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2013 DIGILAW 556 (KAR)

STATE OF KARNATAKA v. NATARAJU

2013-04-24

MOHAN M.SHANTANAGOUDAR, V.SURI APPA RAO

body2013
JUDGMENT MOHAN M. SHANTANAGOUDAR, J.-This appeal is filed by the State against the judgment and order of acquittal dated 23.1.2008, passed by the Fast Track Court-III, Tumkur, in SC. No. 118/2006. The accused was tried for the offences punishable under Section 498A and 302 of IPC. 2. Case of the prosecution in brief is that the accused is the husband of the deceased; their marriage was performed on 22.5.2002; they were living as tenants during the relevant time in the house of PW.4; the accused instead of doing any work, was complaining the deceased unnecessarily; he was addicted to bad habits; he used to torture his wife by pressurizing her to provide money to him for consumption of liquor; on 25.2.2006, the accused in usual manner started harassing the deceased to give money for consumption of liquor; since the money was not provided by the deceased, the accused with an intention to commit murder of his wife, poured kerosene on her and set her ablaze in the matrimonial house; immediately thereafter, the victim was admitted to General Hospital, Tumkur; however the victim could not recover from burn injuries and consequently, she expired due to burn injuries on 24.4.2006. 3. In order to prove its case, the prosecution in all examined 20 witnesses and got marked 16 Exhibits and 4 Material Objects. On behalf of the defence no witness was examined. The Trial Court on evaluation of the material on record and after hearing, acquitted the accused by giving benefit of doubt in favour of the accused. 4. PW.1 is the owner of the house of the accused and the deceased. He was supposed to be eye witness, but he has turned hostile; PW.2 is the driver of autorikshaw, who shifted the injured to the hospital along with PW.1. But he has turned hostile; PW.3 is the father of the deceased; PW.4 is the mother of the deceased. PW.3 has deposed about the ill-treatment by the accused against the deceased. Same is the evidence of PW.4. In addition to the same, PW.4 has deposed that she was present at the time of recording of dying declaration of the deceased-Ex.P6; PW.5 is the brother of the deceased. PW.3 has deposed about the ill-treatment by the accused against the deceased. Same is the evidence of PW.4. In addition to the same, PW.4 has deposed that she was present at the time of recording of dying declaration of the deceased-Ex.P6; PW.5 is the brother of the deceased. His evidence is also relating to ill-treatment by the accused against the accused; PW.6 is the neighbour of the matrimonial house of accused and deceased and he turned hostile; PWs.7 and 8 are the mahazar witnesses for inquestpanchanama-Ex.P7; PW.8 is the Engineer who drew sketch as per Ex.P8; PW.10 is the Police Constable who carried certain articles to Forensic Science Laboratory for examination; PW.11 is the Taluka Executive Magistrate who held inquest proceedings and inquest report is at Ex.P7; PW.12 is the doctor who conducted postmortem examination over the dead body of the deceased. The postmortem report is at Ex.P9; PW.13 is the Secretary of the Gram Panchayat who issued extracts of the house, wherein the deceased and accused were living as per Ex.P10; PWs.14 and 15 are the neighbours, who have turned hostile; PW.16 is the P.S.I, who registered Crime No. 30/2006 on 3.3.2006 on the basis of Ex.P6; PW.17 is the doctor who treated the deceased on 25.2.2006. The Accident Register maintained by the doctor in the hospital is at Ex.P14; PW.18 is the P.S.I. who recorded the dying declaration-Ex.P6 and investigated the crime in part; PW.19 is the Investigating Officer who completed the investigation and laid charge sheet; PW.20 is the doctor who is stated to be present at the time of recording Ex.P6 in the hospital on 3.3.2006 by PW.18. 5. It is relevant to note that the incident has occurred during the night of 25.2.2006, i.e., at about 9.00 p.m. After the incident, the victim was shifted to General Hospital, Tumkur for treatment. PW.17-Dr.Prahlad has initially treated the victim on 25.2.2006 at the hospital. The Accident Register maintained in the hospital during the relevant time is at Ex.P14. He has admitted in the cross-examination that law requires that he should intimate to the police about the incident in question as the same is medico-legal case. According to him, he has accordingly intimated to the police, but however, he does not know as to whether the police had come to the hospital for investigation or not. He has admitted in the cross-examination that law requires that he should intimate to the police about the incident in question as the same is medico-legal case. According to him, he has accordingly intimated to the police, but however, he does not know as to whether the police had come to the hospital for investigation or not. Thus, according to the evidence of PW.17, it is clear that he has intimated to the police about the incident, immediately after the admission of the patient. But there is nothing on record to show what action the police have taken immediately thereafter. The vacuum prevails in the matter till 3.3.2006, the day on which the alleged statement of the victim is recorded in the hospital by PW.18-PSI as per Ex.P6. As aforementioned, Ex.P6 is stated to be the statement made by the victim in the hospital before PW.18 in the presence of doctor-PW.20. Ex.P6 implicates specifically the accused. Ex.P6 reveals that accused poured kerosene on the victim and set her ablaze. Torturing the victim by demanding money for consumption of liquor, etc. is also mentioned. Ex.P6 runs to more than two pages. The same is detailed one. It explains each and every aspect of differences of opinion between the accused and the deceased. It also explains as to when they married, where they lived, etc. In fact, Ex.P6 is the story of the prosecution in full. The case of the prosecution mainly rests on the complaint-dying declaration at Ex.P6. If the dying declaration is held to be proved as per law, then the accused needs to be convicted. But in the matter on hand, we find that the Trial Court is justified in disbelieving the dying declaration. 6. As aforementioned, the incident has occurred on 25.2.2006. Immediately thereafter the victim was admitted to hospital. Ex.P14 is the Accident Register dated 25.2.2006. Ex.P14 discloses the history of the incident in question as accidental burns at about 6.30 to 7.00 p.m. at Adilakshminagar due to stove burst while pumping a pump stove. Even according to the case of prosecution, the victim was admitted to hospital by PWs.1 and 2, who are independent witnesses. PW.1 is the owner of the house, wherein the accused and deceased were staying. Victim was shifted to hospital in autorikshaw driven by PW.2. Even according to the case of prosecution, the victim was admitted to hospital by PWs.1 and 2, who are independent witnesses. PW.1 is the owner of the house, wherein the accused and deceased were staying. Victim was shifted to hospital in autorikshaw driven by PW.2. Thus, even according to the prosecution, the accused did not have any role in giving the history to the doctor in the hospital at the first stage itself. Therefore, the history must have been given either by PW.1 or PW.2. However, PW.17-doctor who admitted the victim to the hospital and who recorded the contents of the Accident Register as per Ex.P14 has deposed that he does not know as to who admitted the victim to the hospital. However, in his evidence, PW.17 has deposed that the victim was brought by her husband-accused to the hospital. In the cross-examination, he fairly admits that he has not written anything in the medical records as to who had brought the victim to the hospital. Though he has stated that the victim's husband brought her to the hospital, there is nothing on record in Ex.P14 or any medical records to show that accused brought the deceased to the hospital. 7. Though the victim was admitted to the hospital on 25.2.2006, no investigation has been taken place at the time of admission. The investigation has begun only on 3.3.2006, i.e., the date on which the victim had allegedly given her statement as per Ex.P6 in the presence of Doctor-PW.20, recorded by PW.18. In the examination-in-chief, PW.18 has deposed that he has recorded the statement of the victim in the presence of victim's mother and the Medical Officer. In the cross-examination, he has deposed that on 3.3.2006 complaint is received by him and immediately thereafter, he went to the hospital and recorded the statement of the victim. Till such time, he did not get any information from the hospital. Per contra, it is deposed by Doctor-PW.17, who admitted the victim to the hospital that he had informed the police about the medico-legal case on 25.5.2006 itself. Thus, it is clear that the prosecution has suppressed the material in between 25.2.2006 and 3.3.2006. 8. Till such time, he did not get any information from the hospital. Per contra, it is deposed by Doctor-PW.17, who admitted the victim to the hospital that he had informed the police about the medico-legal case on 25.5.2006 itself. Thus, it is clear that the prosecution has suppressed the material in between 25.2.2006 and 3.3.2006. 8. Though it is stated that Ex.P6 is recorded in the presence of Doctor-PW.20, the said doctor during course of his deposition, has fairly admitted that by the time he went to the Ward, the statement was already recorded and he was not present at the time of recording Ex.P6. He has also deposed that he has not certified that the victim was in fit condition to give the statement. Thus, it is clear that though Ex.P6 reveals that the doctor has stated that the patient was able to give statement, in his evidence, the doctor has stated that he has not certified so before recording the statement. As aforementioned, PW.20 has clearly admitted that he was not present at the time of recording dying declaration-Ex.P6. The evidence of PW.20 is fully supported the evidence of the mother of the victim, who has stated that at the time of recording of dying declaration, she and only the police were present and none except them was present. This clearly goes to show that the doctor was not present at the time of recording the dying declaration-Ex. P6 and he has not certified as to whether the patient was in fit condition to give statement. 9. Though it is the case of the prosecution that the victim was conscious and was in a position to talk and to give statement all through from the date of admission in the hospital till her death, the Investigating Officer did not venture to record the dying declaration of the victim as per law in the presence of doctor as well as in the presence of Magistrate. Absolutely no reasons are forthcoming as to why such a statement of the victim was not recorded though she was alive and was in a position to give statement about two months after the incident. Non-explanation by the prosecution in such matters leads this Court to draw adverse inference against the case of the prosecution. Absolutely no reasons are forthcoming as to why such a statement of the victim was not recorded though she was alive and was in a position to give statement about two months after the incident. Non-explanation by the prosecution in such matters leads this Court to draw adverse inference against the case of the prosecution. Even after recording Ex.P6, the police would have recorded the statement of the victim subsequently in the presence of the doctor as well as the Magistrate. It is curious to note that none of the medical records right from 25.2.2006 till the date of the death of the deceased are produced. The medical records are completely suppressed. They are not brought before the Court. There is absolutely no reason as to why the prosecution kept the Court in darkness by not producing the documents. If really the Investigating Officer has acted fairly, if really the prosecution has brought out the true and correctness and if really the doctors have done their best to save the victim, the medical records would not have been suppressed. The suppression of all the medical records would clearly indicate that the prosecution has not come out with the real story before the Court. In view of the above, the Trial Court is justified in acquitting the accused. 10. The other witnesses who have supported the case of the prosecution are PWs.3, 4 and 5 who are the parents and brother of the deceased respectively. Their evidence is of no help to the case of the prosecution. They have come to the spot after hearing the incident in question. PW.3 has admitted in his cross-examination that the accused and the deceased were living amicably; the victim was also going along with the accused for the factory work; the victim had raised lot of loans for surviving; PW.3 went to hospital at about 9.30 p.m. on the date of incident and that he took the victim to the hospital. He never talked with the victim either on the way to the hospital or while in the hospital. He fairly admits that the history is given by Mr.Parameshwaraiah-PW.1 before the doctor. PW.3 did not ask the victim as to how the incident had happened till her death. He never talked with the victim either on the way to the hospital or while in the hospital. He fairly admits that the history is given by Mr.Parameshwaraiah-PW.1 before the doctor. PW.3 did not ask the victim as to how the incident had happened till her death. All the aforementioned answers of PW.3 clearly reveal that the accused is not responsible for the crime and that the victim was not in a position to talk. PW.3 further admits that the victim was suffering from ailment of 'epilepsy' and that the accused had taken her to the hospital for getting the treatment with regard to her ailment. The doctor had advised the victim that she should take treatment till her death. He has reiterated in the cross-examination that the accused was present at the time of taking the deceased to the hospital. These admissions of PW.3clearly reveal that the accused was in good terms with the deceased and the deceased was suffering from 'epilepsy'. 11. Evidence of PW.4 is also in consonance with the evidence of PW.3. In the cross-examination, PW.4 has also admitted that the accused and victim were living amicably for some time. She has also deposed that they were not living amicably. She has not made any complaints earlier to the complaint in question about ill-treatment, etc., by the accused against the deceased. She does not know as to what was written by the police in the hospital and that she alone was present while recording the statement of the victim in the hospital. She also admits that the victim was suffering from 'epilepsy' even prior to her marriage and that she was taking treatment in Manasa Nursing Home at Shimoga. PW.4 has further admitted that the victim was in a position to talk while in the hospital. From the aforementioned facts, it is clear that the history is not given by the accused at the time of admission of the deceased to the hospital. We find that the evidence of PW.5, the brother of the deceased is also of no help to the case of the prosecution. He also admits that the victim was suffering from 'epilepsy' and that the accused had taken the victim to the hospital. Except the evidence that the accused was asking the money from his wife, no incriminating material is found from the evidence of PWs.3, 4 and 5 against the accused. He also admits that the victim was suffering from 'epilepsy' and that the accused had taken the victim to the hospital. Except the evidence that the accused was asking the money from his wife, no incriminating material is found from the evidence of PWs.3, 4 and 5 against the accused. Such material is not sufficient to convict the accused for the offence punishable under Section 498A of IPC also. In view of the aforementioned facts and circumstances of the case, we find that the Trial Court is justified in acquitting the accused. Hence, no interference is called for. Accordingly, appeals fails and the same stands dismissed. We place on record the valuable assistance rendered by Sri P. Prasanna Kumar, amicus curiae while deciding the matter. Office is directed to pay Rs. 10,000/- (Rupees ten thousand only) as honorarium to the learned amicus curiae.