Sri. Prabhu vs State of Karnataka

N. Ananda, J.—The Appellant (arrayed as accused No. 1) has filed CrlA 142/2007 against judgment of conviction for offences punishable under Sections 498-A and 302 I.F.C. in S.C. No. 128/2006.

The first informant (father of the deceased) has filed Crl.R.P. 1008/2007 against acquittal of Respondents (accused No. 2 and 3) for offences punishable under Sections 498-A, 302 and 109 I.P.C.

We notice from the records that, during investigation accused No. 1 was absconding. Therefore, final report was filed against accused No. 1 to 3 for the aforestated offences showing accused No. 1 as an absconder. Accused No.2 and 3 were tried in S.C. No. 286/2005 for offences punishable under Sections 498-A, 302 and 109 I.P.C, and they were acquitted of the said offences. Accused No. 1 surrendered and he was tried in S.C. 128/2006 for offences punishable under Sections 498-A and 302 IPC.

The learned trial judge on appreciation of evidence and on hearing the learned Counsel for parties convicted accused No. 1 for offences punishable under Sections 498-A and 302 IPC. Therefore, accused No. 1 has filed Crl.A. 142/2007.

Crl.A 142/2007 filed by accused No. 1 and Crl. RP 1008/2007 filed by first informant, {father of the deceased) have arisen out of same incident though decided by holding separate trials. Therefore, they are together taken up for consideration and decision by this common judgment.

In brief, the case of prosecution is as follows:

Pushpalatha (since deceased) was the daughter of PW. 1-Manga Land PW. 2-Samaraj. PW.3-Pannerselvam is the elder brother of deceased. Accused No. 1 is the son of accused No 3. Accused No.2 is the younger brother of accused No. 1. The marriage of deceased Pushpalatha with first accused was performed on 31.08.2003.

During investigation, witnesses had made allegations of demand and acceptance of dowry, the final report was not filed for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. Therefore, we will not refer to the evidence adduced in proof of demand and acceptance of dowry in connection with the marriage of accused No. 1 and deceased-Pushpalatha.

It is the case of prosecution that, after marriage, the deceased was living in the house of accused No. 1 to 3 at Rajavattamgoundar village Tirupatair taluk Vellore District. It. is the case of prosecution that accused No. 3 had made indecent advances towards the deceased, therefore, accused No. 1 and the deceased shifted their residence to Guni Agrahara situate within the limits of Soladevanahalli P.S. Bangalore Rural District. Later, accused No.2 also joined them. Accused No. 1 and 2 were working as Masons.

It is the case of prosecution that accused No. 1 and 2 were demanding the deceased to get the site belonging to her father (PW.2) transferred to her name. PW.2 had also assured to transfer the site in favour of deceased.

On 03.01.2005 accused No. 1 and 2 picked up quarrel with the deceased and doused kerosene and set her on fire. Later, accused No. 1 shifted and admitted her to Victoria hospital. The matter was informed to parents of the deceased, they also came to Victoria hospital. As there was shortage of beds in Victoria Hospital, the deceased was shifted and admitted in St. John''s hospital at Bangalore.

On 18.01.2005, deceased was got discharged from St. John''s hospital and she was shifted and admitted in Victoria hospital. She was treated for 2-3 days, thereafter, she was treated in private Nursing Home for a period of 20-25 days. After the deceased was discharged from private Nursing Home, she was staying in her parental house. About 2 or 3 days prior to 08.03.2005 as the infection of burn injuries suffered by deceased aggravated, deceased was admitted in Victoria Hospital.

On 08.03.2005, deceased succumbed to bum injuries in Victoria hospital. The postmortem examination conducted on deceased would reveal that the death was due to septicemic infection and exhaustion consequent to burn injuries.

It is the case of prosecution that when deceased had been admitted in Victoria hospital on 18.01.2005, she gave a statement as per Ex.Pl that accused No. 1 and 2 doused kerosene and set her on fire. On the basis of Ex.P1, the jurisdictional police registered a case for offences punishable under Sections 498-A, 307 and 109 I.P.C. After the death of deceased on 08.03.2005, an offence u/s 302 IPC was included.

The learned trial judge disbelieved the evidence of prosecution and contents of dying declaration and acquitted accused No.2 and 3 in S.C. No.286/2005. The learned trial judge held separate trail against accused No. 1 in S.C. No. 128/2006. The learned trial judge accepting the evidence adduced by prosecution and the dying declaration made by the deceased, convicted accused No. 1 for offences punishable under Sections 498-A and 302 IPC.

We notice from the records that the learned trial judge should have held a common trial. The learned trial judge having tried accused No.2 and 3 in S.C. 286/2005 and acquitted them, should have used the evidence recorded in S.C. 286/2005 while trying accused No. 1 in S.C. 128/2006 The learned trial judge has held separate trial in respect of accused No. 1. The prosecution examined PW''s. 1 to 22 arid the accused gave evidence as DW.1. The learned trial judge accepting the contents of dying declaration marked as per Ex.P1 and evidence of parents of the deceased convicted accused No. 1 for offences punishable under Sections 498-A and 302 IPC.

We have heard Sri. Hashmath Pasha, learned Counsel for Appellant (accused No. 1) in S.C. 128/2006 and Smt. Anitha, learned Counsel appearing for Petitioner (defacto complainant) in Crl.RP 1008/2007 and Sri N.S. Sampangiramaiah, learned Government Pleader appearing for State in Crl.A 142/2007. We have been taken through evidence and the impugned judgments.

Before adverting to appreciation of evidence, we deem it proper to state certain admitted facts. The marriage of first accused and deceased and the date of marriage viz 31.08.2003 have not been disputed. It is also not disputed that after the marriage, deceased was living in the house of accused No. 1 to 3 for over a period six months in Rajavattamgoundar village, Tirupattur Taluk, Vellore District. Thereafter, accused No. 1 and the deceased shifted their residence to Guni Agrahara village, situate within the jurisdictions of Soladevanahalli P.S., Bangalore Rural District Later, accused No.2 also joined accused No. 1. Accused No. 1 and 2 were working as Masons,

The parents of deceased viz., PW. 1-Mangai and PW.2-Samaraj are residents of Okalipuram, Bangalore City. The parents of deceased (PW. 1 and 2) have deposed that the deceased was staying in the house of accused No. 1 to 3 at Rajavattamgoundar village, Tirupattur Taluk, Vellore District. Accused No. 3 had made indecent advances towards the deceased. When this fact was brought to the notice of accused No. 1, he decided to shift his family. Accordingly, he shifted his residence to Guni Agrahara, Bangalore Rural District. This incident of indecent advances by accused is alleged to have taken place when the deceased was living in the house of accused No. 1 to 3 in Rajavattamgoundar Village.

PW''s. 1 and 2 have deposed that the deceased had informed about the indecent and behavior of accused No. 3 to her parents. The parents of deceased had neither questioned the accused nor they had convened a panchayat to question about, the indecent acts of accused No. 3. This fact came to light only after the statement of deceased was recorded on 18.01.2005. In view of this sporadic evidence, the learned trial judge has rightly disbelieved the evidence in proof of indecent advances attributed to accused No. 3. We also notice from the charges framed S.C. No. 286/2005 accused No. 3 is charged for abetting commission of murder by accused No. 1, though he was not staying with accused No. 3 and the deceased either at the time of incident or before the time, of incident. This would create a strong suspicion on the evidence given by PW1 and PW2.

It is the case of prosecution that accused No. 1 and 2 were demanding the deceased and her parents to transfer a site, which was allotted to PW.2 (lather of the deceased). The prosecution has not produced any documentary evidence to prove that PW.2 owned a site. On the other hand, oral evidence of PW''s. 1 and 2 would reveal that PW.2 was allotted a site under the scheme of allotment of sites to Houseless and Siteless persons (Ashraya scheme). PW.2 had yet to pay the upset price fixed by Government and yet to construct a house. PW.2 had not given the dimension of the site. Above all, the. documents relating to allotment of site are not produced before the court. In the circumstances, the evidence of PW''s. 1 and 2 that accused was demanding the deceased to get the site transferred to her name looks improbable. Therefore, the learned trial judge has rightly disbelieved evidence adduced by the prosecution to prove that accused No. 1 was unlawfully demanding the deceased to get the site transferred from her father (PW2).

It is the case of prosecution that on 03.01.2005, at about 7.15 p.m., accused No. 1 and 2 picked up quarrel with the deceased in their house and threatened the deceased to leave the house. When the deceased refused to leave the house, accused No. 1 and 2 doused kerosene oil on the deceased and set her on fire. Later, accused No. 1 and his neighbours shifted the deceased to Victoria hospital. The I-accused informed the incident to the parents of deceased (PW''s. 1 and 2). They came to Victoria hospital and found that beds were not available. Therefore, the deceased was shifted and admitted in St. John''s hospital at Bangalore.

PW.2-Samaraj, father of the deceased has deposed that he had paid the hospital expenditure to St. John''s hospital, which almost ran to a sum of Rs. 1,50,000/- whereas, the first accused has contended that he had met entire hospital expenditure but, the fact remains that medical bills relating to treatment given to deceased in St. John''s hospital were not produced before the trial court. For the reasons not apparent on record on 18.01.2005, the deceased was got discharged from St. John''s hospital against medical advice and she was shifted and admitted in Victoria hospital.

The prosecution has relied on the dying declaration marked as per Ex. P1 said to have been made by deceased at about 8.15 p.m. on 18.01.2005 in the presence of PW.20-Dr.Shobha.

Before adverting to the contents of dying declaration (Ex.P1), it is necessary to state that soon after the incident, it was made known to the parents of the deceased (PW''s, 1 and 2) by the I-accused. Immediately, alter the incident, PW1 and PW2 had come to Victoria hospital At the instance of PW''s. 1 and 2, the deceased was shifted and admitted in St. John''s hospital. The parents of the deceased (PW1 and PW2) had not informed the matter to the police. As per evidence of the parents of deceased, the deceased was treated in St. John''s hospital from 03.01.2005 to 18.01.2005. The prosecution has produced medical records relating to treatment given to deceased in St. John''s hospital. The admission record shows that the deceased had suffered 20% burns. The accused had given consent for surgery (T.E. on the CSSG) on 06.01.2005. On 18.01.2005, the deceased was got discharged from St. John''s hospital against medical advice. The case sheet and discharge summary issued by the hospital would reveal that on 03.01.2005, deceased was admitted in St. John''s hospital with history of burns due to accidental fire when she was cooking food on kerosene stove at about 8.00 p.m. on 03.01.2005. At the time of admission to St. John''s hospital, the deceased was conscious and oriented. She had sustained burns over face, chest and back (25% of the total body surface area). On 04.01.2005, the deceased developed dysperea and upper airway oedema for which she was intubated and ventilated. She was diagnosed to have inhalational pneumonia and was treated for the same. The deceased underwent trychial excision and skin grafting on 06.01.2005. She was subsequently extubated on 13.01.2005. She was given blood transfusions and antibiotics as needed. She was taken to the ward on 17.01.2005. At the time of discharge, her condition was critical, she required medication and regular dressing. Her condition was explained to her father (PW2) yet, he got her discharged against medical advice.

Thus, we find that from 03.01.2005 to 18.01.2005 though the deceased was in a fit condition to give statement, the investigating officer had not visited the hospital to record her statement for the obvious reasons that no medico legal intimation was sent to the investigating officer. The parents of the deceased who allege that the deceased was set on fire by accused No. 1 and 2 had not lodged the first information. Therefore, it is necessary to bear in mind these circumstances to appreciate contents of statement given by the deceased on 18.01.2005. The prosecution has nut produced the entries made in the medico legal register when the deceased was admitted in Victoria hospital on 18.01.2005. The prosecution has not produced the records relating to admission of deceased to Victoria Hospital on 18.01.2005. On the other hand, we find from records that on 03.01.2005 at 10.00 p.m., a medico legal intimation was sent by the Duty doctor of St. John''s hospital to Koramangala Police Station wherein'' it was stated that. Pushpalatha aged about 25 years was admitted with burn injuries with the history of accidental burns. Thus, we find that, at the earliest point of time, it was stated that the victim had suffered bum injuries due to accidental fire. The parents of deceased had not lodged the first information.

On 18.01.2005 for the first time, the deceased had come out with a version that; accused No. 1 and 2 had doused kerosene and set her on fire. The prosecution has not offered any explanation as to why the matter was not informed to police for over a period of 15 days. PW.20 Dr. Shobha has made an endorsement that the deceased was conscious and fit to give statement at 8.15 p.m., on 18.01.2005. PW.20 has not produced any documents to show that she had examined the deceased before she made such an endorsement. Above all, the admission register maintained in Victoria hospital and die entries made therein relating to admission of the deceased in Victoria hospital were not produced before the trial court.

During cross-examination, PW. 20 has admitted that on 18.01.2005 at about 8.00 p.m., she came to attend her duties. Before that, one Dr. Sathyanarayana was the duty doctor. PW.2 was not in charge of burns ward.

PW.22-A. Hanumanthaiah Sub-inspector of police has deposed; that on 18.01.2005 when he was the Station House Officer he received information over the phone that deceased Pushpalatha had suffered burn injuries and she was admitted in Victoria hospital. Therefore, he visited Victoria hospital along with PW.21-Prakash.

PW.22 met PW.20-Dr.Shobha and enquired her if he could record the statement of deceased. PW.20 showed the deceased to PW.22 and permitted him to record her statement.

PW.22 has deposed: that PW.21-Prakash wrote the statement made by the deceased to the dictation of PW.22. PW.22 has not deposed that PW.20-Dr.Shobha had examined the deceased before she permitted him to record her statement. PW.22 has not deposed, that the deceased was physically and mentally fit to give statement.

PW.21-Prakash has deposed that he recorded the dying declaration as dictated by PW.22. Therefore, the evidence on record does not reveal that the deceased was mentally and physically fit to give statement as per Ex.P1.

As per the evidence given by the father of deceased, he got discharged the deceased from Victoria hospital and thereafter she was admitted in a private Nursing Home run by Dr. Sadashivaiah. wherein the deceased was treated for a period of 20-22 days. After the burn injuries healed, he got the deceased discharged from that nursing home and took her to his house. After two days, she developed infection. Therefore, again she was readmitted in Victoria hospital. She was treated for a period of two days. On 08.03.2005, she succumbed to burn injuries. Thus, we find that first information of the incident which had taken place on 03.01.2005 had not reached the police till 18.01.2005.

The father of deceased (PW.2) has deposed that he was aware as to how the deceased had suffered burn injuries but he did not bother to inform the police. Tire medico legal intimation sent by the doctor of St. John''s Hospital to Sub-Inspector of police of Koramangala Police Station would reveal that, it was a case of accidental tire. The deceased was got discharged from St. John''s hospital against medical advice though her condition had not improved. The evidence adduced by the prosecution in proof of statement of deceased (Ex.P1) does not inspire confidence. The statement given by the deceased would reveal that accused No. 1 and 2 doused kerosene and set her on fire. PW1 and PW2 have deposed that deceased had told them that accused No. 1 had set her on fire. The statement of deceased was recorded on 18.01.2005 and she died no 08.03.2005 i.e., after a period of 2 months 5 days. We also notice from the evidence of PW.21-Prakash and PW.22-A. Hanumanthappa- (PSI) that the deceased had stated before them that first accused (her husband) doused kerosene and set her on fire. The evidence of PWs.21 and 22 is contrary to the contents of dying declaration as per Ex.P1 wherein it is stated that accused No. 1 and 2 had doused kerosene and set the deceased on fire. The evidence adduced by the prosecution in proof of the statement (Ex.P1) is not cogent and credible.

We also notice from the evidence of PW. 1 and 3 that accused No. 1 had shifted the victim from his house to Victoria Hospital. The-conduct of accused No. 1, immediately after the incident is consistent with his innocence.

The accused examined as DW. 1 has deposed; that he met the treatment expenses when the deceased was treated in St. John''s Hospital. This evidence looks probable, as the father of the deceased (PW2) had not lodged first information against the accused. The accused had given consent for the operation performed on the deceased in St. John''s Hospital.

PW.2 has deposed that the deceased was treated in a Nursing Home of Dr. Sadashivaiah for a period of 20-25 days however, Dr. Sadashivaiah was not examined before the trial court. From the contents of postmortem examination report marked as per Ex.P17 we find that the death of Pushpalatha was due to Septicemia infection consequent, to burn injuries. The deceased bad suffered burn injuries on 03.01.2005 and succumbed to burn injuries on 08.03.2005. The deceased was being treated in St. John�s Hospital and she was got discharged against medical advice, thereafter, she was admitted in Victoria Hospital. There are no records to prove the condition of deceased when deceased was admitted to Victoria Hospital on 18.01.2005.

PW.2 has deposed that the victim was treated in a Private Nursing Home of Dr. Sadashivaiah however, the medical records of said Nursing Home are not produced. Therefore, we hold that there were intervening factors, which had aggravated the infection of burn injuries suffered by the deceased. From the medical records of St. John''s hospital we find that the deceased had suffered 25% of bum injuries. It. is not clear whether the injuries were superficial, skin deep, 1st degree or 2nd degree burns. These circumstances would also belie the case of prosecution that Ex.P1 was the statement made by the deceased and it should be treated as dying declaration.

Therefore, we hold that the prosecution has failed to prove beyond reasonable doubt the dying declaration said to have been made by the deceased, which is the only piece of evidence relied upon by the prosecution to prove the guilt of accused.

The learned trial judge without noticing these discrepancies has placed implicit reliance on Ex.P1 to convict accused No. 1 for offences punishable under Sections 498-A and 302 IPC.

We also notice from the judgment of the trial court in S.C.No.286/2005, the very Sessions Judge who tried accused No.2 and 3 has held that dying declaration said to have been given by the deceased on 18.01.2005 does not inspire confidence. The learned trial judge has held that PW.22-A. Hanumanthappa (PSI) and other witnesses who recorded dying declaration have deposed that as per the statement, given by deceased, the first accused had alone-doused kerosene and set the deceased on fire. The evidence of PW22 is contrary to the contents of dying declaration, wherein it is stated that deceased was set on fire by accused No. 1 and 2.

The learned trial judge who had rightly rejected the contents of dying declaration while trying accused No.2 and 3 in S.C. 286/2005, had applied different yardstick while trying accused No. 1 in S.C. 128/2006 to accept the dying declaration, and to hold accused No. 1 guilty of offences punishable under Sections 498-A and 302 IPC. Therefore, we are of the opinion that the approach of learned trial judge is erroneous. The judgment of conviction made in S.C. 128/2006 cannot be sustained. The judgment of acquittal of accused No.2 and 3 made in S.C.286/2005 does not call for interference.

In the result, we pass the following:

ORDER

Criminal Revision Petition 1008/2007 is dismissed. Criminal Appeal No. 142/2007 is accepted.

The judgment of conviction of accused No. I (in S.C. 128/2006) for offences punishable under Sections 302 and 498-A I.P.C., is set aside. The accused shall be set at liberty if not required in connection with any other case.