment and fine imposed on accused No. 1 by the trial Court also stands confirmed. The sentences shall run concurrently.

(c) The judgment and order of conviction passed by the trial Court convicting accused Nos. 2 and 3 (Smt. Madamma and Kum. Sumithra) for the offences punishable under Sections 498(A) and 302 r/w Section 34 of IPC stands set aside. Accused Nos. 2 and 3 are acquitted of all the charges leveled against them.

(d) Since accused No. 2 (Smt. Madamma) is in custody, she shall be set free forthwith, if not required in any other case.

(e) Bail bond of accused No. 3 (Kum. Sumithra) stands cancelled.

Operative portion of this order shall be communicated to the Prison Authorities forthwith, for appropriate action in respect of accused No. 2 (Smt. Madamma).