Siddaraju vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellant.

The brief facts are as follows:

The present appellant is said to be the husband of one Shoba. They were residents of Nidaghatta village, Malavalli Taluk. The complainant was said to be working at Bangalore and he was home only once in fifteen days. They had two children by the marriage. It is the allegation that Accused No. 2, namely Respondent No. 3 herein who was a neighbourer, taking advantage of her husband''s absence, was constantly misbehaving with the deceased Shoba and he was making physical advances and was constantly teasing her. It is stated that she had vehemently protested on each occasion, but the accused had continued his behaviour. It is also alleged that Chennamma who is another neighbourer was witness to such an instance who had spread rumours to the effect that Shoba the deceased and the Respondent No. 3 herein were having an affair. It is further alleged by the complainant that this had led to the villagers looking down upon his wife and condemning her. It is out of sheer humiliation, she was driven to commit suicide on 3.2.2010 at about 10.30 a.m. when she was alone in the house. However, hearing her cries on setting herself ablaze, the neighbourers had rushed in and admitted her to a Hospital for treatment. She was in Hospital for three days. It transpires that her statement was recorded by the Investigating Officer on 3.2.2010 at about 11.30 a.m. though she had suffered 75% burn injuries. The statement reads as follows:

The said Shoba is said to have expired on 19.02.2010. It is thereafter that on the basis of Exhibit P-8, a case was registered in Crime No. 25/10 for offences punishable under Sections 354, 309, 306, 511 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC, for brevity). The Investigating Officer had also visited the spot and had gathered material. In the meanwhile, the accused had obtained anticipatory bail. After completion of investigation, the accused were charge-sheeted for offences punishable u/s 307 read with Section 34 IPC. The Magistrate having taken cognizance and after compliance of proceedings u/s 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr.P.C.'', for brevity), the matter was committed to the Sessions Court for trial. On committal, a Sessions case in S.C. No. 123/2010 was registered and after securing the presence of the accused, charges were framed. The accused having pleaded not guilty and having claimed to be tried, the prosecution, in order to prove the charge framed against the accused had examined PW-1 to PW-12 and marked Exhibits P1 to P13. The case of the prosecution therefore was that on account of rumours having been spread by Accused No. 1 as to the deceased Shoba having an illicit affair with Accused No. 2 and on account of the humiliation that followed by virtue of the villagers having taken a dim view of the character of the deceased, she was driven to commit suicide. The court below after recording the evidence and the statements of the accused u/s 313 of the Cr.P.C., and after hearing the arguments, had framed the following points for consideration:

Whether the prosecution has proved beyond reasonable doubts that the accused No. 2 used to misbehave with the deceased by catch holding her and pulling her, and the 1st accused spread rumour that the deceased had kept the accused No. 2 in illicit relationship and thereby caused insult and humiliation to the deceased under common intention and intentionally abetted the deceased to commit suicide, and on account of such abetment, on 3.2.2010 at about 10.30 a.m., the deceased herself poured kerosene and set ablaze behind her house, and thereby accused have committed offence punishable u/s 306 read with Section 34 of I.P.C.?

To what order?

The Trial Court had answered the same in the negative and had acquitted the accused. It is this which is under challenge in the present proceedings.

The learned counsel for the appellant would contend that the court below has held that Exhibit P-8 being construed as a dying declaration is misplaced and that the said document could not be considered as a dying declaration. Secondly, the court below has proceeded to examine whether the ingredients of Section 307 read with Section 107 IPC were made out and has opined that in the absence of any evidence of any other person from the village as to Chennamma having spread rumours about the illicit affair between Shoba and Rajashekar, it could not be said that there was cause and reason for the deceased to have committed suicide that it was on account of the acts of Accused Nos. 1 and 2. This the learned counsel for the appellant would submit is unfortunate. In that, the deceased has clearly stated that though there were constant attempts on the part of Accused No. 1 to molest her and to get familiar with her, she had rebuked and resisted any such advances and it is Chennamma who had falsely spread rumours and the villagers not having come forward to tender evidence in support of the prosecution, is clearly a lapse which cannot negate the dying declaration that is made. The court below has committed a cardinal error in holding that the statement made by the deceased could not be construed as a dying declaration. The opinion formed by the Trial Court is not in consonance with the law laid down by the Supreme Court, and that it is no longer necessary to rely upon the statement as a dying declaration in any kind of format prescribed which was the law as understood till recently, and in the judgment of the Supreme Court in the case of Ashabai and Another Vs. State of Maharashtra, , the court has diluted the requirements of a dying declaration and it has gone to the extent of holding that the insistence of corroboration to a dying declaration is only a rule of prudence. When the court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration.

Therefore, the Trial Court having taken a strict view of the manner in which a dying declaration should be recorded and the requirement of the formalities, is no longer good law and would submit that the court below having negated the Exhibit P8, has resulted in a miscarriage of justice Therefore, if Exhibit P8 is accepted on its face value and coupled with the fact that the husband was infrequently at home leaving Shoba the deceased exposed to the overtures of the neighbourer, the accused No. 2 and the further act of Accused No. 1 in maliciously spreading rumours about an alleged illicit affair, would certainly constitute an offence punishable u/s 307 IPC and hence would plead that the judgment of the court below be set aside and the accused be convicted, in accordance with law.

However, on a close examination of the material on record notwithstanding that the Exhibit P-8, the statement made by the deceased could be indeed treated as a dying declaration, would yet require other material evidence to support the case of the prosecution. Sadly, this is not available. Though twelve witnesses have been examined, the evidence of none of those witnesses would support the case of the prosecution insofar as it pertains to the allegation that Accused No. 1 was making advances towards the deceased and though there was no illicit relationship between the deceased and Rajashekar, Chennamma had gone about spreading rumours and this had led to the villagers looking down upon Shoba and humiliating her, which led to her committing suicide. To establish that circumstance, there ought to have been other witnesses who could speak to the circumstances. That is not forthcoming. Therefore, notwithstanding that the court may not have been correct in its view in the light of the judgment of the Supreme Court cited above that the statement at Exhibit P8 was not in the nature of a dying declaration and even if it is accepted that it is a dying declaration, the prosecution would fail in the face of lack of evidence to bring home the charges and accordingly, there is no case made out. The appeal is rejected.