State of Karnataka vs Mahadevamma and Others

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 24.2.2011 passed by the V Additional Sessions Court, Mysore, in SC. No. 268/2009 is called in question in this appeal by the State.

Case of the prosecution in brief is that the second accused-second respondent herein is the husband of the deceased Pavitha; their marriage was performed in Sri Parashuram Temple, Nanjangud on 23.7.2008 accused No. 1-respondent No. 1 herein is the mother of accused No. 2, who is the mother-in-law of the deceased Pavitra; that the accused had demanded a sum of Rs. 25,000/- as dowry at the time of marriage and such demand was met by the parents of the deceased; after the marriage, Pavitra started living in her matrimonial house along with both the accused; on 26.10.2008, when Pavitra had come to her parents'' place, she had complained that both the accused were torturing her to bring additional amount of dowry of Rs. 10,000/-; however, Pavitra was pacified by her mother(PW.1) and was sent back to her husband''s place; even then, the harassment by the accused continued; on 3.4.2009, both the accused once again tortured the victim Pavitra by pressurizing her to bring Rs. 10,000/- from her parents'' place; Pavitra in turn called her elder sister Geetha over phone and intimated her that the accused are harassing her and consequently Geetha who was staying in her matrimonial house along with her husband in turn called the mother of Pavitra (PW.1) over phone and informed her to go to matrimonial house of Pavitra to pacify the quarrel; when PW.1 and other relatives went to Pavitra''s house, they came to know that Pavitra has sustained burn injuries and was admitted to H.D. Kote Government Hospital; PW.1 and others went to H.D. Kote Government Hospital from where the victim was shifted to K.R. Hospital, Mysore, but on the very day, i.e., on 3.4.2009 at about 9.45 p.m., Pavitra succumbed to burn injuries at K.R. Hospital, Mysore.

While the injured Pavitra was taking treatment in H.D. Kote Government Hospital, her statement was recorded as per Ex. P11 by the Sub-Inspector of Police of H.D. Kote Police Station (PW.30) in the presence of the doctor-PW.8 on 3.4.2009 between 5.40 p.m. and 6.15 p.m. As aforementioned, the incident has taken place at about 3.00 p.m. on 3.4.2009, i.e., on the very day. Based on the statement of the victim Pavitra, Crime No. 90/2009 came to be registered in H.D. Kote Police Station for the offences punishable under Section 498A and 323 of IPC. Subsequently, two more statements of the victim were recorded vide Ex. P16 and P17 in K.R. Hospital by the Taluka Executive Magistrate (PW.13) on 3.4.2009. However, no certification from the doctor to the effect that victim was in fit condition to make statements as per Exs. P17 and P18 is not obtained. Even the time of recording of the said statements by the Taluka Executive Magistrate is not mentioned on Exs. P17 and P18.

When the facts stood thus, the mother of the victim (PW.1) gave one more complaint as per Ex. P1 at about 11.50 a.m. on 4.4.2009, i.e., on the next date of the death of the deceased Pavitra, based on which offence punishable under Section 304B r/w. Section 34 is added to the crime. PW.29, the Deputy Superintendent of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 30 witnesses and got marked 34 Exhibits and 12 Material Objects. On behalf of the defence, 9 Exhibits were got marked. The trial Court on evaluation of the material on record, acquitted the accused by giving benefit of doubt in favour of them.

Sri Keshava Murthy, learned SPP-II appearing for on behalf of the State taking us through the material on record, submits that the case of the prosecution mainly depends upon the evidence of PWs. 1 to 3 and three dying declarations recorded as per Exs. P11, P16 and P17. He further submits that the trial Court is not justified in acquitting the accused, particularly accused No. 1 against whom ample material is found. According to him, the reasons assigned and the conclusions arrived at by the trial Court are not proper and correct.

Sri Somashekhar Angadi, learned amicus curiae per contra argued in support of the judgment of the Court below.

PW.1 is the mother of the deceased. PWs. 2 and 3 are the sisters of the deceased. All these three witnesses have deposed that an amount of Rs. 25,000/- was given to the accused by the parents of the deceased at the time of marriage since the accused demanded the said amount of dowry; since the parents of the deceased were poor, they had raised loans from third parties in order to satisfy the demand of dowry by the accused; even after the marriage the accused started torturing the deceased pressurizing her to bring additional amount of Rs. 10,000/-; since the said demand was not met by the parents of the deceased, the torture on the victim continued and on the date of the incident, being intolerant, the victim Pavitra committed suicide by setting her ablaze after pouring kerosene.

In her cross-examination, PW.1 has admitted that herself and her husband were coolies; even just prior to the incident in question, they were working as coolies at Chandagala Village, they were residing in a shed in the land of one Mr. Puttaswamy; accused No. 2 used to visit their house even prior to marriage; she had come to know about the love affair between the deceased and accused No. 2 prior to the marriage; the family members of the deceased wanted to perform the marriage with another boy; the deceased however could not agree to marry anybody except accused No. 1. PW.1 has admitted that she was opposing the marriage of the deceased with accused No. 1 and since the deceased did not agree to depart the company of accused No. 2, PW.1 had become angry against the deceased.

It is further admitted by P.W.1 that the elders in the village did not agree to postpone the marriage of deceased with accused No. 2 inasmuch as they were in deep love with each other and consequently, the marriage of the deceased with the second accused was performed in the temple in a simple manner. However, she has deposed that it was agreed between the parents of the accused No. 2 and parents of the deceased that both the parties should share the marriage expenses and they had shared the marriage expenses accordingly. Despite the same, the accused had demanded Rs. 25,000/-. It is further deposed by P.W.1 that deceased and accused No. 2 used to come to her house and stay; even when the deceased had come to the house of her parents in and around Deepavali Festival, she was happily residing with her parents and after the Deepavali Festival, accused No. 2 took the victim back to the matrimonial house. From that day onwards, P.W.1 did not go to the house of her daughter - that is the deceased till her death. It is P.W.1 that has deposed that accused No. 1 being the mother-in-law of the deceased had purchased a mobile phone and she had gifted the same to the deceased and consequently, the deceased used to talk with P.W.1 and her sisters by using such mobile phone of accused No. 1. A suggestion is made by the defence that the accused No. 1 was merely pressurizing accused No. 2 and the victim to go for work inasmuch as they were not working at all. Though such suggestion is denied by P.W.1, it appears that the said suggestion is probable in the facts and circumstances of the case, particularly having regard to the status of the parties. Through P.W.1, Ex. D3 is marked which reveals that the victim was not in a position to make statement when she went along with her relatives to K.R. Hospital to see the deceased. Certain material omissions are brought on record by the defence during cross-examination of P.W.1.

From the afore mentioned material, it is clear that the accused were living with the deceased all through. There may be some instances which are usual in poor families inasmuch as the mother-in-law of the deceased was pressurizing her to go for work along with the accused No. 2. The material on record reveals that accused No. 1 was under loan to the tune of Rs. 10,000/- inasmuch as the said amount was spent by her in the marriage of accused No. 2 with the deceased and in order to repay the said amount, she was suggesting accused No. 2 and the deceased to go for work. The admissions made by P.W.1 clearly reveal that both the accused were happily living with the deceased in the matrimonial house except quarrelling on certain minor issues.

The evidence of P.Ws. 2 and 3 is almost on par with the evidence of P.W.1. Looking to the evidence of P.Ws. 1 to 3, we are of the opinion that no incriminating material is brought out against any of the accused for any of the offences for which they are charged.

The prosecution mainly relies on three dying declarations - Exs. P.11, 16 and 17. Admittedly, the incident has taken place at about 3 p.m. on 03.04.2009 and she has died at about 4.15 p.m in K.R. Hospital Mysore. Immediately after the incident at 3 p.m., the victim was taken to H.D. Kote Hospital and she was admitted in the said Hospital at 3.15 p.m. A medico legal intimation was sent by the Hospital authorities to the jurisdictional police and consequently, P.W.30 being the sub-inspector of police of H.D. Kote Police Station rushed to the Hospital and recorded the statement of the victim as per Ex. P.11. Thus, Ex. P.11 is the earliest version of the victim recorded by the police in the presence of Doctor - P.W.8.

Ex. P. 11 clearly reveals that after the marriage the accused and the deceased were living happily in the matrimonial house; few days prior to the date of incident accused No. 1 - Mahadevamma used to tell the deceased and accused No. 2 that she has spent Rs. 10,000/- towards the marriage expenses and that the loan she had raised is not repaid by her; accused No. 1 was forcing the accused No. 2 to repay the said loan; whenever the deceased used to intervene for pacifying the quarrel between accused No. 1 and 2, she was also being scolded by accused No. 1; in the night of 02.04.2009 once again, the quarrel took place between the accused 1 and 2 inter se on the very subject and that at that point of time, the accused No. 1 suggested accused No. 2 and deceased to live separately and that they should not live with accused No. 1. So saying accused No. 1 assaulted the deceased with hands on her stomach and body. At about 3 p.m. on 03.04.2009, accused No. 1 started telling that in case the amount of Rs. 10,000/- is not repaid by accused No. 2 and the deceased, she would commit suicide. At that point of time, the deceased told accused No. 1 that instead of accused No. 1 dying, she herself would die and so saying she set herself ablaze after pouring kerosene. Even the dying declaration - Ex. P.11 clearly reveals that the death of the deceased was not due to the harassment by any of the accused, but it is a self created problem of the deceased. The parties are coolies. It is but natural for the elders in the family to tell the youngsters to go for work in order to repay the loan amount and for that reason generally family members should not get themselves annoyed. Merely on the said ground, it seems that the deceased being over sensitive committed suicide by pouring kerosene on herself and setting ablaze. In order to prove Ex. P.11, the sub-inspector of police P.W.30 who recorded the statement and Doctor -P.W.8 who have recorded the statement are examined. P.W.30 - sub-inspector of police has clearly deposed that on getting the memo from the Hospital authorities, he rushed to the Hospital and recorded the statement of victim as per Ex. P.11 in the presence of P.W.8 and at that point of time, victim was in a fit position to make statement. The evidence of P.W.30 is fully supported by the evidence of P.W.8 - Doctor, who has deposed before the Court that the victim was in a fit condition to make statement. He has also issued the letter - Ex. P. 10 to the police officers of COD to show that the victim was in a fit condition to make statement. Be that as it may. Since nothing is found to disbelieve the version of P.Ws. 30 and 8, particularly when both of them are independent officers of the State, we do not find any ground to reject the dying declaration - Ex. P.11 which has come on record at the earliest point of time. It is not in dispute that while recording Ex. P.11 none of the relatives of the deceased were present. The mother of the deceased and her relatives came belatedly to H.D. Kote Hospital for seeing the victim. Thus, it is clear that Ex. P.11 is a document which is relied upon both by the prosecution as well as the defence by the Court. There was no chance of tutoring the deceased also.

Per contra Exs. P.16 and 17 are said to have been recorded in the K.R. Hospital, Mysore. Both of them are stated to have been recorded in the evening prior to the death of the deceased. We do not find any record of treatment maintained by the K.R. Hospital, Mysore. As aforementioned at 3.15 p.m., on 03.04.2009 the statement of the victim was recorded as per Ex. P. 11. Subsequently she was taken to K.R. Hospital for treatment. The distance between H.D. Kote and K.R. Hospital Mysore is about 35 to 40 kms and it may consume about 1 hour journey. Therefore, it can be presumed that the victim must have been taken to K.R. Hospital, Mysore at about 4.15 or 4.30 p.m. on 03.04.2009. The death memo - Ex. P.34 clearly reveals that the victim succumbed to the burn injuries at 4.15 p.m which means that the victim was practically brought dead to K.R. Hospital, Mysore. Ex. D.3 which is marked in the cross-examination of P.W.1 - mother of the victim clearly reveals that the victim was not in a position to make any statement when she was admitted to H.D. Kote hospital and in K.R. Hospital. Therefore, it appears Exs. P.16 and 17 are created by the prosecution only to suit their purposes.

Be that as it may. We do not find any incriminating material even in Exs. P.16 and 17. Both the documents also reveal that the victim was over sensitive and she did not tolerate the abusive words used by the accused No. 1 against the deceased as well as her parents. However, the prosecution has tried to implicate the accused No. 2 also in the crime through Exs. P.16 and 17. This version found in Exs. P.16 and 17 appears to be completely after thought inasmuch as the same runs contrary to the version found in Ex. P. 11. Moreover though Exs. P.16 and 17 are stated to have been recorded in District Hospital Mysore by the Taluka Executive Magistrate, neither the dying declarations -Exs. P.16 and 17 nor the evidence of P.W.13 - Taluka Executive Magistrate reveal as to what time the said dying declarations were recorded. There is nothing on record to show that the victim was in a position to make a statement during the relevant point of time; absolutely no reasons are forthcoming as to why Taluka Executive Magistrate did not take the assistance of the Doctor for certifying about the fitness of the victim. We have already mentioned supra that none of the doctors of the K.R. Hospital, Mysore which is a District Hospital has certified about the fitness of the victim while recording the dying declarations - Exs. P.16 and 17. In the light of such material on record, in our considered opinion the trial Court is justified in disbelieving the dying declarations - Exs. P.16 and 17 as well as the version of the Taluka Executive Magistrate. We find that the version of P.W.13 - Taluka Executive Magistrate before the Court is casual.

In view of the above and having regard to the reasons assigned by the trial Court, we are of the opinion that it is not a fit case to interfere with the judgment of the trial Court. Even on reconsidering the material on record, we do not find any material to disagree with the opinion of the trial Court, in the facts and circumstances of the case. Hence, no grounds are available to interfere in the findings given by the trial Court.

The appeal is accordingly dismissed.

We place on record the valuable services rendered by the amicus curiae. The registry is directed to pay Rs. 10,000/- to the learned amicus curiae as honorarium.