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2015 DIGILAW 834 (KAR)

State of Karnataka v. K. Nagaraja

2015-07-30

MOHAN M.SHANTANAGOUDAR, R.B.BUDHIAL

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JUDGMENT : Mohan M. Shantanagoudar, J. This appeal is filed by the State against the judgment and order of acquittal dated 13-11-2009 passed by the Presiding Officer, Fast Track Court-V, Bengaluru City, in S.C. No. 110 of 2006. The accused were tried and acquitted of the offences punishable under Sections 498-A, 304-B, 302 and 506 read with Section 34 of Indian Penal Code, 1860 and Sections 3 and 4 of Dowry Prohibition Act, 1961. 2. Case of the prosecution in brief is that deceased Chandrakala married accused 1-Nagaraja on 6-11-2003 as per the customs prevailing in their community in the presence of the elders, relatives and friends of both the families. Accused Nos. 2 and 3 are the mother and father of the accused No. 1, respectively. Among them accused No. 3-Krishnamurthy has expired. Accused Nos. 4 and 5 are brothers of accused No. 1. The allegation of the prosecution is that prior to the marriage, the marriage talks took place in the presence of P.Ws. 6, 8, 9 and 10 regarding the marriage, wherein, the accused demanded dowry in terms of money of Rs. 2,00,000/- and 25 sovern gold and cash of Rs. 7,000/- apart from a TVS Victor Moped; parents of the deceased satisfied the demand of dowry of the accused and performed the marriage of the deceased with accused 1. After the marriage also the accused started demanding additional amount of dowry and started torturing the victim/Chandrakala both physically and mentally. On 31-8-2005 at about 6.00 p.m. all the accused with an intention to commit the murder of the deceased, started telling her that she should do coolie work and she will not be allowed to go to her parental place, so accused 2 caught hold her, accused 3 poured kerosene and accused 1 lit fire; as a result of which Chandrakala sustained burn injuries; immediately, after the incident the accused and others took her to RMV Hospital and thereafter to Victoria Hospital for treatment; the Police came to the hospital and recorded the statement of victim but at that point of time the accused has threatened the victim with dire consequences, if she discloses true facts; consequently, the deceased gave false information to Police as per Ex. P. 9 at the first instance. The statement of the victim was recorded as per Ex. P. 9 at the first instance. The statement of the victim was recorded as per Ex. P. 9 at 1.35 a.m. on 1-9-2005 by the Police Constable (P.W. 17) in which the deceased has stated that she has suffered accidental burns. The said statement was registered in C. Mis. No. 349 of 2005 in Sanjaynagar Police Station. The statement has been recorded in the presence of the doctor, wherein he has certified that the victim was having consciousness and was in a fit condition to make the statement. Subsequently, one more statement of the victim came to be recorded as per Ex. P. 10 at 5.00 p.m. on 1-9-2005 in the hospital by another Police Constable (P.W. 24) in the presence of Doctor (P.W. 20). 3. Ex. P. 10 was registered once again before the Sanjaynagar Police Station in Crime No. 343 of 2005 at 5.00 p.m. based on which the investigation commenced. P.W. 19 the Inspector of Police, has completed the investigation and laid the charge-sheet. 4. In order to prove its case, prosecution in all, has examined 24 witnesses and got marked 24 exhibits and 11 material objects; on behalf of the defence 3 witnesses were examined and 10 documents were got marked. However, 3rd witness i.e., D.W. 3 has not tendered himself for cross-examination and therefore, the Trial Court has rightly not relied upon the evidence of D.W. 3. As aforementioned, the Trial Court acquitted the accused by giving benefit of doubt in favour of the accused. 5. Sri Vijayakumar Majage, learned Additional State Public Prosecutor, taking us through the entire materials on record submits that the Court below is not justified in disbelieving the case of the prosecution based on Exs. P. 4 and P. 10; Ex. P. 4 reveals that it is the case of suicidal death; whereas, Ex. P. 10 reveals that it is a case of murder; according to him the earlier statements of the victim recorded either by the Police or by the Doctors in the Hospital cannot be relied upon in view of the fact that at the time of making such statements the in-laws of the deceased were present in the hospital and therefore, the deceased might not have been able to state the true facts because of the threats of the in-laws. He further submits that the other materials on record clearly reveals that accused demanded and accepted dowry; since the additional dowry demanded by the accused is not satisfied by the parents of the deceased, she was done to death. He further submits that the reasons assigned and the conclusion arrived at by the Trial Court are not proper and correct. Per contra, Sri Rahul Cariyappa, learned Amicus Curiae for respondents argued in support of the judgment of the Court below. 6. P.W. 4 is a relative of the deceased and he is an elderly person. P.W. 7 is the mother of the deceased. P.Ws. 8, 9 and 10 are the witnesses to the marriage talks and the marriage. Though in the examination-in-chief all these witnesses have deposed about the marriage talks, demand of dowry and payment of dowry, looking to the answers given by them in the cross-examination, it is clear that the parents of the deceased have not given Rs. 2,00,000/- to the bridegroom on their demand. It is admitted by these witnesses that the father of the deceased, namely, Muniswamappa is doing coolie work since 20 years in his village and at the time of engagement parents of the deceased had given only one gold ring to the bridegroom and while going towards choultry they had given ornaments to the bride. 7. P.W.-7, mother of the deceased, also admits that her husband was doing coolie work and they have got one cow. She has not produced any documents to show that she had any amount in the bank or that she had purchased the gold jewelries. She has made clear that her husband was not in a position to make the marriage arrangements and therefore, they had paid Rs. 2,00,000/- to the accused for marriage expenses. It is further made clear that ear stud, jumki, mati, gold ring are given to the deceased voluntarily. 8. The evidence of P.W. 8 is almost on par with the evidence of P.W. 7. He admits in the cross-examination that he has not given the statement before the Police as per Exs. D. 1, D. 2 and D. 3. These exhibits would reveal that he has not stated before the Police with regard to the demand of dowry by accused to the extent of Rs. He admits in the cross-examination that he has not given the statement before the Police as per Exs. D. 1, D. 2 and D. 3. These exhibits would reveal that he has not stated before the Police with regard to the demand of dowry by accused to the extent of Rs. 2,00,000/- and to provide TVS Victor motorcycle to the accused and also with regard to the disputes inter se between the husband and wife. 9. P.W. 9, another witness, who was present in the marriage talks, in his examination-in-chief has deposed that, at the time of engagement, the rings were exchanged between the deceased and accused 1 and she came to know about the demand of dowry by accused from P.W. 7. Thus, it clear that she is a hearsay witness. She also admits that P.W. 7-Jayamma and her husband were doing coolie work and not having any income from any property. 10. Considering the entire evidence on record, it is crystal clear that P.W. 7 or her husband had any means to pay Rs. 2,00,000/- since he was doing coolie work. P.W. 7 has expressed her inability to perform the marriage, accordingly, the elders have decided and requested that accused should perform the marriage in their village and P.W. 7 and her husband agreed to pay marriage expenses. Thus, the accused performed the marriage for which parents of the deceased borne the marriage expenses. Therefore, it is crystal clear that marriage expenses paid by the parents of the deceased cannot be termed as "dowry". Apart from it, the evidence clearly reveals that there was exchange of gold ornaments at the time of engagement ceremony and such exchange took place voluntarily as per the custom. 11. Though it is the case of the prosecution that M.O. 1-motorcycle was provided to accused 1 by the parents of the deceased, prosecution has not proved the said aspect of the matter, no documents has been produced to show that the motorcycle was purchased by the parents of the deceased by paying consideration. If really, the parents of the deceased had purchased the motorcycle, certainly the prosecution would have produced the documents to prove the same. The Registration Certificate, purchase certificate or bill book, etc. are not produced before the Court to show that the parents of the deceased had purchased the motorcycle. If really, the parents of the deceased had purchased the motorcycle, certainly the prosecution would have produced the documents to prove the same. The Registration Certificate, purchase certificate or bill book, etc. are not produced before the Court to show that the parents of the deceased had purchased the motorcycle. However, M.O. 1-motorcycle bears the Registration No. KA 03 EL 5973. However, P.Ws. 4, 5, 8 and 10 in their statement during investigation have deposed as per Exs. D. 1 to D. 8 that the motorcycle given in the form of dowry was bearing Registration No. KA 03 EM 8557; Ex. P. 21 also makes the same very clear. Thus, it is clear that the prosecution has not proved the real facts before the Court. 12. M.Os. 2 to 8 which are seized during the course of investigation include Mangalasutra, ear studs, rings, leg chain, necklace etc. The prosecution witnesses have admitted that these gold rings were given by the parents of the deceased to the deceased at the time of marriage voluntarily and she had worn the said ornaments while going to choultry at the time of marriage. Since offering of the gold ornaments to the bride and bridegroom in the marriage is customary, the Trial Court is justified in concluding that there was neither demand nor payment of dowry in any form. 13. Though the prosecution has cited C.Ws. 2 and 6 are the witnesses for harassment, both these witnesses have not been examined by the prosecution. They would have been the best witnesses to explain the circumstances as well as the cause for the incident. It is also relevant to note that C.W. 6 was not examined as prosecution witness, but was examined as defence witness (as D.W. 3). He has deposed in his examination-in-chief supporting the case of the defence. He does not tender himself for cross-examination. Therefore, his evidence is rightly eschewed from consideration. 14. D.Ws. 1 and 2, witnesses of the accused, would make it clear that accused 1 and deceased were living happily in their matrimonial house and there was no quarrel whatsoever. According to them, the fire caught deceased accidentally and immediately, she was shifted to hospital for treatment. D.Ws. 1 and 2 were the neighbours of the deceased and accused 1. Through the evidence of D.Ws. 1 and 2, the defence has explained as to how the incident has taken place. According to them, the fire caught deceased accidentally and immediately, she was shifted to hospital for treatment. D.Ws. 1 and 2 were the neighbours of the deceased and accused 1. Through the evidence of D.Ws. 1 and 2, the defence has explained as to how the incident has taken place. Both of them have deposed that at about 5.00 or 5.30 p.m., they heard crying sound from the house of the accused and immediately, rushed there and extinguished fire; on verification it was found that the deceased caught fire while alighting the boiler. As aforementioned D.W. 3-the father of the deceased also did not support the case of the prosecution while deposing in favour of the prosecution. Be that as it may, from the evidence of D.Ws. 1 and 2 it is clear that there was no enmity between accused and deceased just prior to the incident. 15. The question still remains to be decided as to whether the dying declaration as per Ex. P. 10 is to be believed or not. The case of the prosecution is that accused 2 held the deceased tightly, accused 3 poured kerosene on the deceased and accused No. 1 lit fire; no role is practically attributed to accused 4 and 5. However, through Ex. P. 10, case is sought to be made out against accused 4 and 5 also with an allegation that they also used to harass the victim. 16. The Trial Court has assigned valid reasons for coming to the conclusion. It is relevant to note that Ex. P. 4 is the case sheet maintained by Victoria Hospital. The first entry? made in the case sheet is at about 8.20 p.m. on 31-8-2005. Incident has taken place at about 5.30 to 6.00 p.m. on 31-8-2005. Immediately, thereafter, the victim was taken to Ramaiah Hospital and thereafter to Victoria Hospital. Thus, it can be said that the deceased was admitted to Victoria Hospital at about 8.00 p.m. As aforementioned, the first entry in the case sheet was at 8.20 p.m. on 31-8-2005 i.e., immediately after the incident and admission of the deceased to the hospital. The case sheet clearly reveals that the doctor has made a detailed endorsement to the effect that the victim was alert, conscious, co-operative and well-oriented to time and place. The patient was mentally and physically fit to give statement; and the thumb impression was taken. The case sheet clearly reveals that the doctor has made a detailed endorsement to the effect that the victim was alert, conscious, co-operative and well-oriented to time and place. The patient was mentally and physically fit to give statement; and the thumb impression was taken. Thereafter, the doctor has written that the patient given the history of accidental burns at around 6.00 p.m. on 31-8-2005 due to kerosene stove burst and this incident happened in her own residence. It is further mentioned that such incident has happened while lighting kerosene fire stove. She caught into fire, immediately her mother-in-law and neighbours took her to the local hospital and thereafter to M.S. Ramaiah Hospital and subsequently to Victoria Hospital. It is also mentioned in the said endorsement made in the case sheet at Ex. P. 4 that the aforementioned statement made is true to the best knowledge of the victim and explained to her in her own language. Thus, the earliest version which is recorded by? the Doctor in detail in the case sheet maintained by the hospital as per Ex. P. 4 clearly discloses that it is a case of accidental burns. 17. The victim was treated on 31-8-2005 from 8.20 p.m. onwards. One more statement of the victim came to be recorded as per Ex. P. 9 at 1.35 a.m. on 1-9-2005 i.e., next day of the incident by the Police Constable (P.W. 17) in the presence of the Doctor. Prior to that, the hospital authorities have sent an intimation to the Police and consequently, the Police Constable (P.W. 17) of Sanjaynagar Police Station went to the Hospital and recorded the statement of victim as per Ex. P. 9. Ex. P. 9 once again discloses that it is a case of accidental death; in the said statement also the victim has clarified that accidentally she caught fire while she was boiling water in the evening of 31-8-2005. Ex. P. 9 was registered in C. Mis. No. 349 of 2005 in Sanjaynagar Police Station. 18. From the aforementioned, it is clear that the earlier two versions made by the deceased in the presence of the Doctors disclose that it is the case of accidental burns. 19. However, the improvements are made in the prosecution case subsequently. The victim's statement as per Ex. P. 4(a) came to be recorded once again in the case sheet by the doctor (P.W. 5). 19. However, the improvements are made in the prosecution case subsequently. The victim's statement as per Ex. P. 4(a) came to be recorded once again in the case sheet by the doctor (P.W. 5). Based on Ex. P. 4(a) the doctor (P.W. 5) has sent intimation to Police Station mentioning that victim wants to change her statement from accidental burns to suicidal bums. The statement as per Ex. P. 4(a) is recorded at 2.30 a.m. on 1-9-2005 i.e., within one hour after recording of Ex. P. 9. Ex. P. 4(a) discloses that patient was conscious, she was physically and mentally fit to make statement. The said statement further discloses that her father-in-law, mother-in-law and her husband used to harass her everyday and being fed-up, she committed suicide by setting herself ablaze on 31-8-2005. Thus, the accidental burns were sought to be modified as suicidal burns. 20. Curiously, one more statement of the victim was recorded as per Ex. P. 10 at 5.00 p.m. on 1-9-2005 in the hospital by the Police Constable (P.W. 24) in the presence of Doctor (P.W. 20), based on which crime came to be registered. Thus, it is clear that till recording of Ex. P. 10, the Police did not try to register the crime. The said statement Ex. P. 10 though was recorded at 5.00 p.m. on 1-9-2005 reached the Magistrate on 2-9-2005 at 11.00 a.m. Ex. P. 10 runs about 2½ pages. Admittedly, deceased has sustained 55-60% bum injuries of 1st and 2nd degree. The case sheet of the deceased was maintained by the Hospital subsequent to 2.30 p.m. till 4-9-2005 on which day the deceased died. Ex. P. 10 states that accused 2 held the deceased, accused 3 poured kerosene and accused 1 lit the deceased on fire. It also alleges that accused 4 and 5 were harassing the deceased. 21. From the aforementioned facts, it becomes amply clear that the prosecution has come up with new theory of murder against accused after one day of incident in question. Till recording of Ex. P. 10, three declarations were already made by the deceased, out of them two disclose that the death was due to accidental fire and one of the dying declaration shows that it is the case of suicidal death. 22. As aforementioned, the case of the prosecution as found in Ex. Till recording of Ex. P. 10, three declarations were already made by the deceased, out of them two disclose that the death was due to accidental fire and one of the dying declaration shows that it is the case of suicidal death. 22. As aforementioned, the case of the prosecution as found in Ex. P. 10 is that accused 1, 2 and 3 collectively were responsible for the alleged homicidal death of the deceased and that kerosene contained in can - M.O. 9 was made use of for burning the deceased. M.O. 9 is allegedly seized from the spot. The said can was sent for Forensic Science Laboratory examination. But the Forensic Science Laboratory report was not submitted before the Trial Court. In the absence of Forensic Science Laboratory report, it cannot be said that the kerosene contained in M.O. 9 - can was made use of by the accused for commission of the crime. This lends support to the case of the defence that it is a case of accidental burns and it is not a case of homicidal death. 23. From the aforementioned facts and circumstances, it is clear that the prosecution has tried to improve its case from time to time. We do not find any reason to disbelieve the versions as found in Exs. P. 4 and P. 9, which are recorded at earlier point of time. We also do not find any special reason to accept the versions as found either in Ex. P. 4(a) or Ex. P. 10, ignoring earlier versions as per Exs. P. 4 and P. 9. The dying declarations made by the deceased are conflicting with each other. 24. The deceased has come up with three propositions viz., accidental burns, suicidal burns and homicidal burns. In that view of the matter, Trial Court in our considered opinion is justified in concluding that the benefit of doubt should go in favour of the accused. Even on re-appreciation of material on record, we do not find any ground to disagree with the reasons and the conclusion arrived at by the Trial Court. The view taken by the Trial Court is one of the possible views under the facts and circumstances of the case. Hence, no interference is called for. Accordingly, appeal stands dismissed. We place on record the valuable assistance rendered by Sri Rahul Cariyappa, learned Amicus Curiae. The view taken by the Trial Court is one of the possible views under the facts and circumstances of the case. Hence, no interference is called for. Accordingly, appeal stands dismissed. We place on record the valuable assistance rendered by Sri Rahul Cariyappa, learned Amicus Curiae. Hence, Registry is directed to pay a sum of Rs. 7,000/- (Rupees Seven Thousand only) as honorarium to the learned Amicus Curiae.