State of Karnataka vs Lalasab

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 05.01.2011 passed on the Sessions Case No. 18/2010 by the Sessions Court, Bagalkot is called into question in this appeal by the State.

The respondents/accused were charged and acquitted of the offences punishable under Sections 498(A), 302, 304(B) r/w. 34 of IPC and Section 4 of the Dowry Prohibition Act.

The case of the prosecution in brief is that the deceased Reshma married accused No. 1 Lalsab about six years prior to the date of the incident; accused Nos. 2 and 3 are father and mother of accused No. 1; accused No. 4 is the grand-mother of accused No. 1 (accused Nos. 2 and 4 have expired as of now); after the marriage, all the accused started demanding additional amount of dowry from the parents of the deceased; since such demand was not met by the parents of the deceased, the accused started torturing the deceased both physically and mentally; ultimately at 6.00 p.m. on 07.06.2009 all the accused held the deceased in the matrimonial house, poured kerosene on her and set her on fire; the victim Smt. Reshma raised hue and cry and immediately thereafter the neighbours came to the scene of offence and shifted injured Reshma to hospital after extinguishing fire; the statement of victim Reshma was recorded in the hospital on 08.06.2009 at 4.00 p.m. by the Sub-Inspector of Police (PW 13) in the hospital as per Ex. P20; based on such statement of Reshma, Crime No. 88/2009 came to be registered against all the accused. The police laid the charge sheet after completing the investigation. The victim succumbed to injuries on 29.06.2009 while she was taking treatment at hospital in Bagalkot.

Charge came to be framed against all the accused for the offences punishable under Sections 496-A, 302, 304 r/w. 34 of IPC and Section 4 of the Dowry Prohibition Act. In order to prove its case, the prosecution in all examined 17 witnesses and got marked 22 exhibits. On behalf of the defence, no witness is examined, however one exhibit is got marked. The Trial Court on evaluation of the material on record and after hearing, acquitted the accused of all the charges levelled against them.

Sri. C.S. Patil, Government Advocate appearing on behalf of the State taking us through the material on record and the judgment of the court below submits that the Trial Court is not justified in ignoring the evidence of PWs. 10, 11 and 12 who are the Taluka Executive Magistrate and the doctors; the court below has wrongly brushed aside Ex. P6-the dying declaration recorded by the Taluka Executive Magistrate-PW. 10 in the presence of the doctor PW. 12; there is nothing on record to suspect the veracity of the victim as found in Ex. P6 and therefore the judgment of the Trial Court is liable to be reversed. He further submits that the appreciation of evidence by the court below is improper and incorrect.

Per contra, Sri. B.S. Patil, learned counsel appearing on behalf of the respondents argued in support of the judgment of the court below. He draws the attention of the Court as to how the police have concocted the case from stage to stage.

PW. 1 is the mother of the deceased; PW. 2 is the cousin of deceased Reshma; PW. 3 is the father of the deceased; PW. 4 is the neighbour of the deceased; PW. 5 is also one of the neighbours of the deceased. All these witnesses have neither deposed about the alleged ill-treatment by the accused meted towards the deceased nor have deposed about the complicity of the accused in the crime of alleged murder.

PW. 7 is the inquest pancha who is the witness for the inquest mahazar Ex. P1; PWs. 8 and 9 are the witnesses to the spot panchanama Ex. P3. PW. 10 is the Taluka Executive Magistrate who recorded the dying declaration as per Ex. P6. He visited the hospital after getting the written request from the police as per Ex. P4. According to him, he recorded the dying declaration in the presence of PWs. 11 and 12-doctors; PWs. 11 and 12 are the doctors working in the Bagalkot Hospital wherein victim was admitted. According to them, the dying declaration (Ex. P6) was recorded by PW. 10 as stated by the victim in the presence of the doctor-PW. 12; both of them have deposed that the victim was in a fit condition to make the statement. PW. 13 is the police officer who, on getting the MLC report visited the Bagalkot Hospital and recorded the statement of the victim as per Ex. P20 in the presence of the doctor (PW. 12). The said Ex. P20 itself is treated as first information report and Crime No. 88/2009 came to be registered by PW. 13. PW. 16 is the police constable who had carried the FIR to the Court. PW. 14 is one of the investigating officer who participated in investigation. PW. 17 also conducted further investigation into the matter. At last PW. 15 completed the investigation and laid the charge sheet against all the accused.

The case of the prosecution rests on evidence of PWs. 1 to 4 and the evidence of PWs. 10 to 12.

As aforementioned, PWs. 1 and 3 are the parents of the deceased; PW. 2 is the cousin of the deceased; PW. 4 is the neighbour of the deceased, none of these have deposed about the so-called ill-treatment meted against the victim by the accused. They have also not deposed about the alleged torture by the accused either prior to the incident or on the date of the incident. Not even a whisper is made by them that the accused committed murder of the deceased by pouring kerosene and setting her on fire. Per Contra they have deposed that it is a case of accidental fire. These witnesses are not treated as hostile by the prosecution in as much as their depositions are on par with their statements during investigation. They were not cross-examined by the Public Prosecutor, which means that the evidence of these witnesses is accepted by the State.

It is relevant to note that, even during the course of inquest panchanama Ex. P.1 the statements of parents of the deceased were recorded, wherein, they have clearly stated that, they don''t suspect anybody in the matter death of deceased.

What remains is the evidence of PWs. 10, 11 and 12. The evidence of these witnesses is no doubt consistent and cogent, however on going through the records meticulously, we find that the case is made out by the prosecution before the court appears to be doubtful.

Before proceeding further, it would be relevant to peruse the case-sheet maintained by the Bagalkot hospital wherein the victim was admitted immediately after the incident. As aforementioned, the incident has taken place at 6.00 p.m. on 07.06.2009, immediately thereafter she was taken to Mudhol Government Hospital at the first instance and thereafter at Bagalkot hospital which is a higher medical centre. She was admitted to Bagalkot Hospital at 7.00 p.m. on 07.06.2009. Despite the same, the police did not take any steps in respect of the medico-legal case as required in her. There is no material on record to show as to what has happened from 7.00 p.m. on 07.06.2009 till 4.00 p.m. on 08.06.2009. Absolutely no proceedings took place in the police station by the investigating officer. The case sheet maintained by the hospital discloses the history given by the patient herself. It is specifically stated in the case sheet that the history is given by the patient herself to the effect that she sustained flame burns at 6.00 p.m. on 07.06.2009 while she was at home. The victim, immediately after giving such a history, became unconscious. Even at the subsequent noting in the case sheet, it is mentioned that the history is given by the victim lady to the effect that she got burn injuries due to flames which are due to kerosene. The aforementioned history given by the patient makes us doubt the case of the prosecution in as much as at the first instance itself the victim has stated before the doctor that the accused are not connected with the bum injuries sustained by her and that it is a case of accidental burns. Nobody could have forced the injured victim to give such a history at the time of her admission to the hospital. Such a history must have been given by her with her free will and volition, which means it is an untampered and uninfluenced statement by the victim. Till next day, i.e., till 08.06.2009 upto 4.00 p.m., statement of the victim was not recorded though she was stated to have regained consciousness. Only at 4.00 p.m. on 8.6.2009 the PSI of the jurisdictional police station came to the hospital and recorded the statement of the victim as per Ex. P20 in the presence of the doctor-PW. 12, based on which the crime was registered.

Undisputedly, the parents of the victim have come to the hospital in the early morning of 08.06.2009. They were in the hospital along with the victim. Therefore, the subsequent statement given by the victim as per Exs. P20 & P6 will have to be viewed with suspicion.

Though Ex. P20-the statement recorded by the Sub-Inspector of Police at his instance discloses that the same is recorded in the presence of the doctor-PW. 12 and that the doctor has certified about the fitness of the victim to make statement, the said doctor-PW. 12 has not deposed about issuing such certificate at the time of the Sub-Inspector recording the statement as per Ex. P20. The document i.e., Ex. P20 is not even confronted to the doctor. If really, the doctor was present and that he had certified about the fitness of the victim to make the statement, he would not have missed to depose about the same before the Court, so also the prosecution would not have missed to confront the said document to the doctor. In this view of the matter, we are of the opinion that the investigating officer has tried to improve his case from time to time.

It is relevant to note that neither PW. 11 nor PW. 12 -the doctors have deposed as to when they sent the medico-legal intimation to the hospital or about the admission of the victim to the hospital to the police.

Ex. P6 is the so-called dying declaration recorded by the Taluka Executive Magistrate in the presence of the doctor. The father of the deceased i.e., PW. 3 has deposed in the examination-in-chief itself that immediately after the admission of the victim to the hospital they got information and they went'' to the hospital and saw the victim; the victim was not in a position to speak; she could able to speak about only after few days of the incident and after recovery from the illness. There is no reason as to why the version of PW. 3 should be suspected-he is father of the deceased. He was all through present with deceased in the hospital. Even the mother (PW. 1) of the deceased has deposed in the examination-in-chief that the victim was in a precarious condition and that she did to see her daughter at all in as much as the victim was taking treatment in the hospital. Subsequently, she came to know that the victim sustained burns due to the accidental fire. Contrary to this evidence is the version of PWs. 10, 11 and 12. It is no doubt true that PW. 10, 11 & 12 are the independent witnesses and are the responsible officers of the State. However having regard to the totality of the facts and circumstances, we are of the opinion that the Trial Court is justified in concluding that Ex. P6 is a brought up document. Ex. P6 runs to one full page. The Taluka Executive Magistrate has made an endorsement in Ex. P6 that the same is recorded in his presence. He has deposed before the Court that Ex. P6 is recorded by his deputy by name M.S. Doddamani. The said M.S. Doddamani is not examined before the court for the best reasons known to the prosecution. According to him, the victim narrated the entire incident on her own. He has further deposed that the left thumb impression of the victim is taken on Ex. P6. On the other hand, the PSI-PW. 13 who recorded Ex. P20 about one hour prior to the recording of Ex. PG has specified that he could not take the left thumb impression of the victim in as much as all the fingers of the victim were burnt and therefore he took the left toe impression of the victim on Ex. P20. Since the victim was not in a position to put her left thumb impression, it is strange as to how her left thumb impression was taken on the dying declaration-Ex. P6. The victim might not have narrated in detailed manner as found under Ex. P6 particularly when she had sustained serious injuries on the upper portion of her body. The record clearly reveals that the entire face including the lips were burnt. The Trial Court while rejecting Ex. P6 and the evidence of PWs. 10 and 12 has assigned valid reasons. Even on re-appreciation of the material on record we find that the reasons assigned by the Trial Court are just and proper for rejecting their evidence and Ex. P6.

Looking to the totality of the facts and circumstances of the case and after re-appreciating the material, we find that the view taken by the Trial Court is a possible view under the facts and circumstances of the case. It is now well settled that if the view taken by the Trial Court while acquitting the accused is one of the possible views, then the appellate court would be slow in interfering. Be that as it may, even on re-appreciation, we do not find any ground to interfere in the judgment and order of acquittal under the facts and circumstances of the case. Hence, appeal fails and the same stands dismissed.