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2013 DIGILAW 138 (KAR)

STATE OF KARNATAKA v. BABU

2013-02-05

H.S.KEMPANNA, K.L.MANJUNATH

body2013
JUDGMENT H.S. KEMPANNA, J.-The State has preferred this appeal challenging the judgment and order of acquittal passed by the Ad-hoc District and Sessions Judge and Presiding Officer, Fast Track Court, Ramanagaram dated 31.8.2007 passed in S.C. No. 237/2005. 2. The respondents were tried for the offences punishable under Section 498A and 304B, 302 read with 34 of IPC and for the offences punishable under Sections 3 and 4 of the D.P. Act. 3. The case of the prosecution in brief is that A2 and A3 are the parents of A1. A1 had married deceased Savitha, daughter of PW13 on 5.6.2003 at his village Kallanakuppe Maralavadi Hobli, Kanakapura Tq. It is the case of the prosecution that at the time of marriage negotiations, all the accused had demanded a sum of Rs. 1,00,000/-, 15 sovereign of gold as dowry and it was settled for Rs. 50,000/- cash, one gold bracelet, gold chain and one gold ring totally weighing 5 sovereigns towards dowry and Rs. 25,000/- for marriage expenses and at the time of marriage Rs. 50,000/- and gold ornaments were given as dowry. After the marriage Savitha was residing with A1 and A3. After sometime accused started demanding to bring additional dowry of Rs. 25,000/- and on account of the same they were ill-treating the deceased. It is also the case of the prosecution that A1 and A2 were bringing pressure on the deceased Savitha to bring a sum of Rs. 30,000/- from her parents to enable A1 to purchase scooter. Since the demand of A1 to A3 could not be fulfilled by the parents of deceased, A1 and A2 subjected the deceased to ill-treatment. It is also the case of the prosecution that on 27.3.2004 at about 8 a.m. A1 asked the deceased Savitha to bring money from her parents house. As she resisted, he poured kerosene on her and set her ablaze. She was immediately shifted to Victoria hospital where she succumbed to the injuries on the same day at about 6.00 p.m. The statement given by the deceased at about 4.00 to 5.00 p.m. at Victoria hospital, PW18-Mariswamy PSI was recorded as per Ex.P16 and he registered the case in Crime No. 48/2004. PW17 Dr. Gurumurthy was present when the deceased gave the statement and the case was registered for the offence punishable under Sections 498A and 304 read with 34 of IPC. PW17 Dr. Gurumurthy was present when the deceased gave the statement and the case was registered for the offence punishable under Sections 498A and 304 read with 34 of IPC. Since she succumbed to the injuries at about 6.30 p.m. the case was converted into an offence under Section 304B and 302 of IPC and also for the offence punishable under Section 3 and 4 of the DP Act. The accused pleaded not guilty and they claimed to be tried. In order to bring home the guilt of the accused the prosecution relied upon the evidence of PWs 1 to 18, exhibits P1 to P17 and MOs 1 to 7. No defence evidence was let in by the accused. The accused also denied the incriminating circumstances relied upon by the prosecution while answering the questions under Section 313 of Cr.P.C. The learned Sessions Judge after hearing the learned Public Prosecutor and the defence counsel formulated the following points for its consideration :- Point No. 1: Whether the prosecution has proved beyond reasonable doubt that during marriage negotiation of A1 with Savirtha (deceased) prior to 05.06.2003 in the house of PW-13 Jayamma at Chikkabejjalahatti village. Maralavadi Hobli, Kanakapura Tq., B'lore Rural District A1 to A3 have demanded Rs. 70,000/- and gold ornaments weighing 15 sovereigns towards dowry from CW-1 and PW-13 and thereby A1 to A3 have committed the offence punishable under Section 4 of the Dowry Prohibition Act? Point No. 2: Whether the prosecution has proved beyond reasonable doubt that on the date of marriage of A1 with Savitha, i.e., on 05.06.2003 in the house of the accused at Kallanakuppe village, Maralavadi Hobli, Kanakapura Tq., B'lore Rural District A1 to A3 received cash of Rs. 75,000/- gold ornaments weighing 15 sovereigns towards dowry from CW-1 andPW-13 and thereby A1 to A3 have committed the offence punishable under Section 3 of the Dowry Prohibition Act? Point No. 3: Whether the prosecution has proved beyond reasonable doubt that about 9 months prior to 27.03.2004 A1 to A3 in furtherance of their common intention of extracting more dowry subjected Savitha to cruelty in the house of A1 to A3 at Kallanakuppe Village, Maralavadi Hobli, Kanakapura Tq., B'lore Rural District and thereby A1 to A3 have committed the offence punishable under Section 498A read with 34 of IPC. Point No. 4: Whether the prosecution has proved beyond reasonable doubt that on 27.03.2004 at about 6 a.m. in the house of the accused at kallanakuppe village, Maralavadi Hobli, Kanakpura Tq., B'lore Rural District A1 to A3 in furtherance of their common intention of extracting additional dowry subjected Savitha to cruelty and since Savitha could not tolerate dowry related harassment, poured kerosene on herself and set fire and the death of Savitha that occurred, on 27.03.2004 at 6 p.m. was due to the dowry related harassment and thereby A1 to A3 have committed the offence punishable under Section 304B read with 34 of IPC? Point No. 5: Whether the prosecution has proved beyond reasonable doubt that on 27.03.2004 at about 8 a.m. A1 to A3 in furtherance of their common intention of commission of murder of Savitha in their house at Kallanakuppe Village, Maralavadi Hobli, Kanakapura Tq., B'lore Rural District A2 and A3 instigated A1 for commission of murder of Savitha and A1 set fire on Savitha and thus A1 to A3 have committed murder of Savitha and thus guilty of the offence punishable under Section 302 read with 34 of IPC? Point No. 6: What order? After considering the entire evidence let in by the prosecution and the material before it, the learned Sessions Judge came to the conclusion that the prosecution has failed to bring home the guilt of the accused. Accordingly, answered point Nos. 1 to 5 in the negative and that the accused were acquitted for the aforesaid offences by the judgment and order dated 31.8.2007. Being aggrieved by the same, the present appeal is filed.3. It is the case of the Addl. Government Pleader Sri. Sampangiramaiah that the Sessions Court has committed an error in not appreciating the evidence properly. According to him the prosecution has proved the guilt of the accused beyond reasonable doubt by relying upon the evidence of PW17-Dr.Gurumurthy before whom the deceased had made dying declaration as per Ex.P16 and that of the eye witnesses viz. the neighbours who have seen the incident and have categorically deposed before the Court regarding the deceased sustaining burn injuries. The evidence let in by the prosecution has not been appreciated by the learned Sessions Judge and has erroneously acquitted the accused. In the circumstance he requests the Court to re-appreciate the entire evidence and reverse the finding of the Sessions Court. 4. The evidence let in by the prosecution has not been appreciated by the learned Sessions Judge and has erroneously acquitted the accused. In the circumstance he requests the Court to re-appreciate the entire evidence and reverse the finding of the Sessions Court. 4. Per contra, the learned counsel for the respondents, submits the Sessions Court has rightly appreciated the evidence let in by the prosecution and acquitted the accused persons. According to him it isA1 and A3, husband and father-in-law of the deceased, who had shifted the deceased from their village Kallanakuppe in Kanakapura Taluk to Victoria Hospital immediately after the fire accident and the deceased Savitha sustained burn injuries while pouring kerosene into the stove and that the respondents were in no way connected with the fire accident. He further contends that at about 10.30 a.m. on 27.3.2004 deceased has given a statement on her own before the doctor who treated her at Victoria hospital stating that she poured kerosene and set herself on fire and it is also the case of the respondents that the prosecution has relied upon the evidence of Doctor Gurumurthy who has deposed that a second statement was given by the deceased Savitha at about 3.30 p.m. in his presence and also at 4.00 p.m. as per Ex.P16. According to him when the deceased gave the second statement before him, she stated that it is A1 who had poured kerosene and set her ablaze, but as per Ex.P16, it is on account of the instigation of A2, A1 was demanding money and that it was not possible for her to tolerate the humiliation and torture given to her and it is A2 who had poured the kerosene and set her ablaze. Therefore, he contends that there are three different versions and the second statement said to have been given by the deceased before PW17 Dr. Gurumurthy is not forthcoming and has not been relied upon by the prosecution. He further contends even the first statement said to have been given by the deceased at about 10.30 a.m. at Victoria hospital is also not relied upon by the prosecution, which entertains a doubt. He further contends that the neighbours who had been examined by the prosecution as eye witnesses have not supported the case of the prosecution, including the family members of the deceased viz. mother, brother and sister and brother in law. He further contends that the neighbours who had been examined by the prosecution as eye witnesses have not supported the case of the prosecution, including the family members of the deceased viz. mother, brother and sister and brother in law. According to him there was no demand for dowry by the accused persons. He further contends that the marriage was celebrated at the cost of the accused and towards the marriage expenses, a sum of Rs. 50,000/- was paid which cannot be termed as dowry. According to him as per the custom the bride's parents have to celebrate the marriage at their costs. Since the parents of the deceased requested the accused persons to celebrate the marriage a sum of Rs. 50,000/- was paid, but even according to the evidence of the mother of the deceased PW-13 that the respondents had spent much more than what was paid by them and on their own only to make good a part of the expenditure incurred by the respondents a sum of Rs. 50,000/- was paid. In the circumstances he requests the Court to dismiss the appeal. 5. Having heard the learned counsel for the parties there is no dispute with regard to the death of Savitha on account of the burn injuries. According to the respondent it is a suicide and not homicide. Therefore, what is to be considered in this case is:- "(1) Whether the appreciation of evidence by the Sessions Court is just and proper and; (2) Whether the prosecution has proved beyond reasonable doubt that A1 to A3 were responsible for pouring kerosene and setting the deceased ablaze? 6. It is not in dispute that the deceased sustained burn injuries at about 8.00 a.m. on 27.3.2004 at Kallanakuppe village in the residence of A1. It has come in the evidence that A2 and A3 were residing under a separate roof. PW1 is the neighbour. According to him on the date of incident at about 8.00 a.m. he heard cry of the deceased and he came out of the house and saw the deceased coming out of the house with flames and with the help of neighbours, fire was extinguished and she was shifted to the hospital by A1 and others. PW1 is the neighbour. According to him on the date of incident at about 8.00 a.m. he heard cry of the deceased and he came out of the house and saw the deceased coming out of the house with flames and with the help of neighbours, fire was extinguished and she was shifted to the hospital by A1 and others. He has also stated in his cross examination that A2 and A3 were residing separately and A1 was residing with the deceased separately and it is also stated that the relationship between A1 and the deceased was cordial and that the houses of A2 & A3 was far away. Similarly the other neighbours PWs 2 to 5 have also not supported the case of the prosecution in full. According to PWs 3 and 4 in their cross examination have admitted that the deceased sustained burn injuries on account of accidental fire and it is not their case that it is A1 and A2 were responsible for the fire accident. PW-6 the brother in law of the deceased has also not supported the case of the prosecution. PW7 AEE is the person who has drawn the sketch as per Ex.P7, his evidence is of no use. PW8 is one Kariyappa who is a relative of the deceased and he has only deposed that deceased died due to burn injuries and he is not an eye witness. PW 9 brother of the deceased has admitted that after the marriage the deceased and A1 were cordial and they were living separately and he has also admitted that A1 did not demand for dowry at any point of time from his parents. According to the evidence of PW13-Jayamma, mother of the deceased, it is PW9, brother of deceased, was looking after the financial aspects of the family. Therefore, if PW9 was looking after the financial aspects of the family, if there is any dowry demand, it is for PW9 to satisfy the alleged demand of A1. According to PW9 A1 to A3 had shifted the deceased to Victoria hospital and they were in the hospital when he visited the hospital. He also stated that his sister Savitha sustained accidental injury and not on account of the harassment meted out to her by A1 to A3. We have also seen the evidence of PW17 Dr. Gurumurthy. Ex.P15 is the case sheet maintained by Victoria hospital. He also stated that his sister Savitha sustained accidental injury and not on account of the harassment meted out to her by A1 to A3. We have also seen the evidence of PW17 Dr. Gurumurthy. Ex.P15 is the case sheet maintained by Victoria hospital. It has also come in the evidence of the doctor that the deceased had sustained 91% of the burn injuries and they are of III degree. For the reasons best known to the prosecution, the statement given by the deceased when she was admitted to Victoria hospital is not produced before the Court. PW17 has also stated that the deceased gave a statement before him on 3.30 p.m. which is not produced by the prosecution. It has come in the evidence of the doctor that in order to relieve off the pain of the deceased morphin was injected. PW17 admitted that if morphin is injected the patient will not be conscious and goes to sleep on account of sedation. But for the reasons best known to the prosecution, the case sheet maintained by the hospital is not produced. If such document is produced this Court would have been in a better position to appreciate the condition of the patient at 10.30 a.m. and the nature of treatment given to her till she succumbed to the injuries on same day at about 6.00 p.m. If the case sheet had been produced this Court could have appreciated whether she was in a position to give a statement as per Ex.P16. We also entertain a doubt regarding the genuineness of Ex.P16, because PW17 in one breath says that the deceased was in sedation as she had been injected morphin to relieve the pain. In another breath he says that she has suffered 91% of injuries of III degree and in such condition whether it is possible to give statement as per Ex.P16. Even according to PW17 there are three statements given by the deceased at 3 different times on the same day. One at 10.30 a.m. making allegations against A2, again at 3.30 p.m. making allegations against A1 and again, she has given statement as per Ex.P16. By looking into the endorsement made by PW17 this Court entertains a doubt as to whether this statement has been made after recording the statement as per Ex.P16 as it looks like insertion at the top of the page. By looking into the endorsement made by PW17 this Court entertains a doubt as to whether this statement has been made after recording the statement as per Ex.P16 as it looks like insertion at the top of the page. PW17 has further stated that the head and neck portion were completely burnt. Even larynx and treches were also burnt. PW14 is the person who conducted autopsy. Ex.P14 is the post mortem report. PW14 has admitted that if larynx is burnt to IIII degree, it is not possible for such person to speak and in such circumstances, it may not be safe for any Court to rely upon Ex.P16 and the evidence of PW17 in view of the contradictory statement given by him about three statements said to have been given by the deceased at different intervals on the same day. When the mother, brother and sister and the brother-in-law of the deceased has deposed before the Court that there was no demand for dowry and the amount of Rs. 50,000/- was paid towards the marriage expenses, which was incurred by the accused persons. Further, when PW13 Jayamma, mother of the deceased has deposed that the accused persons had spent enormous money for the marriage expenses, this would clearly go to show that there was no demand for dowry by the accused persons and the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. In such circumstances, if the Sessions Court has acquitted the accused, this Court cannot reverse the findings of the Sessions Court. Viewed from any angle we are of the view that appreciation of the evidence cannot be held to be perverse or erroneous. 7. In the result, the appeal is dismissed.