State of Karnataka vs Vijaya Bhima Chavan

Anand Byrareddy, J.—Heard the learned Additional Advocate General appearing for the State and the learned counsel appearing for the respondent-accused.

The state is in appeal challenging the acquittal of the respondent-accused in the following background. It was alleged by the Prosecution, that on 19th February, 2009, one Sonabai, who was the wife of the respondent-accused, when was at home in the evening at about 8.00 p.m., her husband had returned home in a drunken state and had immediately picked up a quarrel with the complainant-Sona Bai and attacked her. Since she was fed up with his behaviour over a period of time, though they were married only for over a period of one year prior to the incident, and since the argument ensued, it was alleged that the accused-respondent immediately poured kerosene on her and set her on fire, as a result of which she had suffered serious burn injuries and was admitted to a hospital for treatment. Thereafter, she was discharged from the hospital and when she was back in her matrimonial home as on 3rd May, 2009, at about 6.00 a.m. she is said to have died. This according to the prosecution was a direct result of injuries caused by the respondent-accused as on 19th February, 2009, and in that background a case was registered against respondent-accused for offences punishable under Sections 498A and 302 of the Indian Penal Code, 1860. Thereafter, after further proceedings whereby the respondent-accused was committed to the Court below, the accused have pleaded not guilty and have claimed to be tried, the prosecution had tendered evidence and it had examined witnesses PW1 to PW22 and marked several exhibits and material objects in support of its case. The Trial Court had framed the following points for consideration:

Does the prosecution proves its case against the accused beyond all reasonable doubt that this accused being the husband of the deceased Sonabai subjected her to cruelty in connection with her advise regarding consuming liquor and other purposes and alleged against him thereby he committed an offence punishable under Section 498(A) of Indian Penal Code?

Does the prosecution proves its case against the accused beyond all reasonable doubt that this accused being the husband of the deceased Sonabai on 19.2.2009 at about 8.00 p.m. this accused took quarrel with her in his house situated at Lingeri Tanda in connection with her advise regarding his consuming of liquor and took revenge with intention to commit her murder, so he poured kerosene on her body and set fire to her, caused burning injuries and in view of the said injuries on 3.5.2009 at about 6.00 a.m. she died in the house of the accused for the said burn injuries and thereby he committed an offence punishable under Section 302 of Indian Penal Code?

The Trial Court answered point Nos. 1 and 2 in the negative and acquitted the accused. It is that which is under challenge in the present appeal.

The learned Additional Advocate General in support of the grounds raised in the appeal contends that the Trial Court failed to address the facts and circumstances of the case. It is riot denied that it was an unnatural and homicidal death within one year from the date of marriage. Therefore, the burden was on the accused to rebut the presumption that the death was not unnatural and that it was not caused by the bum injuries as a result of the accused have set her on fire. The fact remains that she was admitted to hospital by her brother, who was said to be residing in the neighbourhood and the deceased have in her own words narrated the manner in which the incident had occurred which was treated as a complaint and further action have been taken and death of the deceased have occurred soon thereafter within a period of two and a half months, the only presumption that could have been drawn was that there was a dying declaration in support of the case of prosecution notwithstanding that except the brother of the deceased, the other witnesses did not choose to support the case of the prosecution.

The Tahsildar, who recorded the statement made by the deceased immediately on her admission to hospital and the Police Inspector who had investigated the case, who was also present, have spoken about the condition of the deceased at that point of time was sufficient to implicate the accused squarely. The circumstance that the medical practitioner who had treated the deceased, not have been examined or other witnesses not have supported the case of the prosecution, pales into insignificance when there was a dying declaration of the deceased herself to implicate the petitioner. In a catena of decisions the Hon''ble Supreme Court laid down that in cases such as this involving the unnatural death of a newly married woman would necessarily have to be viewed with circumspection and the dying declaration made by the deceased would be sufficient to bring home the charges against the accused. This salutary'' principle had been completely overlooked by the court below in proceeding to address the evidence, or the lack of it, through independent witnesses as being a flaw in the case of the prosecution which gave the benefit of doubt to the accused.

The learned Additional Advocate General would further point out the unfair approach of the court below in proceeding to trash the dying declaration on trivial objections when the same ought to have been treated with greater sanctity as it is recorded by no less an officer than the Tahsildar of the Taluk who tendered evidence in support of the same have been recorded, the Court unnecessarily cast suspicion and doubts on the said dying declaration by making a comparison of signatures which was wholly irrelevant and also have opined that since there was a gap between the period during which the deceased had undergone treatment in the hospital and the time of her death which was more than two and a half months, the same could not be treated as a dying declaration, was an unfair and illegal finding. Since there is a direct and proximate connection between the injuries caused and the death of the deceased, the court below was not justified in negating the crucial document such as a dying declaration and acquitted the accused. He would submit that irrespective of the lack of evidence or other defects in the evidence of other witnesses the Court below failed to follow the established principle that a dying declaration is sufficient to bring home the charges against the accused. Accordingly, he submits that the appeal be allowed and to set aside the judgment of the court below and the accused be convicted as prayed for.

On the other hand, the learned counsel for the respondent-accused seeks to justify the judgment of the Court below.

Given the above contentions and on a careful perusal of the record, though the learned trial judge expressed a certain opinion to which the learned Additional Advocate General taken strong objection that when it was never the case of the defence and when there was no evidence tendered in that regard, to assume that the deceased might have suffered bum injuries as an accident when she was cooking, as normally in villages people would be before the stove cooking food at that time of the day, and therefore, proceeded on that premise. It is however to be noticed that in body of the judgment, the evidence been discussed and it is because of the lack of it, the Court below proceeded to acquit the accused. In other words, it is found that insofar as the evidence of the witnesses is concerned, PW4-Devappa the brother of the deceased was the only witness who had sought to support the case of the prosecution. Though there were other eyewitnesses who had stated that they heard a hue and cry and they saw the deceased rush out of her house and that she had suffered bums and it is PW4 along with them who had taken her to hospital. However, significantly, none of those witnesses had stated that accused was present at that point of time in the house and this is one circumstance, which the Trial Court empised to point out that none of the other prosecution witnesses have supported the case of the prosecution that the incident had occurred on account of the accused have poured kerosene on the deceased and have set her on fire. There were no eyewitnesses to that part of the allegations. The eye-witnesses have only spoken about the deceased running out of the house and that her clothes were on fire. That is one aspect.

Further, the Court then found that the deceased had been admitted to hospital on the date of the incident, viz. 19th February, 2009 and that her statement as to the manner in which the incident had occurred had been recorded by PW14 as per Exhibit P4. However, it is further found on evidence, and it is not disputed, that she had been discharged from hospital. There are no medical records produced to indicate as to why she was discharged. It is thereafter that she died in her matrimonial home on 3rd May, 2009, i.e. after a gap of two and a half months after the date of incident. The Trial court been unable to reconcile the dying declaration with the cause of death in the absence of any medical record to indicate the nature and extent of bum injuries suffered by the deceased and in the absence of evidence of the medical practitioner who had treated the deceased and also in the absence of any document to establish the cause of death, found it difficult to conclude that the death was on account of bum injuries that the deceased may have suffered. This is yet another significant circumstance.

The third circumstance under which the Court negated the dying declaration is firstly, the Court expressed a doubt as to whether the document styled as a dying declaration by the Prosecution could be considered as one, because normally a dying declaration is made by a person who is facing imminent death; and in a case where death occurred after two and a half months and without any further preamble as to whether the treatment had improved the condition of the injured or whether the situation was so worse that she was written off as a hopeless case and thereafter had been discharged from the hospital are only presumptions and it cannot be said with any certainty that the ultimate death was relatable to the bum injuries that the deceased had suffered and further that the bum injuries were of such a serious nature that they did ultimately cause the death of the deceased. This confusion not being capable of being clearly, the Court below negated the document exhibit P4 sought to be projected as a dying declaration. Hence, the learned Additional Advocate General''s vehement contention that the Court below departed from the established principle that a dying declaration must be given its due prominence, cannot be readily accepted given the circumstances of the case. Further, the Court below also doubted the veracity of the dying declaration on account of inconsistencies, viz. thumb impressions appearing on the dying declaration of the deceased recorded by PW4 and the thumb impression taken by PW16-Police Sub-Inspector on Exhibit P21-statement of Motibai mother of the deceased and the comparison of Exhibit P21 and Exhibit P4, the Court found inconsistencies in the thumb impressions and also expressed a doubt that when the deceased had suffered burn injuries on her hand and other parts of her body whether she could put her legible thumb impression was another question on which the Court pondered. Though the PW5-the Tahsildar stated that he had conducted the inquest panchhanama and recorded statements of the mother of the deceased, this fact was not proved by the Prosecution for in the Court''s opinion panc had not supported the case of prosecution and the very inquest panchanama have been conducted was denied by the witnesses. It is in this background that in the absence of material evidence and crucial evidence and the evidence which was sought to be projected by the Prosecution not being acceptable to the Court below, the Court have proceeded to hold that the prosecution had not proved its case beyond all reasonable doubt and have acquitted the accused, cannot be found fault with. Therefore, in our view, there is no merit in this appeal and the same stands dismissed.