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2013 DIGILAW 1105 (KAR)

Basavaraj v. State of Karnataka

2013-09-16

ANAND BYRAREDDY

body2013
Judgment : Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor. 2. The present appellant is accused No.1. The allegations against the present appellant and his mother, who was arraigned as accused No.2, was that the appellant had married Kaveri about four years prior to the date of the complaint. Their matrimonial home was at Muniyal village. Accused No.1, had secured employment at Mudalgi and therefore, he had taken a house on rent at Laxmi Nagar, Mudalgi, and he were living there with his wife. Accused No.2, the mother of the appellant had also joined them in their matrimonial home. It was the allegations that both accused Nos.1 and 2, used to harass Kavari and ill-treat her and subjected her to cruelty to fetch more dowry and were also suspecting her chastity. It is in this background, that unable to bear the constant cruelty meted out to her, she had committed suicide on 24.12.2007, by setting herself on fire. On the basis of the complaint lodged by the father of Kaveri, proceedings were initiated against the present appellant and his mother, and a case was registered in Crime No.1/2008. After investigation, the accused were charge sheeted alleging the offences punishable under Sections 498A and 306 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity). They were arrested and remanded to custody. After completion of investigation, the matter was committed to the Court of Sessions and a case was registered as S.C.No.103/2008. The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 16 witnesses as P.Ws.1 to 16, and produced 17 documents, which are marked as Exs.P1 to P17, apart from Material Object M.O.1. After completion of investigation, the matter was committed to the Court of Sessions and a case was registered as S.C.No.103/2008. The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 16 witnesses as P.Ws.1 to 16, and produced 17 documents, which are marked as Exs.P1 to P17, apart from Material Object M.O.1. The Court below after having recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity) and after having heard the rival arguments, had framed the following points for consideration: “i) Whether accused No.1 being the husband of deceased kaveri, having married her about 4 years prior to her death, brought her to Mudalgi and started living with her in a rented house at Laxmi Nagar and started ill-treating her by subjecting her to cruelty and used to harass her by assaulting her very often by raising objection to her every work and further suspecting her chastity and further having consumed liquor used to assault her thereby subjected her to both physical and mental cruelty which is of such a nature as is likely to commit suicide or to cause hurt to her person, thereby accused No.1 has committed an offence as alleged against him? ii) Whether the prosecution has further proved beyond doubt that, Kaveri wife of accused NO.1 committed suicide by setting fire on herself in the house of accused No.1 at Laxminager, Mudalgi on 24.12.2007 at about 8.30.p.m. and she committed suicide because of the willful conduct of harassment and ill-treatment towards her by accused No.1, thereby accused No.1 has abated commission of suicide by his wife Kaveri, thereby committed an offence as alleged against him.? iii) Whether the prosecution has further proved beyond doubt that whether accused No.2 being the mother of accused No.1 has also subjected the deceased Kaveri to cruelty by harassing her and ill-treatment abated Smt.Kaveri wife of accused No.1, to commit suicide on 24.12.2007 in the house of accused No.1, thereby accused No.2 has committed an offence punishable under Sections 498A and 306 read with Section 34 IPC? iv) For what order? 3. iv) For what order? 3. The Court below has answered point No.1, in the affirmative and point Nos.2 and 3 in the negative and had convicted accused No.1, of the offence punishable under Section 498A of IPC and acquitted him of the offence punishable under Section 306 of IPC and acquitted accused No.2, of the offences punishable under Sections 498A and 306, read with Section 34 of IPC, and sentenced the accused No.1-appellant herein to undergo rigorous imprisonment for a period of two years and directed to pay a fine of Rs.5,000/-and in default of payment of fine, the accused was directed to undergo rigorous imprisonment for a period of one year. It is that which is under challenge in the present appeal. 4. The learned counsel for the appellant would contend that the findings and conviction by the Court below is not supported by the material on record. In this regard, he would take this Court through the record to demonstrate that P.Ws.11 and 12, who are alleged Panchas or mediators, who had alleged that, they had visited the house of accused No.1, and advised him on several occasions not to ill-treat the deceased etc. Whereas, in the cross-examination of the said witnesses, there were inconsistent statements. In that, the said witnesses claim that they advised accused No.1, when he was on the outskirts of the village and not in his house, whereas in the examination-in-chief, it was stated otherwise. This would indicate that there is no veracity in the statements and no sustenance could be drawn from the said evidence, of alleged ill-treatment of the deceased by accused No.1. 5. Further, insofar as the evidence of P.W.5, who was none other than the mother of the deceased, who was not at all living along with the appellant and his wife, and admittedly, she was only visiting the matrimonial home of the appellant occasionally, and there was absolutely no instance of the said witness having complained of any ill-treatment meted out to the daughter of the said witness by the appellant. It is indeed, difficult for the Court below to have relied on the evidence of P.W.5, as regards the finding that the evidence of P.W.5, would support the case of the prosecution. It is indeed, difficult for the Court below to have relied on the evidence of P.W.5, as regards the finding that the evidence of P.W.5, would support the case of the prosecution. The said witness has admitted in so many words that, she had accompanied accused No.1, and the deceased on a pleasure tour for more than eight days, and there was no instance of any ill-will or ill-treatment by the appellant insofar as the deceased was concerned. This admission is inconsistent with her other statements of alleged ill-treatment, which she was not capable of witnessing, as she was not living along with the appellant and his wife. Further, insofar as the evidences of P.Ws.2 to 4 are concerned, they have not corroborated the evidence of P.Ws.11 and 12, as regards the advice given to the appellant from time to time, not to allegedly ill-treat the deceased etc. There is a total contradiction between the statements made by those witnesses and P.Ws.11 and 12. Significantly, the major reliance placed by the prosecution that Ex.P10, which is the alleged dying declaration of the deceased, cannot be considered at all, as is evident from the circumstances. Admittedly, the deceased was admitted to hospital at 11.20 p.m. on 24.07.2007, with 95% burn injuries and the alleged dying declaration is said to have been recorded at 4.20 a.m. on 25.07.2007. From a reading of the same, the statements recorded by the Taluka Executive Magistrate is a detailed one, stated in a cogent and clear fashion, which is not expected to be made by a person who has suffered 95% burn injuries, and was possibly semi-conscious. The medical practitioner, who has certified that the deceased was in a fit condition to make a statement, has not endorsed the statement at its foot. A plain reading of the said statement would indicate that it was a mere reflection of the complaint and it was apparently a statement dictated by the complainant or his other family members, and could not have made by the deceased, who was in a severe condition with 95% burn injuries. Therefore, the Court below having placed reliance on the same, cannot be sustained. Therefore, the Court below having placed reliance on the same, cannot be sustained. It is for this reason, that the Court below has not found the appellant guilty of any offence punishable under Section 306 of IPC, but has restricted the conviction for the offence punishable under Section 498A of IPC and therefore, it is apparent that the evidence placed before the Court was not satisfactory and the punishment imposed is mechanical. Merely because there was a death of the wife of the appellant and having regard to the seriousness of the allegations made, which however could not be sustained at all. Therefore, the learned counsel for the appellant seeks that the appeal be allowed and the judgment be set aside. 6. While on the other hand, the learned Additional State Public Prosecutor would seek to justify the judgment of the Court below. 7. From the material available on record, admittedly, the appellant and his wife were living independently. It was accused No.2, the mother of the appellant, who was also living with them, except an infant who was seventeen months old at the time of the incident, there was none else living in the matrimonial home. Therefore, the witnesses were merely claiming that there was alleged ill-treatment and that they had advised the appellant against such ill-treatment. Beyond this, there is no direct evidence of any such alleged ill-treatment. Therefore, to proceed on the basis of such evidence of the witnesses having advised the appellant not to ill-treat the deceased and to live in harmony and thereby to conclude that there was constant ill-treatment and cruelty of such a degree to drive the deceased to commit suicide, is not a circumstance that can be readily accepted. 8. The other evidence which is strongly relied upon by the prosecution to bring home the charges is the alleged dying declaration, at Ex.P10. The said document as rightly pointed out by the learned counsel for the appellant, was said to have been recorded four hours after the deceased had suffered burn injuries to an extent of 95% on her body. Therefore, it is not clear as to whether the deceased was in a position to make such a statement. The said document as rightly pointed out by the learned counsel for the appellant, was said to have been recorded four hours after the deceased had suffered burn injuries to an extent of 95% on her body. Therefore, it is not clear as to whether the deceased was in a position to make such a statement. The medical practitioner having certified that the deceased was in a fit condition to make such a statement is a medical miracle, as it is not expected that a person who had suffered 95% burn injuries, would be capable of making any statement at all. It is further perplexing that a detailed statement as recorded by the Taluka Executive Magistrate with such cogency and particulars could be made by a person who was almost on the verge of death. The rough translation of the document, which is in Kannada language, is reproduced hereunder. The same reads as follows: “Dying Declaration On receipt of information from the Sub-Inspector of Police, APMC Police Station, Belgaum vide his letter No.Nil. dated 25.12.2007 of the burn injuries suffered by Smt.Kaveri Basavaraj Badiger, aged 20 years, resident of Mudalagi, Taluka: Gokak, who has been admitted to KLE Hospital, Belgaum for treatment, I Shri.A.M.Patagondi, Taluka Executive Magistrate, Belgaum, visited the Burn Ward, LGO-6, wherein the injured Smt.Kaveri was being treated, and after ascertaining from the Medical Officer that the injured is mentally and physically fit to give statement, I have recorded her statement as follows:’ My maternal house is at Kalloli village of Gokak Taluk. My husband’s house is at Muniyal. I got married four years ago. My husband is employed in KEB office at Mudalagi. I have a female child aged about 17 months and we are residing at Mudalagi. My husband is addicted to alcohol. He comes home consuming liquor and abuses me doubting my fidelity, because of which, I am frustrated in life. Yesterday, my sister-in-law had come from Muniyal to go to Kalloli Hanamant Jatra. At that time, myself, my husband and Kamala were present in the house. Yesterday evening between 6.30 p.m. to 7.00 p.m., my husband after assaulting me was sitting outside the house with his sister, and at that time, I poured kerosene on my person and was set on fire. At that time, myself, my husband and Kamala were present in the house. Yesterday evening between 6.30 p.m. to 7.00 p.m., my husband after assaulting me was sitting outside the house with his sister, and at that time, I poured kerosene on my person and was set on fire. On hearing my cries, my husband and his sister Kamala rushed into the house and my husband had put-off the fire by pouring water on my person. Thereafter, he took me in a Cruiser vehicle to Kalloli and from there, I was taken to Gokak where my father had hired an Indica Car and admitted to this hospital. It is unable to bear the torture meted out by my husband and being frustrated in life, I have set myself on fire. The above contents were written as stated and read over to me, which are correct.” 9. Therefore, from the reading of the above, it is highly difficult to accept that such a detailed and cogent statement could be made by a person, who had suffered 95% burn injuries, and the statement recorded as if it was in the third person, by Taluka Executive Magistrate would certainly lead to a presumption that it was a reflection of the complaint and the allegations against the accused made in the complaint. Such a statement, in the opinion of this Court, would not have been made by the deceased, at the time, it was made. In the absence of any other direct evidence, clearly implicating the appellant of having meted out such cruelty, of a degree which would have driven the deceased to commit suicide, it cannot be held that the prosecution had established its case beyond all reasonable doubt. It is this doubtful circumstance, which apparently prompted the Court below to restrict the conviction to an offence punishable under Section 498A of IPC and only against accused No.1, because there was a death of the wife of the appellant and the allegations were serious in nature. Even from the dying declaration, it is evident that the deceased had set herself ablaze, while others were at home including accused No.1, and that it was allegedly on account of the constant cruelty meted out to her, in respect of which, there was only indirect evidence of the several witnesses, which again was not consistent. Even from the dying declaration, it is evident that the deceased had set herself ablaze, while others were at home including accused No.1, and that it was allegedly on account of the constant cruelty meted out to her, in respect of which, there was only indirect evidence of the several witnesses, which again was not consistent. Therefore, it cannot be said that the Court below was justified in even finding the appellant guilty of the offence punishable under Section 498A of IPC. Consequently, the appeal is allowed. The conviction of the appellant is set aside. The appellant stands acquitted. The fine amount, if any paid by the appellant shall be refunded to him. The bail bond furnished stands cancelled.