State vs Siddaramu and Others

Mohan M. Shantana Goudar, J—The judgment and order dated 12.4.2012 passed by the Fast Track Court, Ramanagara in S.C. No. 99/2008, is called in question in this appeal by the state.

The accused-respondents were tried for the offences punishable under Sections 498A, 302, 304 r/w. Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act. The trial Court acquitted accused No. 2 of all the offences with which she was charged. Accused No. 1 is also acquitted for the offences punishable under Sections 302, 304 r/w. Section 34 IPC and Section 3 and 4 of Dowry Prohibition Act. However, he is convicted for the offence punishable under Section 498A of IPC and is sentenced to undergo imprisonment for a period of three years.

Case of the prosecution in brief is that the marriage of the deceased Lakshmi with accused No. 1 was solemnized on 18.6.2001 as per Hindu custom; accused No. 2 is the mother of accused No. 1; after the marriage, deceased Lakshmi started living in her matrimonial house; accused No. 1 was addicted to bad habits and the money earned by him was not sufficient to cater his bad habits and hence, he started demanding his wife Lakshmi to get money from her parents'' place; he used to harass the victim both physically and mentally; panchayats were convened; the disputes even reached the Police Station; however the couple was pacified and the deceased was sent to her matrimonial house; thereafter, accused Nos. 1 and 2 started subjecting the deceased to cruelty both physically and mentally by demanding money frequently; the family members of the deceased, including PW.1 Shankaraiah used to advise the accused not to torture the deceased and to look after her properly; despite the same, the conduct of the accused did not improve; at about 8.00 p.m. on 30.5.1995, the accused quarrelled with the deceased Lakshmi by pressurizing her to bring money from her parents'' house; accused No. 1 poured kerosene on the victim Lakshmi and lit her on fire, consequent upon which Lakshmi sustained burn injuries all over her body to an extent of 90% to 95%; immediately the victim was taken to General Hospital, Channapatna by her brother Shankaraiah (PW.1) wherein she was administered first-aid; while in General Hospital, Channapatna, the intimation was sent to the jurisdictional police; PW.15, the Assistant Sub-Inspector of Police of Channaptna Rural Police Station came to the hospital and recorded the statement of the victim as per Ex. P7 in the presence of the doctor-PW.17; based on the said dying declaration at Ex. P7, Crime No. 140/2005 came to be registered in Channapatna Rural Police Station. The victim was shifted to Victoria Hospital, Bangalore at 1.15 a.m. on 31.5.2005; another dying declaration at Ex. P9 came to be recorded at about 9.20 a.m. on 2.6.2005 by Taluka Executive Magistrate in the presence of the doctor-PW.19 attached to Victoria Hospital; though Ex. P9 was recorded by the Taluka Executive Magistrate, it is stated to have been scribed by PW.15-Assistant Sub-Inspector of Channaptna Rural Police Station; the deceased breath her last at about 4.15 p.m. on 2.6.2005; PW.22, the Inspector of Police attached to Channaptna Rural Police Station completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 22 witnesses and got marked 22 Exhibits and two Material Objects. On behalf of the defence, two Exhibits were got marked. The trial Court as aforementioned, acquitted both the accused in respect of the offences with which they were charged. However, accused No. 1 is convicted for the offence punishable under Section 498A of IPC and he is sentenced to undergo imprisonment for a period of three years.

Sri. Vijayakumar Majage, learned Additional SPP, taking us through the materials on record and the judgment of the Court below, contends that the trial Court has erred in acquitting accused Nos. 1 and 2 in respect of the offences (except convicting accused No. 1 for the offence punishable under Section 498A of IPC). He further submits that the two dying declarations Exs. P.7 and P.9 would clearly reveal that accused No. 1 has poured kerosene and set her ablaze, consequent upon which the victim sustained burn injuries and therefore, he is liable to be convicted for the offence punishable under Section 302 of IPC. According to him, both the dying declarations are reliable and therefore, the prosecution has proved its case beyond reasonable doubt more particularly, in the light of the history recorded by the doctors while admitting the victim to the hospital under Ex. P.16.

Sri. Vageesh Hiremath, learned Amicus Curiae appointed on behalf of respondents-accused Nos. 1 and 2, however, has argued in support of the judgment of the Court below contending that both the dying declarations cannot be believed, inasmuch as both of them are as a result of tutoring by the family members of the deceased. He further draws the attention of the Court that the Taluka Executive Magistrate, who recorded the dying declaration Ex. P.9, has not been examined before the Court though cited in the charge sheet; no reason whatsoever is forthcoming as to why the important witness Taluka Executive Magistrate is not examined before the Court; there is no certification by the doctor relating to fitness of the victim at the time of recording Ex. P.7; the evidence under Ex. P.7 has no basis, inasmuch as the doctor has not certified that the victim was in a fit condition to make statement. He further draws the attention of the Court that the victim had sustained 90% to 95% burns. Even as per the evidence of the doctors P.Ws.17 and 19, the burns of the victim are on the entire body including face, mouth, neck, etc. and hence, the victim could not have been in a position to speak, much less to make lengthy dying declarations as found in Exs. P.17 and 19. On these among other grounds, he prays for dismissal of the appeal.

P.W.1 is the brother of the deceased; he came immediately to the spot after the incident; he shifted the victim to General hospital, Channapatna at the first instance and thereafter, to Victoria hospital Bengaluru; he was present while recording Ex. P.7; he has also furnished the history before the doctor; he has also deposed about the marriage talks, demand of money by accused and about harassment.

P.W.2 is wife of P.W.1; She has deposed about the aspect of harassment by the accused.

P.W.3 is uncle of the deceased. He has also deposed on par with the evidence of P.W.2.

P.Ws.4 and 6 are the witnesses participated in the marriage talks prior to the marriage of accused No. 1 with deceased. Both of them have turned hostile to the case of the prosecution.

P.W.5 is the doctor, who conducted post mortem examination over the dead body; Post mortem report is at Ex. P.2.

P.W.7 is the relative of deceased; he has also participated during marriage talks. He deposed about the demand and payment of dowry.

P.W.8 is witness for spot mahazar Ex. P.4; He has turned hostile.

P.W.9, who was supposed to depose about the aspect of harassment, has also turned hostile.

P.W.10 is the doctor working at Victoria hospital at the time of admission of the victim to Victoria hospital; he has admitted the patient in the hospital and recorded history as per Ex. P. 16.

P.W.11 is the Head Constable who participated in the investigation to certain extent.

P.W.12 is the purchaser of land from the mother of the deceased for valuable consideration; he has deposed that prior to the marriage of the deceased with accused No. 1, the mother of the deceased had sold agricultural land in his favour in order to meet marriage expenses.

P.W.13 is the witness for inquest panchanama Ex. P.5.

P.W.14 is the engineer who drew the sketch of scene of offence as per Ex. P.6.

P.W.15 is the Assistant Sub-Inspector of Police, Channapatna Police Station. He recorded Ex. P. 7, the statement of victim (first dying declaration) recorded between 11.30 p.m. and 12.00 a.m. (mid night of 30.5.2005) i.e., immediately after admission of victim to the hospital. Based on which crime No. 140/2005 came to be registered in Channapatna Police Station. After three days i.e., on 2.6.2005, he proceeded to Victoria hospital, Bengaluru and scribed Ex. P.9 (second dying declaration) as conducted by the Taluka Executive Magistrate in Victoria hospital in the presence of the doctor P.W.19.

P.W.16 is the Taluka Executive Magistrate. He conducted inquest proceedings. Inquest report is at Ex. P.5. He is not the Magistrate who recorded dying declaration Ex. P.9.

P.W.17 is Dr. Basavaraju attached to General Hospital, Channapatna. He administered first aid to the victim and was stated to be present at the time of recording dying declaration Ex. P.7 in General Hospital, Channapatna on 30.5.2015 at about 11.30 p.m. Thereafter, he referred the patient to Victoria hospital, Bengaluru.

P.W.18 is the Assistant Sub-Inspector of Police working in Victoria Hospital Police Station. He has deposed about Ex. P.13.

P.W.19 is Dr. Sadashivaiah working at Victoria hospital on 2.6.2005. He has deposed about the second dying declaration Ex. P.9 recorded by the Taluka Executive Magistrate in the hospital. He has further deposed that he has issued an endorsement as per Ex. P.15 that the victim was physically and mentally fit to make statement.

P.W.20 is another circumstantial witness who has deposed about the earlier disputes between accused No. 1 and deceased.

P.Ws.21 and 22 are the Inspectors of Police who investigated into the crime. P.W.21 has partly investigated the crime, whereas P.W.22 has completed the investigation and laid the charge sheet.

The evidence of P.Ws. 1, 2 and 3 amply reveals that all was not well in marital relationship between accused No. 1 and the deceased. The marriage of accused No. 1 and the deceased has taken place in the year 2001. The incident has taken place in the year 2005. No child was born out of the wedlock. Accused No. 1 has physically and mentally harassed the victim on one pretext or the other. He even used to harass her on the ground that the deceased was not cooking properly. P.W.1 has deposed meticulously about the harassment by accused No. 1 towards the deceased. P.W.20, an elderly person, aged about 55 years, has emphatically deposed that though the couple was happy for some period after the marriage, accused No. 1 started troubling the deceased by pressurizing her to bring money from her parents. The deceased used to complain of the attitude of accused No. 1 in front of her family members. She was complaining not only to her family members but also to certain elders of the village including P.W.20. In that regard, panchayats were held and P.W.20 had advised accused No. 1 frequently. The elders had even informed about the same to the jurisdictional police. In turn, the police intervened in the matter and advised accused No. 1 suitably in the presence of P.W.20 and the other villagers. Since family members of the deceased were not financially well off and as they had sold property for the purpose of marriage of deceased with accused No. 1, they were not in a position to pay money after marriage of deceased with accused No. 1. From the evidence of the witnesses P.Ws.1, 2 and 3 coupled with the evidence of P.W.20, it is clear that accused No. 1 used to regularly torture the victim both physically and mentally on one ground or the other more particularly by pressurizing her to bring money from her parents place. It is not in dispute that accused No. 1 was uneducated and not doing any work. However, suggestion is made that accused No. 1 is working as manual labour in a hotel doing washing utensils.

It is no doubt true that the prosecution has tried to put forth the case of dowry harassment. Such case of prosecution does not find support from the evidence on record. Ex. P1 is the complaint lodged by P.W.1, the brother of the deceased, against accused No. 1 before the jurisdictional police alleging harassment by accused No. 1 against the deceased prior to the incident. In the said complaint, it is specifically stated by P.W.1 that accused No. 1 was harassing the deceased on one pretext or the other, more particularly, by demanding money from her parents'' place. The material on record, in our considered opinion, is not sufficient to conclude that it is a case of dowry harassment, but, it is the case of harassment by accused No. 1 repeatedly pressurizing the victim to bring money from her parents'' place, which does not amount to dowry or arrears of dowry. It is also admitted by prosecution witnesses that marriage expenses were equally shared between the families of bride and bride groom. Therefore, the trial Court, in our considered view, is justified in concluding that it is not the case of dowry harassment, but it is the case of harassment by accused No. 1 for other reasons.

The case of prosecution with regard to complicity of accused No. 1 in the death of the deceased depends upon the two dying declarations as per Exs. P.7 and 9 and the evidence adduced by the witnesses with reference those two dying declarations. Ex. P.7 is recorded by P.W.15 Assistant Sub Inspector of Police, Channapatna Rural Police Station in the presence of P.W.17 Dr. Basavaraju at about 11.30 p.m. on 30.5.2005. The incident has taken place on 30.5.2005 at 8.00 p.m. Thereafter, the victim was taken to the hospital. After receiving the intimation, P.W.15 went to the hospital and recorded the statement of victim. Based on Ex. P.7, crime came to be registered. Even prior to lodging of the complaint, the history as per Ex. P.10 is recorded by the doctor P.W.17. It is stated in Ex. P.10 that burns are due to pouring of kerosene by her husband Siddarama at 8.30 p.m. in her house on 30.5.2005. It is also mentioned that the general condition of the patient is poor. However, the patient is conscious and oriented. P.W.17-Doctor has admitted in the cross examination that the victim was taken to hospital by her elder brother Shankaraiah and the said Shankaraiah had informed the doctor that the victim''s husband has poured kerosene and set her ablaze. It is further deposed by P.W.17 that likewise, the victim told before him that accused No. 1 poured kerosene and set her ablaze. It is specifically deposed by the said doctor that he has given certificate that the victim was in a position to make statement. In the cross examination, P.W.17 has admitted that nowhere in that regard, he has mentioned that the victim was in a position to make statement. However, on perusal of Ex. P.7, it is clear that there is no certification of the doctor (P.W.17) over dying declaration Ex. P.7. It is merely stated by the doctor that the statement is recorded before him. No endorsement is issued stating that the victim was in a fit condition to make statement. Dying declaration runs about 1 1/2 pages. It not only narrates the incident of pouring of kerosene and setting her ablaze, but also narrates the motive for commission of the offence, earlier lodging of the complaint and about harassment. Even the dates are specifically stated in the dying declaration as to what has happened during the said dates.

In this context, learned Amicus Curiae is justified in arguing that it may not be possible for the victim, who had suffered 90% to 95% burns over the body, which were of 2nd and 3rd degrees, to state the details of family history, harassment etc., while she was on death bed. The victim was almost on the death bed and she was under the state of shock. We would have believed the version of the dying declaration if the doctor had certified on the dying declaration that the victim was in a position to make statement. No such endorsement of the doctor is found. However, for the first time before the Court, the doctor has stated that the victim was in a fit condition to make statement.

Another dying declaration Ex. P.9 is stated to have been recorded by the Taluka Executive Magistrate in the presence of doctor P.W.19. It is the further evidence of P.W.15 Assistant Sub-Inspector of Police, Channapatna Rural Police Station that he has scribed the dying declaration in Victoria hospital, Bengaluru. Firstly, there is no reason as to why P.W.15 should be present at the time of recording dying declaration by the doctor in Victoria hospital, particularly, when P.W.15 is Assistant Sub Inspector of Police working in Channapatna Rural Police Station, which is about 80-90 kms. away from Bengaluru. Secondly, there is no reason as to why the Taluka Executive Magistrate should take assistance of Assistant Sub Inspector of Police of Channapatna Rural Police Station in scribing the dying declaration. Dying declaration is said to have been recorded at 9.15 a.m. on 2.6.2015. The Taluka Executive Magistrate was not incompetent to record in his own handwriting. He could have at the most taken help of his Assistant working in his office while recording the dying declaration. More over, in the matter on hand, the Taluka Executive Magistrate is not examined before Court for the best reasons known to the prosecution. Consequently, the defence did not have any opportunity to cross-examine the Taluka Executive Magistrate who allegedly recorded the dying declaration. According to P.W.15, he has scribed the dying declaration. But P.W.19 Doctor who certified about the fitness of the victim in Ex. P.9 has not deposed about the presence of P.W.15 while recording the dying declaration. On the other hand, P.W.19 has admitted that the statement of the victim was not recorded in his presence. It is no doubt true that certificate of the doctor is found on the top of the dying declaration. But the evidence of the doctor clearly reveals that he was not present when the statement of the victim was recorded. Consequently, the records furnished by the prosecution run contrary to the oral evidence. The evidence of P.W.15 to the effect that he has scribed Ex. P.9 dying declaration cannot be believed in view of P.W.19 Doctor''s version that it was the Taluka Executive Magistrate who recorded the dying declaration. For all these reasons, in our considered opinion, it needs to be held that the prosecution has not proved the two dying declarations as required under law. In our considered opinion, it may not be possible to rely upon the two dying declarations Exs. P.7 and 9 to bring home the guilt against accused No. 1 for the offence punishable under section 302 IPC.

Looking to the totality of the facts and circumstances of the case, we are of the considered opinion that the trial Court is justified in concluding the case as the case of suicide and not homicide. But, the victim would not have committed suicide on her own. The only reason for the victim to commit suicide was unbearable and continuous harassment by accused No. 1. We have already narrated supra as to how accused No. 1 used to torture the victim on day today basis. In that regard, panchayats were held and the complaints were lodged against him, not only by the victim, but also by her brother and the other villagers. Thus, it can safely be concluded that such intolerable harassment by accused No. 1 against deceased has led the deceased to commit suicide. Thus, it is a clear case of abetment by accused No. 1 for the suicidal death of the deceased. The incident has taken place within the matrimonial house wherein accused No. 1 was present. It was his duty to take the victim to the hospital for treatment. Instead of doing so, accused No. 1 absconded for about 3 years. He was arrested only on 18.4.2008 at 10.45 p.m. and produced before the court on 19.4.2008. It was P.W.1, the elder brother of the deceased, took the victim to the hospital immediately and tried to save her life. Nothing is explained by accused No. 1 in his statement under Section 313 of Cr.P.C. as to what made him to abscond without taking the victim to the hospital. We are curious to know as to why accused No. 1 could not be arrested even at the time of filing of charge sheet by the investigating officer. The charge sheet came to be filed by the police showing him absconding. All the aforementioned facts and circumstances would lead to only conclusion that accused No. 1 is liable to be convicted for the offence punishable under Section 306 of IPC. In our considered opinion, the trial Court is justified in acquitting accused No. 2. Absolutely, no allegations are found against accused No. 2. Merely because, she is the mother of accused No. 1, it seems that prosecution has arrayed her as accused No. 2. In the absence of any allegation, much reliable material against her, the trial Court is justified in acquitting accused No. 2 of all the charges against her.

Accordingly, the following order is made:

"(a) The judgment and order of acquittal, dated 12.04.2012 passed by the P.O., F.T.C., Ramanagara, in S.C. No. 99/2008 acquitting accused No. 2 of all the offences for which she was charged, is confirmed.

(b) The judgment and order dated 12.04.2012 acquitting accused No. 1 for the offences punishable under Sections 302, 304B read with Section 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act, is also confirmed.

(c) Accused No. 1 is convicted for the offence punishable under Section 306 of IPC. He is sentenced to undergo imprisonment for the period of six years for the said offence.

(d) Accused No. 1/respondent No. 1 is entitled to the benefit of set off as provided under Section 428 of Cr.P.C.

(e) The trial Court is directed to secure the presence of accused to undergo the remaining sentence.

(f) The appeal is allowed in part accordingly."

We place on record the valuable assistance rendered by Sri. Vageesh Hiremath, learned Amicus Curiae. The registry is directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to learned Amicus Curiae, as honorarium.