State of Karnataka vs Venkatesh

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 12.09.2011 passed by the Fast Track Court-VIII, Bengaluru in S.C. No. 964/2010 acquitting accused/respondent for the offences punishable under Sections 498(A) and 302 of IPC is called in question in this appeal.

Case of the prosecution in brief is that the accused is the husband of deceased Smt. Chennamma; he used to consume alcohol everyday; he used to torture the victim/his wife (Chennamma) since she was objecting to his bad habits; the accused raised huge loans and he did not repay the loans; on the date of incident i.e., on 20.04.2010 at about 7.00 p.m. when the accused and deceased only were there inside the house, in which time, their minor daughter Kumari Monica (P.W. 3) was playing outside the house, the accused quarrelled with the deceased once again, poured kerosene on her and set her ablaze. The neighbours extinguished fire and admitted the victim Chennamma to Victoria Hospital, Bengaluru; since the accused tried to extinguish fire, he had also sustained certain injuries on his hands. At about 10.15 p.m. on the very day i.e., 20.04.2010, the statement of Smt. Chennamma was recorded as per Ex. P-13 by the Assistant Sub-Inspector of Police, based on which Crime No. 100/2010 came to be registered in Hebbal Police Station, Benglauru, for the offences punishable under Sections 498A and 302 of IPC. Subsequently, another dying declaration as per Ex. P-9 came to be recorded on 21.04.2010 by the Taluka Executive Magistrate at about 4.30 p.m. Both the dying declarations were recorded in the presence of the doctors. The Inspector of Police (P.W. 18) laid charge sheet after completion of investigation.

In order to prove its case, the prosecution in all has examined 19 witnesses and got marked 22 exhibits and 3 material objects. On behalf of the defence, no witness is examined. The trial Court, on evaluation of the material on record as aforementioned, acquitted the accused for the offences punishable under Sections 498(A) and 302 of IPC.

Sri Chetan Desai, learned Government Advocate, appearing on behalf of the State taking us through the entire material on record submits that the reasons assigned and the conclusions arrived at by the Trial Court are not just and proper; the two dying declarations (Exs. P-13 and P-9) coupled with the evidence of doctors as well as the persons, who recorded the dying declarations, would amply prove the case of the prosecution; since the dying declarations are supported by the other attending circumstances and as the presence of the accused is not disputed the Trial Court is not justified in acquitting the accused. Per contra, Sri. Vageesh Hiremath, learned Amicus Curiae has argued supporting the judgment of the Court below.

P.W. 1 is the younger sister of the deceased; P.W. 2 is the son of the deceased and P.W. 3 is the daughter of the deceased. All the three witnesses have deposed that the deceased and accused were living happily; they never quarreled with each other; accused was not drinking alcohol; the deceased had illicit relationship with the third person, which was not liked by the accused; the accused used to advice the deceased suitably in that regard; however, the deceased used to tell the accused that she would continue her illicit relationship with anybody and that accused should not interfere. So saying that deceased set herself ablaze after pouring kerosene. Thus according to them, it is the case of suicide and that the accused is not responsible. All these three witnesses were treated hostile by the prosecution. They were cross-examined by the prosecutor, however, no useful evidence in favour of the prosecution come on record.

P.Ws. 4 to 6 are the witnesses for Ex. P.5 Panchanama. P.Ws. 4 and 5 have turned hostile to the case of prosecution. However, P.W. 6 has supported the case.

P.Ws. 7 and 8 are the neighbours. Both of them have turned hostile to the case of prosecution. Nothing is elicited by the prosecutor even while cross-examining them. Thus, the evidence of P.Ws. 7 and 8 is practically of no use. However, the evidence of P.Ws. 7 and 8 supports the case of defence that the deceased and accused were living amicably.

P.W. 9 is the doctor who issued death intimation letter as per Ex. P.8 to the concerned police.

P.W. 10 is the doctor attached to Victoria hospital. He issued fitness certificate and dying declaration (Ex. P.9) recorded on 21.4.2010 at 4.30 p.m.

P.W. 11 is the doctor who admitted the victim to the hospital at 9.20 p.m. on 20.4.2010. She has recorded the history as allegedly stated by the victim to the effect that the victim''s husband poured kerosene on her and lit fire after quarrelling with her in the house. The history at Ex. P. 11 (Accident Register) maintained by the doctor P.W. 11 shows that the victim was conscious and oriented; the victim had sustained burns all over the body including chest, face, back, upper and lower limbs etc. She issued intimation as per Ex. P.10 and the accident register as per Ex. P.11.

P.W. 12 is the Police Constable. He arrested the accused on 22.04.2010 at Gangenahalli, Bangalore. He has deposed that the accused had sustained injuries and his hands were bandaged.

P.W. 13 is the Assistant Sub-Inspector of Police. He recorded the first dying declaration (Ex. P.13) in the presence of the Doctor (P.W. 17).

P.W. 14 is another doctor. He conducted post mortem examination over the dead body. Ex. P. 14 is the post mortem report.

P.W. 15 is the Police Constable. He carried certain articles to Forensic Science Laboratory for examination.

P.W. 16 is the engineer. He drew the sketch of scene of offence as per Ex. P. 16.

P.W. 17 is the doctor who issued fitness certificate and recorded the dying declaration as per Ex. P.13.

P.W. 18 is the Investigating Officer. He completed investigation and laid charge sheet.

P.W. 19 is the Taluka Executive Magistrate. He recorded the second dying declaration (Ex. P.9) at 04:30 p.m. on 21.04.2010.

As aforementioned, the incident has taken place at 7:30 p.m. on 20.04.2010 in the matrimonial house of the accused and deceased. Though the married couple had two children namely Ramanjini (P.W. 2) and Kumari Monika (P.W. 3), Ramanjini was residing with his aunt i.e., P.W. 1. However P.W. 3 was living with her parents. At the time of incident, P.W. 3 was playing outside the house. The incident has taken place within the house. Undisputedly, it is the case of prosecution that accused had also sustained certain injuries in the accident. It is the further case of prosecution that the dress of the victim was changed immediately after the incident while she was being taken to the hospital.

P.W. 1 being the sister of the deceased, P.Ws. 2 and 3 being the children of the deceased and P.Ws. 7 and 8 being the neighbours of the deceased are the very important witnesses to prove the motive for commission of the offence and to know about the antecedents of the accused. None of these witnesses have deposed against the accused.

P.W. 1, the genitive sister of the deceased, had deposed before the Court that the deceased and accused were leaving amicably; the house of P.W. 1 was about half a kilometer from the house of the deceased and accused; the accused did not have the habit of consuming alcohol; he did not raise any loan; the accused and deceased jointly used to look after the family affairs and expenses; they never quarreled with each other. Immediately after hearing the news of the victim sustaining burn injuries, P.W. 1 rushed to the house of the deceased and at that point of time, the accused was pouring water on the body of the victim in order to extinguish fire and to save the life of the victim. Immediately after the incident, P.W. 1 and the accused took the injured to Victoria Hospital and admitted her; P.W. 2 (Ramanjini) also went along with P.W. 1 at the time of admission of the victim to the hospital. The prosecutor treated the victim as the hostile witness and he cross-examined P.W. 1.

In the cross-examination also, except making suggestion, the prosecutor did not venture to put any questions to get favourable answer in favour of the prosecution. In effect, the cross-examination by the prosecutor was of no use to the prosecution. However, in the cross-examination by the accused, P.W. 1 has admitted that immediately after the incident, the victim talked to her to certain extent and thereafter she fell unconscious; the victim did not talk in the hospital in as much as she was unconscious.

In the further examination by the accused, P.W. 1 has admitted that the deceased/victim used to become angry frequently; the deceased used to come to the house belatedly; whenever the accused asked the deceased about her coming late to the house, the deceased used to quarrel with the accused; one day, the accused saw the deceased going along with third person for watching movie and in that regard, accused had quarreled with the deceased; however, the deceased used to tell the accused that it is her wish and will to go with anybody elsewhere and that the accused should not interfere with her personal affairs. Even P.W. 1 as well as public at large were knowing about the infidelity of the victim. The deceased used to quarrel with the accused on the ground that she was not willing to live with him. She never liked to live with the accused; in that regard she committed suicide by setting herself ablaze. Immediately after the incident, P.W. 1 and the accused extinguished fire and the burnt clothes of the deceased were changed; and after wrapping that clothes, the victim was taken to the hospital. She has re-iterated in the further cross-examination that the deceased had sustained burn injuries on the face and on the entire body and she was not in a position to speak.

The version of P.W. 1 as mentioned supra is fully supported by the versions of P.Ws. 2 and 3 (children of the deceased and accused). They have also deposed that the accused and deceased were living amicably and they never used to quarrel; in the cross examination by the defence, P.W. 2 has admitted that when he came along with P.W. 1 to the place of incident, the accused was found extinguishing the fire by pouring water on the victim. The victim was unconscious while she was admitted to the hospital.

From the evidence of P.Ws. 1 to 3, it is amply clear that all of them have unequivocally deposed that the accused and the deceased were living amicably, and they never quarrelled with each other. The deceased did not have the good conduct and she used to go along with third person; she did not enjoy the matrimonial relationship with the accused as required; whenever the accused used to question, the deceased used to quarrel with the accused by telling that it is her will and wish to go elsewhere with anybody; since she did not intend to have marital life with the accused, she committed suicide.

The evidence of P.Ws. 7 and 8 (neighbours) also is of no use to the prosecution inasmuch as both of them have completely turned hostile to the case of prosecution. They neither support the case of prosecution nor support the defence of the accused. Consequently, it is clear that the evidence of P.Ws. 7 and 8 (neighbours) cannot be made use of against the accused.

In view of the above, it is amply clear that the case of prosecution fully rests on the dying declarations (Exs. P.9 and P.13). Both these dying declarations are supported by the versions of Assistant Sub-Inspector of Police (P.W. 13) and the Taluka Executive Magistrate (P.W. 19), who recorded the said dying declarations. So also both the dying declarations were supported by the fitness certificate issued by the doctors (P.Ws. 17 and 10) respectively. The doctors have made endorsement on the dying declarations that the victim was fit to make statement. They have also deposed so before the Court. Even the Taluka Executive Magistrate (P.W. 19) who recorded Ex. P.9 and Assistant Sub Inspector of Police (P.W. 13) who recorded the first dying declaration (Ex. P. 13) also have supported the case of prosecution that the victim was in fit condition to make the statement and that they have recorded the statement of the victim. Both the dying declarations also implicate the accused specifically inasmuch as the victim had declared in those dying declarations that it was the accused who poured kerosene on her and set her ablaze on the ground that she used to quarrel with him not to consume liquor and to clear the entire loan.

But looking to the entire material on record, more particularly the evidence of family members of the accused and the deceased, who rushed to the spot immediately after the incident and who shifted the victim to the hospital, it is not clear as to whether the endorsements of the doctors as found in dying declarations about fitness of the victim to make statement were correctly made or not. We have mentioned supra that P.Ws. 1 to 3 who are sister and children of the deceased have clearly admitted before the Court that the victim was not in a position to speak when she was admitted to hospital. Apart from the other factors, it is emphatically deposed by them about the fact that the victim was unconscious when she was admitted to the hospital. In the matter on hand, the prosecution has not placed the treatment sheets maintained by the hospital to know as to the exact health condition of the victim and to know as to the treatment given to her. In all fairness, the prosecution should have placed the medical records maintained by the hospital to know as to how the victim was treated in the hospital and as to whether she was really in a position to make statement as above in Exs. P.9 and P.13.

It is not in dispute that the victim had sustained 95% burns all over the body including face and limbs. Even if the victim sustains 100% burns, she may be able to talk. It all depends upon the facts and circumstances of each case and the health condition of the victim. However, looking to the versions of the family members who rushed to the spot immediately after the incident and who extinguished the fire and shifted the victim to hospital, it is clear that the victim was unconscious and not in a position to make the statement. This has to be viewed keeping in mind the absence of medical records pertaining to the treatment given to the victim. It is very difficult to suspect the versions of P.Ws. 1 to 3 that the victim was not in a position to speak and she was unconscious. It is by now well settled that the versions of the eye witnesses shall be preferred to that of version of the expert witness. The evidence of the doctor is merely of the opinion evidence and the same needs to be tested with all the other attending circumstances.

The presence of P.W. 1 immediately on the spot cannot be doubted inasmuch as her name finds place in the register maintained by the hospital at Ex. P.11. It is specified in Ex. P.11 maintained by the hospital that P.W. 1 admitted the victim to the hospital. If it is so, it is clear that P.W. 1 came to the hospital immediately and took victim to the hospital. The version as found in dying declaration (Ex. P.13) appears to be false inasmuch as it does not anywhere mention about the presence of P.W. 1 in the house immediately after the incident. However, it is stated in Ex. P.13 that P.W. 1 accompanied the victim to the hospital. The presence of P.W. 1 immediately after the incident is further fortified by the fact that the victim''s burnt clothes were changed and a different dress was put on her while she was being taken to the hospital by P.W. 1. It is specifically deposed by P.W. 1 that she got the dress of the victim changed in the house.

The version of P.W. 1 is supported by the doctor (P.W. 11) who admitted the victim to the hospital P.W. 11 has deposed that when the victim was admitted to the hospital, the victim was wearing clothes (which were not burnt). Though the entire body of the victim was burnt to the extent of 95%, the clothes worn by the victim was not burnt because they were changed by P.W. 1 immediately after the incident and after extinguishing fire. Therefore, the presence of P.W. 1 on the spot immediately after the incident cannot be doubted at all. If it is so, there is no reason as to why the Court below should disbelieve her version that the victim was not in a position to speak and that the victim was unconscious.

In the matter on hand, admittedly, even according to the prosecution, the accused had sustained injuries. It is also the case of the defence that accused was very much present and he tried to extinguish fire in order to save the life of the victim. It is further the defence of the accused that the victim was admitted to Victoria hospital and he had also took treatment. But surprisingly the prosecution has suppressed those materials. The investigating officer (P.W. 18) has not at all deposed about the accused sustaining the injuries in the incident, since it was incumbent upon the prosecution to explain the injuries on the accused. P.Ws. 1 to 3 have deposed about the accused sustaining the injuries. Even P.W. 12, (the independent witness) who apprehended the accused on 22.4.2010 has deposed in the examination in chief that the accused had sustained injuries and that his hands were bandaged. After apprehending the accused, took the accused to the investigating officer. However, the investigating officer did not produce the relevant records pertaining to the injuries sustained by the accused. Hence, learned Amicus Curiae is justified in arguing that the prosecution has suppressed the material facts. It seems that the prosecution has not come out with true facts before the court. It is relevant to note that the dying declaration (Ex. P. 13) makes a mention that the accused sustained the injuries in the very incident. In the light of these materials, it is clear that the investigating officer has not placed all the relevant records before the Court. On the other hand, the materials which are against the case of prosecution are suppressed by prosecution.

Having regard to the totality of the facts and circumstances of the case and on reconsideration of the entire material on record, we are of the opinion that the trial Court is justified in acquitting the accused. Though the reasons assigned by the trial Court while acquitting the accused are not adequate, the conclusion is just and proper. For the reasons mentioned by us in the aforementioned paragraphs, we are of the clear opinion that the view taken by the trial Court while acquitting the accused is one of the possible views which may be taken under the facts and circumstances of the case. No interference is call for. Appeal stands dismissed.

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.