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Judgment
The State has filed this appeal against the acquittal of respondent (accused) for an offence punishable under section 302 IPC and also for offences punishable under sections 3 and 4 of dowry prohibition Act. The accused entered appearance and engaged learned counsel Sri. V. Anand. When the matter was listed for final hearing Sri. V. Anand did not appear before this Court. Therefore, this Court by order dated 13.7.2011 appointed Sri V. Anand as Amicus Curiae for the accused.
We have heard Sri. P.M. Nawaz, learned Addl. SPP for the State and Sri. V. Anand learned Amicus Curiae for accused.
We have been taken through evidence and the Impugned Judgment.
In. brief the case of the prosecution is as follows:
Farzana (since deceased) was the daughter of PW1 Shaik Mustafa and PW5-Gulab Jan. PW1-Chand Pasha is the maternal uncle of the accused. DW1 Jaffar Baig is the junior uncle of the accused.
i) The marriage of Farzana (since deceased) with accused was performed on 17.1.2004 in Khazi Shah Mohalla at Kolar. After marriage the deceased was living in the house of accused in Adigere Village, Chintamani Taluk.
Before the marriage accused had demanded and accepted dowry of Rs. 20,000/- (in cash), two gold rings and a chain.
ii) The married life of accused and deceased was happy for a period of 6 months. Farzana conceived and delivered a male child after 1 year of marriage. She was in her parental house for delivery and confinement After 2-3 months she was taken hack to her husband''s house.
iii) The accused demanded the deceased to bring a sum of Rs. 10,000/- from her parental house as the accused wanted to purchase a TVS Moped. PW1 after coming to know of this, convened a panchayat wherein the accused and his relatives were summoned. In the panchayat the accused was suitably advised. PW1 gave a sum of Rs. 1,000/- to the accused. Thereafter the accused took the deceased to his house.
iv) On 18.4.2005 at about 8.00a.m. the accused picked up quarrel with the deceased for not bringing a sum of Rs. 10.000/- as demanded by him, doused kerosene and set her on fire. Farzana suffered burn injuries. The accused shifted her to the General Hospital at Chintamani. After first aid treatment, as advised by the doctor, the accused shifted her to Victoria Hospital at Bangalore. The accused informed the matter to PW1 and PW5. PWs 1 and 5 came to Victoria Hospital and saw Farzana in burns ward. On the following day PW1 lodged complaint and set law into motion. Farzana was under treatment till 23.4.2005, on which day she succumbed to burn injuries.
v) When Farzana was in Victoria Hospital, the Taluka Executive Magistrate, Bangalore North Taluk, had been requested by the Police Officer to record her statement. The Taluka Executive Magistrate came to Victoria Hospital and enquired the duty doctor PW27 Dr. Shankarappa. who on examination of Farzana certified that Farzana was conscious and in a fit condition to give statement. Thereafter the Taluka Executive Magistrate recorded the statement of Farzana in the presence of PW20 Honnegowda (the then police constable of Victoria Hospital police station).
vi) The Investigating Officer after the death of Farzana registered the case for an offence punishable under section 302 IPC and sent the second report. The Investigating Officer arrested the accused on 21.4.2005 and recovered a plastic kerosene can. The investigating officer recorded the statements of witnesses, sent the incriminating articles to FSL. The postmortem examination on the dead body of Farzana revealed that the death was due to 90% burn injuries.
vii) The Investigation was later handed over to the Police Inspector, Anti Dowry Cell, who recorded further statements of some of the witnesses, visited the place of incident, collected necessary evidence and filed charge sheet against the accused for offences punishable under sections 498A, 302, 304A IPC and also under sections 3 and 4 of Dowry Prohibition Act.
viii) The learned Trial Judge framed charges for an offence punishable under section 302 IPC and for offences punishable under sections 3 and 4 of Dowry Prohibition Act.
ix) On behalf of prosecution PWs 1 to 36 were examined, documents Exs. P1 to P44 were marked and Material Objects were marked as MOs 1 to 12. On behalf of defence Dws 1 to 4 were examined and the contradictory portions in the evidence of PWs 9 and 11 were marked as Ex. D 1 to 3. On behalf of defence a blanket was produced through DW1.
x) The learned Trial judge acquitted the accused for the aforesaid offences by assigning following reasons:
The evidence given by PWs 1, 5 and 7 regarding demand and acceptance of dowry is highly discrepant:
Soon after the incident Farzana had given statement before PW 25 Dr. Jayaram Medical Officer, General Hospital, Chintamani that she had suffered burn injuries due to stove burst.
The evidence given by PWs 1 and 5 that the deceased had made oral dying declaration that she was set on fire if highly discrepant and incredible.
The dying declaration Ex.P 14 said to have been recorded by PW 26 with the help of PW20 in the presence of PW27 Dr. Shankarappa is highly discrepant and suffers form material contradictions and cannot be acted upon.
PW29 Dr. Shoba has deposed that when deceased was admitted in Victoria Hospital she gave the history of injuries as stove burst.
Before adverting to the appreciation of evidence it is necessary to state the facts which are not in dispute and which have not been disputed.
The accused married Farzana on 17.4.2004. The deceased was living in the house of accused in Adigere Village. The accused was living in a rented house. He was preparing stuffed rice in the varanda of his house. The deceased gave birth to a male child. She was in her parental house for confinement and delivery. About 3-4 months prior to the incident she was brought to her husband''s house.
That on 18.4.2005 at 8.00 or 8.30 a.m. the deceased suffered burn injuries in the house of accused. At that time, accused and the deceased were the only inmates of the house. After the incident the accused shifted the deceased to the General Hospital at Chintamani. After preliminary treatment, the accused shifted the deceased to Victoria Hospital at Bangalore. The deceased succumbed to burn injuries at 10.30 a.m. on 24.4.2005 in Victoria hospital at Bangalore. The death of Farzana was due to septicemia as a result of burn injuries. When deceased was in Victoria Hospital, she was being treated by PW27-Dr. M. Shankarappa, PW29-Dr. Shobha and PW 35-Dr. Gurumurthy.
It is the case of the prosecution that about 15 days prior to the marriage of first accused and deceased, marriage negotiations had taken place in the house of PW1 wherein the accused demanded dowry of Rs. 20,000/-, two rings and a gold chain. PW1 (father of deceased), PW5 (mother of deceased) and PW11 (neighbour of PW1) have given evidence in proof of demand and acceptance of dowry.
i) PW1 has deposed that about 15 days prior to the marriage he had given a sum of Rs. 20,000/- to the eider brother of accused. PW1 has deposed that thereafter a sum of Rs. 20,000/- was given to purchase a gold chain. At the time of marriage certain gold ornaments were given to his daughter Farzana.
ii) PW5 has deposed that about 5 months prior to the date of marriage they had given a sum of Rs. 20,000/- to the accused in their house. In the next breath she has deposed she gave a sum of Rs. 20.000/- to the accused in the presence of elder brother and mother of the accused. PW5 has deposed that at the time of marriage they gave two gold rings, wristwatch to the accused and certain gold ornaments to their daughter
iii) PW11 Nawab Sab has deposed that 15 days prior to the date of marriage the marriage negotiations took place in the house of PW1. At the time of marriage two gold rings, a cot and other articles were given.
We have extracted the version of above witnesses as found in. their examination-in-chief. We find that the evidence are PWs 1, 5 and 11 does not indicate that the accused had demanded dowry. Even regarding the payment of dowry the testimonies of PW1 and 11 are not consistent. Therefore, we hold that the prosecution has failed to prove that accused had demanded and accepted dowry.
It is the case of the prosecution that after the marriage the deceased was living in the house of first accused in Adlgere Village. The accused was frequently demanding the deceased to bring money. On one or two occasions PW1 had given a sum of Rs. 500/- or Rs. 1.000/-. It is the case of the prosecution that three months prior to the date of incident the accused had demanded the deceased to bring a sum of Rs. 10,000/- from her parental house as he wanted to purchase a TVS Moped. The deceased informed the matter to PW1 who convened a panchayat in the Mosque at Kolar. The panchayatdars advised accused not to make such demands. PW1 gave Rs. 1,000/- to the accused The accused did not stop harassing deceased in relation to demand of Rs. 10,000/-. In order to prove this fact, the prosecution has relied on the evidence of PWs 1, 6, 8, 9, 10, 11 and 12.
i) PW1 has deposed that about 3 months prior to the date of incident the accused demanded the deceased to bring a sum of Rs. 10,000/- from her parental house to enable him to purchase a TVS Moped. The deceased informed the matter to PW1. PW1 has deposed that about 20 days prior to the incident the accused had sent deceased to the house of PW1 to bring a sum of Rs. 10,000/-. PW1 did not have money. He pacified and sent back the deceased.
ii) PW5 had deposed that the deceased was being harassed by the accused in relation to dowry demand. The accused had demanded the deceased to bring a sum of Rs. 10,000/- to enable him to purchase a TVS Moped. Her husband (PW1) did not: have money. However, they paid a sum of Rs. 1,000/- and sent the deceased to the house of accused.
iii) PW7 Chand Pasha has not supported the case of prosecution and he was declared has hostile witness. He has denied that he attended the panchayat. PW8 Janibai has not supported the case of prosecution. He was declared as hostile witness. PW9 Khaleel has deposed that about two months prior to the date of incident deceased had came to her parental house. The first accused and four persons from Adigere came to the house of PW1. PW1 sent for PW9 and informed him that the accused was demanding a sum of Rs. 10,000/- to purchase a TVS 50. PW9 and others pacified the accused and told that PW1 was not capable paying Rs. 10,000/.
During cross-examination PW9 has given the names of the persons who had attended the panchayat. PW9 has stated that he had pacified the accused and sent him back.
iv) PW10 Asif has deposed that about 3 months prior to the date of incident PW1 informed PW10 that the accused was troubling his daughter in relation to demand for money.
He had sent for the accused and elders. The accused and elder persons from Adigere came to the mosque. The panchayatdars advised the accused not to demand money. After 3 months PW10 learnt about the death of Farzana.
From the cross-examination PW10, we find that the defence has sought to discredit his evidence for not producing documents. PW10 hay not deposed that the panchayat proceedings were reduced to writing. Therefore, non production of documents cannot be a ground to discard the evidence of PW10.
v) PW11 Nawab Sab is neighbour of the accused. PW11 is deposed that the accused demanded a sum of Rs. 10.000/- to purchase a TVS 50. PW1 pleaded his inability.
vi) PW12 Nazir Khan who is said to have attended the panchayat. He did not support the case of the prosecution and he was declared as hostile witness.
On appreciation of the evidence of above witnesses we find that though their evidence is not consistent yet their evidence indicates that the accused was sending the deceased to her parental house to bring money. The deceased had visited her parental house several times. As the economic condition of PW1 was not sound, the deceased was returning back with empty hands.
It is the case of the prosecution that or. 18.4.2005 at 8 a.m. the accused picked-up quarrel with the deceased for not bringing money from her parental house, doused kerosene and set her on fire. From the tenor of cross examination of prosecution witnesses and the statement filed by the accused after his examination under section 313 Cr.P.C. and the evidence of defence witness (DW4), we find that the accused has not disputed that on 18.4.2005 at about 8 a.m. the deceased suffered burn injuries in the house of accused. The accused has contended that the deceased was preparing tea, there was stove burst and she was engulfed by flames. The accused extinguished the flames and shifted the deceased to the General Hospital at Chintamani. After preliminary treatment he shifted her to Victoria Hospital at Bangalore.
Thus, we have two versions. The version of the prosecution is that the accused had set the deceased on fire. The version of the defence is that the deceased accidentally caught fire while lilting a kerosene stove.
(i) PW6 Narayan Swamy is the neighbour of accused. He has not supported the case of the prosecution. He has deposed that deceased suffered burn injuries due to stove burst. Even during cross-examination by the Learned Public Prosecutor he has not given any incriminating evidence against accused. During cross-examination by the learned counsel for the accused he has deposed that accused was extending financial assistance to PWs 1 and 5 and accused was earning about Rs. 8,000/- per month. The evidence of PW6 that the accused was extending financial assistance to PWs 1 and 5 cannot be accepted. When PWs 1 and 5 were cross-examined by the learned counsel for the accused, there were no suggestions that they were getting financial assistance from the accused. The accused by eliciting these answers from PW6 has made an unsuccessful attempt to establish that he was financially sound and he had extended financial assistance to PWs 1 and 5.
(ii) PW7 Chand Pasha is the neighbour of accused. He has deposed that on the date of incident at about 9.00 a.m some persons informed him that Farzana suffered burn injuries due to stove burst. PW7 came to the house of first accused and shifted Farzana to General Hospital at Chintamani. PW7 has deposed that Farzana was in a condition to speak and slated that she suffered bum injuries due to stove burst. PW7 has been declared as hostile witness. During cross-examination PW7 has deposed that by the time he reached the house of first accused, several persons were pouring water on the deceased. He has denied the suggestion that deceased told PW7 that accused set her on fire by dousing kerosene. During cross-examination by the learned counsel for the accused PW7 has deposed that the deceased gave statements that she suffered burn injuries due to stove burst before the doctors in General Hospital at Chintamani and Victoria Hospital at Bangalore. This witness has also deposed that accused was extending financial assistance to PWs 1 and 5. PW7 has not deposed that in his presence the doctors in General Hospital at Chintamani had enquired the deceased. He has not deposed he was present when doctors enquired the deceased in Victoria Hospital at Bangalore. Therefore, we hold the defence had made unsuccessful attempts through evidence of this witness to establish that the deceased suffered burn injuries due to stove burst.
(iii) PW13 Rahimunnisa is the landlady of the house in which the accused and deceased were living. PW13 has deposed that accused was living in her house as a tenant and Farzana was living with him. She learnt about the death the Farzana. During cross examination by the learned counsel for the accused PW13 has deposed that the deceased had suffered burn injuries. When PW13 enquired deceased about the burn injuries the deceased told that she suffered burn injuries due to stove burst.
PW13 has deposed that she learnt from others about the death of Farzana. PW13 has not deposed that she has visited the house of accused after the incident. It is yet another unsuccessful attempt made by the accused to establish that the deceased suffered burn injuries due to stove burst.
(iv) PW15 M. Lingaiah was working as the Executive Magistrate at Chintamani. He has deposed that on 24.4.2005 has requested by the Investigating Officer he held inquest on the dead body of Farzana in Victoria Hospital at Bangalore. He recorded the statements of the police officials and relatives of the deceased. During inquest he came to know that there was dowry demand by the accused.
(v) PW 18 M.K. Manjunath the then Asst. Engineer at Chintamani had prepared the sketch Ex. P12 He has given evidence regarding the contents of Ex. P12. He has admitted that he prepared the sketch of place of occurrence as shown by the police.
(vi) PW19 Dr. K.H. Manjunath conducted postmortem examination on the dead body. PW19 has deposed that on 24.4.2005 between 6.20 and 7.15 p.m. conducted postmortem on the dead body of Farzana in the mortuary at Victoria Hospital. He has deposed that the death was due to septicemia, there was infection of bum injuries and bad smell was emanating from the bum injuries. The deceased had suffered 90% burns.
During cross-examination by the learned counsel for the accused PW19 has deposed that even after suffering 90% burn injuries Farzana was in a position to speak. When he conducted postmortem, smell of kerosene was not emanating from the deadbody. He has deposed that if Farzana was set on fire by dousing kerosene, the skin would have become black. PW19 has specifically stated that deceased had not suffered bum injuries due to stove burst. He has deposed there are no possibilities of Farzana having sustained burn injuries due to stove burst.
We have the divergent versions regarding the statement said to have been made by the deceased before the doctor in General Hospital at Chintamani and also before the doctors in Victoria Hospital at Bangalore.
PW25 Dr. Jayaram, has deposed, that during the relevant period he was working in General Hospital at Chintamani. On 3.8.4.2005 at about 10.15 a.m. the accused brought his wife Farzana to the hospital. Farzana had suffered burn injuries. Farzana informed him that she suffered burn injuries due to stove burst. Farzana had suffered 90% burn injuries. He gave first aid treatment and advised the accused to shift her to Victoria Hospital. When the first accused brought Farzana, none had accompanied them. PW25 had given a letter to the COD Police has per Ex.P17.
During cross examination by learned counsel for the accused PW25 has deposed that when Farzana was brought to General Hospital she was in a condition to speak, he enquired Farzana and learnt that she suffered burn injuries due to stove burst.
In order to verify the veracity of evidence of PW25, we have gone through the contents of Ex. P17. After investigation was taken over by the Police inspector, Anti-Dowry Cell, the police, inspector had requested PW25 to send the accidents register extract relating to the treatment given to Farzana on 18.4.2005 in General Hospital at Chintamani. PW25 instead of sending the extract of accident register had written a letter as per Ex.P17 stating that deceased had given history of burns due to stove burst. When the Police inspector. Anti-Dowry Cell requested to send the accident register extract, in all fairness PW25 should have sent certified or true extract of accident register to the Police Inspector to apprise him of what transpired when deceased was brought to General Hospital at Chintamani. PW25 has deposed that accused and Farzana informed him that Farzana had suffered burn injuries due to stove burst. However, from the contents of Ex.P17, we find that PW25 has mentioned that injured alone had given statement that she suffered burn injuries due to stove burst. Therefore, we cannot place reliance on evidence of PW25 and also on contents of Ex.P17 to come to the conclusion that at the first instance the deceased had given a statement before PW25 that she suffered burn injuries due to stove burst.
After first aid treatment in General Hospital at Chintamani, the accused shifted deceased to Victoria Hospital at Bangalore. PW29 Dr. Shoba was working as Sr. Medical Officer at Victoria Hospital. PW29 has deposed that on 18.4.2005 at about 1.30 p.m. a patient had been referred from General Hospital at. Chintamani. The patient had suffered burn injuries. She was admitted in burns ward. The injured Farzana informed her that she suffered burn injuries due to stove burst. PW29 had not prepared any contemporaneous document regarding the statement: given by Farzana before her. She had not made any entries in the accident register. Therefore, the evidence of PW29 is not supported by documentary evidence. In the circumstances, it is not possible to place reliance on the evidence of PW29 about the statement said to have been made by deceased.
PW-29, Dr. Shobha has deposed that she prepared document as per Ex.P-19. This document does not disclose any statement said to have been given by the deceased as deposed by PW-29. On the obverse of this document, it is stated that the patient is semi conscious, unable to give oral statement. Therefore, the contention of the defence that Ex.P-19 is a dying declaration made by deceased has no basis.
The defence has placed much reliance on the entries made in the case sheet when deceased was being treated in burns ward of Victoria Hospital. A copy of the case sheet is available on records. However, the copy of the case sheet is not marked. We are also unable to find out as to how the copy of this case sheet became the part of Court records The Doctor who had made entries in the case sheet was not examined before the trial Court. On perusal of the copy of the case sheet, we find that following entries were made at 2.15 p.m., on 8.4.2005:
The patience is alert, conscious, physically and mentally fit to give statement.
The patient has given statement in Hindi The patient says that she sustained injuries when she was preparing tea over a kerosene stove which burst. The patient was taken to Chintamani Government Hospital. The incident took place at 8.00 a.m., at her resident at Chintamani and she was taken to Chintamani Government Hospital at 10.00 a.m. on 18.4.2005. Later she was referred to MBBC.
The above statement is true to my knowledge explained to me in my own language by the Doctor.
This document does not contain signature or thumb impression of deceased. There are sporadic smudges in the document. This document bears the signature of Chand Pasha examined as PW-7. PW-7, Chand Pasha has not deposed that in his presence the deceased made the aforestated statement in the Victoria Hospital at Bangalore at 2.15 p.m., on 18.4.2005. The Doctor who had attested the statement was not examined before the trial Court, even he was not cited as a witness. Therefore, the defence cannot be heard to say that this was the second dying declaration made by the deceased.
From the copy of the case sheet, we find that on 20.4.2005 at about 3.45 p.m., the Doctor by name Dr. Ramesha K.T had recorded that "the patient wants to change her statement and says that her husband has not come to look after her and she feels that he has abandoned her, she wants to speak truth about the incident.
On the same day, ft was recorded in the case sheet that "the patient wants to change the statement because previously she had given statement of accidental burns at the behest of her husband and now since nobody from her husband''s family is looking after her, she wants to speak the truth. Her present statement is that her husband Mustaq demanded Rs. 10,000/- from her and when she did not agree to bring money from her parental house, he poured kerosene and burnt her. Her husband requested her not to implicate him otherwise, he would be jailed and there would be nobody to look after the child."
The Doctors who recorded these statements were not examined before the trial Court. Therefore, the contents of the defence that deceased had given second dying declaration when she was admitted in Victoria Hospital, Bangalore cannot be accepted.
On the other hand, the contents of the statement would establish that the accused was present all along with deceased, had forced her to give the history of injuries due to stove burst, in order to save his skin. The accused appears to have induced his wife (deceased) to give history of injuries due to stove burst and not to reveal the truth of the incident in which event, he would be sent to jail and there will be none to look alter their child.
PW-30. Mohammed Rafi, the jurisdictional police Officer has deposed that after registering the case, he came to Victoria Hospital to record the statement of deceased and he had given a requisition to duty doctor. However, he was informed by the Duty Doctor that deceased was not in a condition to give statement. The copy of the requisition given by the jurisdictional Investigating Officer is marked as Ex.P-21.- It contains the endorsement given by the Medical Officer reading as hereunder:
Patient by name Farzana is not fit to give statement on 19.4.2005 at 9.40 p.m. as the patient has been given sedative. The jurisdictional Investigating Officer, after receiving this intimation requested the Victoria Hospital Police to inform him soon after deceased becomes fit to give a statement.
On the following day, at about 4.30 p.m., the Victoria Hospital Police requested PW-26, Chikka Bettaiah (the then Taluka Executive Magistrate of Bangalore East Taluk) to go to Victoria Hospital to record the statement of a patient by name Farzana.
PW-26 has deposed that on 20.4.2005 at 4.00 p.m., he received intimation to go to Victoria Hospital to record the statement of Farzana. He reached Victoria Hospital and met PW-27, Dr. M. Shankarappa who was in charge of burns ward and requested him to verify if the deceased was in a condition to giver her statement. PW-27, Dr. M. Shankarappa certified that deceased was conscious, oriented and was in a condition to give her statement.
PW-26 recorded the statement of deceased as per Ex.P-14. PW-26 has deposed that deceased gave her statement that her husband was demanding her to bring money. She was not able to bring money. Therefore, on 18.4.2005 at 8.00 a.m., he doused kerosene and set her on fire.
PW-26 dictated the statement to PW-20, B. Honnegowda, Police Constable, Victoria Hospital and he reduced the same into writing. Deceased Farzana affixed her LTM to Ex.P-14. When the statement of deceased was recorded PW-27, Dr. M. Shankarappa was present. He has deposed that PW-27. PW-20. deceased Farzana and PW-26 were the only four persons present in the burns ward.
The learned Counsel for accused referring to evidence of PW-26 would submit as per evidence of PW-5 that deceased did not know Kannada language. This evidence of PW-26 and contents of statement as per Ex.P-14 are false, in order to appreciate this submission, we have fully considered evidence of PW-26 and PW-5.
During cross-examination, PW-26 has deposed that deceased gave her statement in Kannada language. It was suggested to PW26-Chikka Bettaiah that deceased was educated and she knew to affix her signature. PW-26 has denied this suggestion.
At this juncture, it is necessary to state through the evidence of PW-5, Gulabjan, the defence has made unsuccessful attempt to establish that deceased was not knowing Kannada language.
We have gone through the relevant portion of PW-5, Gulabjan. We find, that PW-5 herself was not knowing any language except Urdu language. PW-5 has deposed that deceased was not knowing any other languages. But PW-5 has not deposed that deceased was not knowing Kannada language. The deceased was born and brought up in Karnataka, She was aged about 18 years at the time of incident. In the circumstances, the contention of the defence that deceased did not know to speak or understand Kannada language looks highly improbable.
PW-25, Dr. Jayaram who is stated to have recorded her statement, has not. deposed the language in which deceased had given statement before him. Therefore, the contention that Ex.P-14 is not the statement given by deceased cannot be accepted.
During cross-examination of PW-26, Chikka Bettaiah, the defence had made an attempt to establish that the Doctor had certified about the fitness of deceased after the statement as per Ex.P-24 was recorded.
In order to appreciate this contention, we have gone through tire contents of dying declaration marked as Ex.P-14 on 20.4.2005 at 5.30 p.m. Dr. M. Shankarappa, the Professor of Plastic Surgery who was in charge of burns ward has made a certificate reading as here under:
I have examined the patient. The patient is conscious, well oriented, mentally and physically fit to give statement and dying declaration recorded by Honnegowda, PC 6580, Victoria Hospital, in presence of Dr. M. Shankarappa, Chikka Bettaiah (Addl. Tahsildar, Bangalore East Taluk and sister Devaki. 22. PW-27, Dr. M. Shankarappa has deposed that on 20.4.2005 at 5.30 p.m., when he was working as the head of burns ward in Victoria Hospital, PW-26, Chikka Bettaiah along with PW. 20, Honnegowda came to burns ward and asked PW-27 if the deceased was in a fit condition to give her statement. PW-27 examined Farzana and found that she was conscious and physically and mentally fit to give a statement. Therefore, he wrote certificate as per Ex.P-14(c). PW-27 has deposed that the statement of deceased was recorded in his presence and deceased gave her statement in Kannada language. Except PWs. 20, 26, 27, Farzana and a nurse of the hospital, none else were present. He has deposed that PW-26 questioned deceased and answers were recorded by PW-20, Honnegowda to the dictation of PW-26. After the statement was recorded, Farzana affixed her LTM to her statement. Farzana gave a statement that her husband demanded to give money. She did not give money and therefore, he doused kerosene and set her on fire.
During cross-examination of PW-27, an unsuccessful attempt has been made to establish that PW-27 had given the certificate without examining injured. PW-27 was not present when the statement-Ex. P14 was recorded. PW-20 had fabricated the statement as per Ex. P14.
We do not find any substance in the suggestions put to PW-27. The evidence on record does not disclose that PWs. 26 and 27 were under the influence of police when dying declaration as per Ex.P-14 was recorded. The defence has no case that PW-1, Sheik Mustafa (working as loader in APMC yard at Kolar) had pressurized PWs. 26 and 27 to fabricate the dying declaration as per Ex.P-14. Therefore, when dying declaration as per Ex.P-14 was recorded, there was no intervention of the third parties. Even the jurisdictional Police Officer was not present.
Sri V. Anand, learned Amicus Curiae would submit that there were multiple dying declarations made by dsceased. The first statement was given by deceased before the Medical Officer at Chintamani namely, PW-25, Dr. Jayaram, wherein she has stated that she suffered burn injuries due to accidental stove burst and deceased had made a second statement before PW-29, Dr. Shobha.
In the discussion made supra, we have held that PW-25, Dr. Jayaram had not recorded the statement or deceased. He has deposed that the history of burn injuries was given by accused and deceased. At this juncture, it is relevant to state that deceased was taken to the hospital within two hours of the incident. In the circumstances, it looks probable that accused who shifted deceased to hospital, had given history of injuries as due to stove burst. Above all, PW-25 has not produced the accident register or its extract. On the other hand, he had addressed a letter as per Ex. P-17, which cannot be termed as the secondary evidence of entries made in the accident register. Therefore, the submission made by the learned Counsel regarding the first statement said to have been given by deceased cannot be accepted.
The learned Amicus Curiae would submit that soon after deceased was admitted to Victoria Hospital, she had given a statement before PW-29, Dr. Shobha stating that she had suffered burn injuries due to stove burst.
In the discussion made supra, we have referred to the evidence of Dr. Shobha and contents of Ex. P-19 to hold that PW-29 had not recorded the statement of deceased and Ex.P-19 indicates that deceased was semi conscious and she had been given sedatives. Therefore, the submission of learned Amicus Curiae that deceased has given second statement before PW-29, Dr. Shobha cannot be accepted.
The learned Amicus Curiae referring to the contents of Ex.P-14 would submit that PW-26 has not recorded the statement in his own hand writing. The certificate given by Dr. Shankarappa gives an indication that PW-27 has certified after the statement said to have been given by deceased was recorded by PW-26, Chikka Bettaiah. Therefore, the evidence of PW-27 does not disclose that deceased was in a fit condition to give her statement.
In support of this submission, learned Counsel has relied on the judgment of the Supreme Court in 2010 SAR (Crl.) 758 (in the case of Mukeshbhai Gopalbhai Barot Vs. State of Gujarat). We have gone through the decision of the Supreme Court and hold findings recorded therein are based upon the facts obtained therein. There were three dying declarations given by deceased. The first two statements completely exonerated the accused and the third one shrouded in suspicion as the clarity of the language used, the writing and the spacing of the words being very symmetrical indicate that this could not be the statement of a person who was on the verge of death.
In the instant case, the dying declaration as per Ex.P-14 was recorded at 5.30 p.m. on 20.4.2005. The deceased succumbed to injuries at 10.30 a.m. on 24.4.2005. Thus, the deceased was alive for three days after Ex.P-14 was recorded.
In the discussion made supra, we have held that there was no dying declaration recorded by the Investigating Officer or the competent authority before Ex.P-14 was recorded by PW-26.
In a decision reported in Laxman Vs. State of Maharashtra, , the Hon''ble Judges of the Supreme Court (Justice G.B. Pattanaik, Justice M.B. Shah. Doraiswamy Raju, Justice S.N. Variava and Justice D.M. Dharmadhikari, as they were then) have overruled the judgment of the Supreme Court reported in AIR 1999 SCW 3440 (in the case of Paparambaka Vs. State) and approved the judgment of the Supreme Court in AIR 1999 SCW 3727 (in the case of Koli Chunilal Vs. State).
The Constitution Bench of the Supreme Court has held as hereunder:
The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement, necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma and ORs. v. State of Andhra Pradesh the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji and Anr. v. State of Gujarat it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. it was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander v. State of Punjab wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.
The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur v. State of Punjab case, wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and ORs. v. State of Andhra Pradesh to the effect that "...in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured war, in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions be had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and ORs. v. State of Andhra Pradesh must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Another Vs. State of Gujarat, case.
As per the Constitutional Bench Judgment of the Supreme Court, the Court while deciding the credibility of dying declaration has to satisfy whether deceased was in fit mental condition to make dying declaration. It is also held that "the evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
In the case on hand, it is obvious from the evidence of jurisdictional Investigating Officer PW-30, Mohammed Rafi that he had not shown any mortal hurry to record the dying declaration. On 19.4.2005, the jurisdictional Police Officer after registering the case had visited Victoria Hospital and requested the Doctors for their opinion as to the fitness of deceased to give her statement. The Doctors on examination of victim gave an endorsement as per Ex. P-21 stating that the patient by name Farzana is not fit to given statement on 19.4.2005 at 9.40 p.m as the patient is being given sedative." Therefore, the jurisdictional Officer returned back to Chintamani Police Station and he had informed the Victoria Hospital Police to give intimation to him after deceased becomes fit to give her statement.
The statement of deceased as per Ex. P-14 was recorded at 5.45 p.m. on 20.4.2005. PW-27 Dr. M. Shankarappa was present when the statement was recorded and deposed that he had examined deceased Farzana for 5 or 10 minutes before certifying that she was mentally and physically fit to give statement. PW26-Chikka Battaiah after satisfying that deceased was in a fit state had recorded the statement of deceased.
At the risk of repetition, we state that when Ex.P-14 was recorded, none of the close relatives of deceased were present. The persons involved in recording the statement namely, PW-20, Honnegowda, PW-26. Chikka Bettaiah (Taluka Executive Magistrate), PW-27, Dr. M. Shankarappa were not under the influence of the Investigating Officer or the close relatives of deceased. From the evidence of the father and mother of deceased, we find that they could not afford to stay in Bangalore to look after their daughter. PWs.1 and 5 have deposed that after learning about the incident, they came to Victoria Hospital at about 8.00 p.m. on 18.4.2005 and stayed there for half an hour and returned back to Kolar. Therefore, we have no reasons to suspect the statements of PWs. 20, 26 and 27 and also the contents of dying declaration Ex.P-14. Above all, the evidence of these witnesses was not tainted with oblique motives.
In a decision reported in Dalip Singh and Others Vs. State of Punjab, , the Supreme Court has held:
A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
In the case on hand, there is nothing on record to indicate that PWs. 20, 26 and 27 had any grudge or grievance against accused to falsely implicate him. Even they were not aware of the name of the accused so also they were not aware of the close relatives of the deceased. Above witnesses were not under the influence of any kind when the statement as per Ex.P-14 was recorded.
In our considered opinion, the contents of dying declaration as per Ex.P-14 finds substantial support from the subsequent conduct of accused and the defence evidence led by him.
In a decision reported in Trimukh Maroti Kirkan Vs. State of Maharashtra, , the Supreme Court referring to the earlier judgments reported in Nika Ram Vs. State of Himachal Pradesh, , State U.P. Vs. Dr. Ravindra Prakash Mittal, , 2000 SCC (Cri) 40 (in the case of State of T.N. Vs. Rajendran) has held:
Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In the instant case, we find that after the examination of accused under 313 Cr.P.C accused has asserted that deceased caught fire and suffered burn injuries due to stove burst. The accused has filed further statement in continuation of his statement under 313 Cr.P.C reading as hereunder:
I submit that [ am the accused in the above case and I know the facts of this case. I submit that I have answered to the questions put to me in 313 statement in the above case. In continuation to the said statement, I state that I married to Farzana D/o. Sheikh Mastan of Kolar in the year 2004. the said marriage has been celebrated at my native village Hadigert Village, Chintamanl Taluk. The said Mastan is working as coolie at APMC, Kolar and earning Rs. 50/- per day, he had 8 children, wife, parents he is residing in a rented house paying monthly rent of Rs. 250/-. The daily maintenance of the family of the said Mastan is very difficult. I have proposed to marry Farzana on my own cost without any cost to the said Sheikh Mastan because the said Farzana is good looking and good conduct and character.
I submit that my father-in-law Syed Mstan used to take financial help from me for the maintenance of his family. I am running small unit manufacturing puffed rice out of paddy by engaging about three persons and earning monthly income of Rs. 15,000/-. My brother married long ago and he is residing separately with his wife and children and my mother is also residing with my brother in my house, I am residing with my wife, no one resides with us. I purchased out of my own earning about eight years back the T.V, VCR which are produced and marked in the above case and marked as MO''s. I also purchased the cot, almara etc., six years back out of my own earnings which are also produced and marked in the above case as MO''s. I have got bills for having purchased the same, the persons who sold the same to me are available, they give evidence before this Hon''ble Court.
I submit that on 18.4.2005 when I was preparing puffed rice outside my house, my wife Smt. Ferzana was preparing tea for me in the gas stove inside the house, my wife was wearing tight chudidar, while blowing gas to the said kerosene stove, the same burst, her said chudidar caught fire, she shouted, when I was outside my house immediately I came to her rescue, I took woolen bedsheet which was found in my house and I covered her whole body with the said woolen bedsheet and put off the fire, in the said process the said woolen bed sheet partly burnt. I also sustained small burn injuries on my hands, because of tight silk chudidar worn by my wife, the same struck to her body and the burns are more. immediately, my neighbors including PW-7 Chand Pasha came to my rescue. We took Ferzana to Chintamani Government Hospital, at the time of her admission to Hospital. The Doctors who got her admitted in the Hospital enquired her as to how she sustained the burn injuries, Ferzana has been examined by the Doctors at Chintamani confidentially, Ferzana was in good consciousness and in fit condition to give such statement, she disclosed that she sustained injuries due to stove burst while preparing tea in the house. Ferzana has been given first aid at Chintamani Hospital. the Doctors at Chintamani asked me to lake her to Victoria Hospital, Bangalore. We took her to the said Hospital, at the time of her admitting to Victoria Hospital, the Doctors confidentially enquired Ferzana about the burn injuries sustained by her, then also the said Ferzana disclosed to the Doctors that she sustained injuries due to stove burst while preparing tea in the house. Immediately, I sent message about the injuries sustained by Ferzana to her parents at Kolar and we took her to Bangalore.
I submit that in the Hospital at Victoria I was taking care of the said Ferzana, my mother and several of my villagers were present in the Hospital. My father-in-law and mother-in-law came at 9.00 p.m. on 18.4.2005 to Victoria Hospital, myself and my mother and several of our villagers were present. We explained how she sustained injuries due to stove burst, Ferzana has been given steroids and pain killers, she was fully unconscious state through out in the Hospital till her death, she never gave any voluntary statement at any time alter her admission into the hospital, except giving statement at the time of her admission. The COD police in collusion with Chintamani police, Tahsildar, Bangalore and the Doctors at Victoria Hospital created second voluntary statement as if Ferzana has given such statement. Ferzana never gave any second statement. The Chintamani police arrested me at Victoria Hospital only after the death of Ferzana. I have not been arrested at my native village. I never gave any statement before Chintamani police at any point of time. The same is concocted. In my house, the kerosene gas stove which was burst was present, 10 bags of paddy stored by me for preparing puffed rice was present, the burnt woolen blanket used to put off the fire on Ferzana was present. But the police never bothered to recover the same from my house. The persons from whom I purchased TV, VCR. cot, almairah are still alive and they are ready to disclose true facts before this Hon''ble Court. Hence. I may be permitted to produce the burnt woolen blanket, exploded stove, witness list and court notices be issued to the said witnesses in the interest of justice and equity.
The accused has examined DW-4 to prove the incident that took place in his house at 8.30 a.m.. on 18.4.2005.
DW-4, Zahid Khan has deposed that on the date of incident at 8.30 a.m., he had come to the house of accused to purchase stuffed rice. The accused informed his wife (Farzana) that Jawid had come and she should prepare tea. At that time, accused and DW-4 were sitting in the varrandah of the house of accused. The deceased was preparing tea by lilting the stove. At that time, they heard the sound of stove burst. Immediately, the accused and DW-4 rushed inside the house and found that the clothes of deceased had caught fire. The accused extinguished fire by covering the deceased with a blanket. Thereafter, they with the help of other villagers shifted the deceased to General Hospital at Chintamani.
During cross-examination by the learned Public Prosecutor, DW-4 has admitted when he saw the deceased, she had caught fire. He has admitted that he was not aware as to how the deceased caught fire. Thus, from the evidence of DW-4, we find that he is a planted witness. DW-4 in the examination-in-chief has deposed that deceased caught fire due to stove burst. In the cross-examination, DW-4 has deposed that he saw deceased for the first time. She was engulfed by fire. DW-4 made a categorical statement that several people gathered there and DW-4 did not know as to how the deceased caught fire.
We find from the written statement filed by the accused that on the date of incident, when his wife Farzana was preparing tea, accused was preparing stuffed rice. Deceased was blowing gas to the stove, which resulted in burst of stove and her chudidar caught fire. She shouted and the accused immediately came to her rescue. He took a blanket and covered her whole body. In the process, he had suffered burn injuries. Immediately, his neighbors including PW-7, Chand Pasha came to her rescue and shifted deceased to General Hospital at Chintamani. The accused has categorically stated that the stove which had exploded due to which the clothes of deceased came in contact with fire was preserved by him and he may be permitted to produce the exploded stove before the Court.
In the written statement filed by the accused. there is no mention of the presence of DW-4, Zahid Khan at the time of incident. The accused has stated that he had preserved the exploded stove and We may be permitted to produce the same before the Court. The accused having stated that he had preserved the exploded stove and he may be permitted to produce the exploded stove before the Court, did not produce the exploded stove before the trial Court.
During cross-examination of PW-1, it was suggested to him that accused in the process of extinguishing fire had suffered burn injuries to his left palm. Even in the written statement filed by accused, it is stated that he had suffered burn injuries to his hands, when he tried to extinguish the fire by covering a blanket on the deceased. The accused had taken the deceased to Government: Hospital, Chintamai and thereafter, he shifted the deceased to Victoria Hospital, Bangalore. If the accused had suffered burn injuries, he would have taken treatment in the above said hospital and he would have produced documentary evidence, such as injury certificate. The accused for the reasons best known to him, has not produced any documentary evidence. DW-4. who was said to be present when the incident took place has not deposed that accused had suffered burn injuries to his left palm or to his hands.
The accused has examined DW-2, Khawal Sha to prove that deceased suffered burn injuries due to stove burst. DW-2 has deposed that on the date of incident at about 8.30 a.m., he heard the cry from the house of accused. He ran to the house of accused. The deceased had caught fire. The accused was trying to extinguish the fire by covering deceased with a blanket. DW-2 Khawal Sha also helped accused and there was exploded stove near the place of incident. Thereafter, accused shifted deceased in an auto rickshaw. Other persons namely mother of deceased, Chand Pasha and the brother of accused namely, Sartaj also accompanied him to the hospital. DW-2 has produced the blanket, which according to him was used by accused to extinguish the fire.
During crass-examination, DW-2 has admitted that by the time he reached the house of accused, 10 to 15 persons had gathered and they were talking that deceased caught fire due to stove burst. DW-2 has categorically admitted that he did not examine the condition of the stove.
We find that: the evidence of DW-2 does not inspire confidence and does not stand test of preponderance of probabilities. DW-2 has produced the blanket which he had collected from the mother of accused. The accused has not stated that he had preserved the blanket after the accident to produce the same before the Court on 8.5.2006. If the accused had used the blanket to extinguish the same, the same should have beer found near the place of incident. The accused has not explained as to how the blanket had reached the house of his mother. Therefore, the evidence of DW-2 does not inspire confidence. The accused has examined DWs. 1 and DW3 to prove that he had purchased certain articles like almairah, a cot, a television and CD player much before the date of marriage.
On consideration of evidence of PWs. 1 and 5, we have not accepted the case of the prosecution in relation to the demand and acceptance of these articles as dowry by the accused. Therefore, there is no need to consider their evidence.
The investigation officer namely. Mohammed Raffiq (PW.30) has deposed that, he arrested the accused on 21.04.2005 and recorded his voluntary statement. The accused led the investigation officer and the punch witnesses to his house and showed a can containing kerosene oil and match-stick. Contrary to this the accused in his written statement filed after his statement was recording under section-313 of the Code of Criminal Procedure, has stated that, Chintamani Police (jurisdictional) police arrested him in Victoria hospital only after the death of his wife Farzana (on 24.04.2005) and he had never given any statement before the Chintamani police at any point of time and that, he was not at all arrested in his village, as deposed by the investigation officer. In order to ascertain the veracity of the statement made by the accused, we have gone through the records of the committal Court. The order sheet dated 21.04.2005 maintained by the committal court would reveal that. on 21.04.2005. the Police Sub-Inspector of Chintamani (jurisdictional police) produced the accused along with remand application through HC-147 and PC-213 stating that he was arrested in connection with the crime No. 56/08. registered for the offences punishable under Section-498-A, 307 of the Indian Penal Code read with Sections-3 and 4 of the Dowry Prohibition Act and the accused was remanded to the judicial custody till 04.05.2005.
The accused has not disputed that his wife Farzana succumbed to burn injuries at 10.30 a.m. on 24.04.2005. It is obvious that the accused has gone to the extent of filing written statement, denying his arrest and production before the jurisdictional Magistrate and order made by the Jurisdictional Magistrate remanding the accused to judicial custody on 21.04.2005. Therefore, we find that the accused has no regard for truth and an adverse inference could be drawn against the conduct of accused.
The learned Amicus Curiae appearing for the accused would submit that, the conduct of the accused is consistent with the conduct of an innocent person. If the accused had committed an act of pouring kerosene on the deceased and setting her on fire, he would not have shifted the deceased to Government hospital at Chintamani and latter to Victoria hospital at Bangalore.
In order to appreciate (his submission, we have scrutinised the evidence relating to events immediately after the incident, till the death of the deceased on 24.04.2005. The accused at the time of admitting the deceased to the Government hospital at Chintamani at 10.30 a.m on 18.04.2005 had informed the Medical Officer that deceased had suffered burn injuries due to stove burst. The same history was repeated before the Medical Officer at Victoria hospital when the deceased was admitted at 1.30 p.m on 18.04.2005. The accused, apart from filing his written statement, examined D.Ws. 1 to 4 and thereby, made an unsuccessful efforts to establish that, the deceased had suffered burn injuries due to stove burst. Therefore, an inference could be drawn that, the intention of the accused in accompanying the deceased to the hospital was to give wrong information that the deceased suffered bum injuries due to stove burst. In other words, to create an impression/theory that the deceased sustained burn injuries due to stove burst. The accused was aware that if the deceased were to give a true statement, he would be implicated. Thus, we find that the accused had offered false explanation and produced the false evidence to prove that the deceased had suffered burn injuries due to stove burst. Therefore, we hold that the conduct of the accused, subsequent to the incident and also during the trial would establish that he had attempted to suppress the incriminating circumstances appearing against him.
The learned Trial Judge has not considered the fact that the accused and the deceased were in the house, when the incident took place. The accused being the husband of the deceased owed a duty to come out with truth as to the circumstances under which the deceased had caught: fire. The learned trial Judge has dealt with the case, as if it is the accused and the deceased were strangers to each other. The learned trial Judge has completely ignored the settled principles of appreciation of evidence, in a case relating to unnatural death of a wife in the house of the husband, that too in the presence of the husband.
The learned trial Judge has rejected the contents of dying declaration (Ex. P14) and the evidence of PW. 26 and 27 stating that, the deceased had given three dying declarations. In the discussion made supra, we have held that the deceased had not given any other statement in the form of dying declaration. except the dying declaration marked as Ex.P. 14. Therefore, there were no three dying declarations, as held by the learned trial Judge. The learned trial Judge was not justified in discarding the evidence of PWs. 1 and 5. the parents of the deceased.
On careful scrutiny of the evidence of PWs. 1 and 5. we are not impressed about the oral dying declaration given by PWs. 1 and 5. Therefore, we have excluded such evidence from consideration and such exclusion does not tell upon the credibility of the contents of Ex.P. 14. the dying declaration given by the deceased.
The learned trial Judge was not justified in holding that the deceased did not know Kannada language. The learned trial Judge has failed to consider the evidence of PW. 25 Dr. Jayaram and the evidence of PW. 27 Dr. Snankarappa and evidence of PW.26 K.B. Chikka Bettaiah, the Taluk Executive Magistrate and PW. 29 Dr. Shobha, who have categorically stated that the deceased gave her statement in Kannada language. The learned trial Judge should not have been swayed away from the answer given by PW. 5, inasmuch as. there was no specific suggestion/question putforth to PWs.1 and 5 to the effect that, the deceased did not know Kannada language. The learned trial judge has ignored suggestion put to. PW.26 that the deceased was an educated woman.
The learned trial Judge has held that the deceased had given a statement before PW. 25 Dr. Jayaram stating that, she had suffered burn injuries due to stove burst. PW. 25 has deposed that the accused and the deceased together gave history of injuries as due to stove burst. Therefore, it cannot be treated as the statement exclusively given by the deceased. The learned trial Judge has failed to appreciate that the deceased had made second dying declaration before Dr. Shobha (PW. 29) in the Victoria hospital at Bangalore. In the discussion made supra, we have discussed the evidence of PW. 29 Dr. Shobha, by observing that PW.29 had not prepared any contemporaneous document. In Ex.P. 19, the memo dated 18.04.2005, which was written by PW.29, we do not find any statement much less the dying declaration given by the deceased. On the other hand, Ex.P. 19 would reveal that the deceased was in semi-conscious. The learned trial Judge has found fault with the Taluk Executive Magistrate (PW.26) for not recording the dying declaration in his own handwriting and also for not certifying that the statement given by the deceased was voluntary and without any influence. In the discussion made supra, we have referred to the decision of the. Constitutional Bench of the Supreme Court. There is no requirement of law that a dying declaration must necessarily be made to a magistrate. What is essential required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. The Supreme Court has held that certification by the doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise. Therefore, the finding recorded by the learned trial Judge on Ex.P. 14 cannot be sustained. There is certification about mental fitness of the deceased made by PW.27 Dr. Shankarappa on the top of Ex.P. 14. The learned trial Judge has found fault with the certification made by PW.27. Further, the learned trial Judge has failed to notice that, satisfaction of the person who records the dying declaration about the mental fitness of the deceased is the criterion for deciding credibility of the dying declaration. Even in the absence of certification, the dying declaration can be accepted, if it inspires confidence of the Court, if it is otherwise proved that the deceased was in a fit condition to give her statement. The learned trial Judge has disbelieved the contents of the dying declaration on the ground that the doctor who conducted the autopsy over the dead body of the deceased did not mention about impression of the ink on the left thumb of the deceased. At this juncture, it, is necessary to refer that the dying declaration Ex. P.14 was recorded at 5.30 p.m on 20.04.2005 and the deceased succumbed to the burn injuries on at 10.30 a.m. on 24.04.2005 and the postmortem report was conducted between 6.15 p.m to 6.20 p.m on 24.04.2005 PW.19 Dr. K.H. Manjunath who conducted postmortem has deposed that, while conducting postmortem he found that there were infected burns present over the body except dorsum of feet and soles and the burnt area was covered by unhealthy granulation tissue and foul smelling pus. The deceased was under treatment for three days after the incident. In the circumstances, it was not possible for PW.19 to notice the ink mark on the left thumb of the deceased. Added to this, it is not the case of the defence that the left thumb impression mark found on Ex.P. 14 (dying declaration) was that of some other person. In the discussion made supra, we have held that the person involved in recording the dying declaration of the deceased, namely PW. 20 (HC-2931), PW. 26 (Taluk Executive Magistrate) and PW.27 (Dr. Shankarappa) did not known the accused and they did not have any oblique motives to falsely implicate the accused in the crime We have held that, PW. 1 Shaik Musthaf, the fattier of the deceased who was working as coolie in the APMC, was not in a position to stay in Bangalore to look after his daughter. There were no unseen hands operating in bringing the dying declaration Ex.P. 14 into existence. The learned trial Judge has unnecessarily suspected the contents of the dying declaration Ex.P. 14 and the evidence of PWs. 20, 26, 27 and 29. The learned trial Judge has not considered the falsity of defence evidence and the false explanation offered by the accused, which in our considered opinion has provided strong circumstance against the accused. The conduct of the accused in giving false explanation with regard to his arrest and production before the Magistrate and an attempt made by him to establish that it is a case of stove burst and false evidence adduced on behalf of the accused would provide a strong circumstance against him. The conduct of accused leads to an adverse inference against him that at initial stages, he had not allowed the deceased to give her independent statement before the doctor at Chintamani. The learned trial Judge has relied on several decisions, however, ignored the settled principles of law relating to appreciation of evidence in a case where the wife suffered burn injuries in the house of her husband and in the presence of her husband. Therefore, we cannot sustain the impugned Judgment.
In view of the discussion made by us in the preceding paragraphs, we hold that the prosecution has proved beyond reasonable doubt that on 18.04.2005 at about 7.30 am or 8.00 a.m. in the house of the accused, the accused poured kerosene on his wife Farzana and set her on fire with the intention and knowledge of causing her death. The deceased developed septicemia due to burn injuries and died at 10.15 p.m on 24.04.2005 and therefore, we hold that, the accused guilty of an offence punishable under section 302 of the Indian Penal Code.
The learned Amicus Curiae submits that it is not a case one falling under the category of the rarest of rare case to attract the extreme penalty of death sentence and therefore, imposition of death sentence on the accused is not warranted. The learned Additional State Public Prosecutor does not contend that the would case fall under the category of the rarest of rare case. Therefore, we deem it proper to sentence the accused to undergo imprisonment for life. In the result, we pass the following order:
The appeal is accepted in part. The Judgment dated 29.06.2006 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court-III, Kolar in S.C. NO. 178/2005 as it relates to acquittal of accused for an offence punishable under section 302 IPC is set aside. The accused is convicted for an offence punishable under section 302 IPC. The accused is sentenced to undergo imprisonment for life and pay fine of Rs. 10,000/-, in default he shall undergo imprisonment for a further period of six months. The impugned judgment as it relates to acquittal of accused for offences punishable under sections 3 and 4 of the Dowry Prohibition Act is confirmed.
Office is directed to send back the lower court records forthwith along with a copy of this Judgment to the jurisdictional trial court to secure the accused to implement the sentence in terms of this judgment. We place on record the assistance rendered by Shri. V. Anand, learned Amicus Curiae and fix his fee/remuneration at Rs. 5,000/-.