IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL No.1302/2015
BETWEEN:
1. HANUMANTHA,
S/O LATE NAGARAJAIAH,
AGED ABOUT 31 YEARS,
2. KULLAMMA
W/O LATE NAGARAJAIAH,
AGED ABOUT 54 YEARS,
3. KAMALI
W/O LATE RAMU,
AGED ABOUT 41 YEARS,
4. SRINIVAS
S/O LATE NAGARAJAIAH,
AGED ABOUT 25 YEARS,
ALL ARE RESIDENTS OF CHIKKENAHALLI,
KASABA HOBLI, KANAKAPURA TALUK,
RAMANAGAR DISTRICT - 562 117.
...APPELLANTS
(BY SRI S. G. RAJENDRA REDDY, ADVOCATE)
2
AND:
THE STATE OF KARNATAKA
BY KANAKAPURA RURAL P.S.,
KANAKAPURA TOWN,
RAMANAGAR DISTRICT - 562 117.
....RESPONDENT
(BY SRI S. RACHAIAH, HIGH COURT GOVERNMENT PLEADER)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED
23.09.2015 PASSED BY THE SECOND ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA, SITTING AT KANAKAPURA AND
TO SET THEM AT LIBERTY, IN THE ENDS OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The accused Nos.1, 3, 4 and 5 have filed the present Criminal Appeal against the impugned judgment of conviction and order of sentence dated 23.09.2015 made in S.C.No.137/2009 on the file of the II Additional District and Sessions Judge, Ramanagara, sitting at Kanakapura, sentencing the said accused persons to undergo simple imprisonment for two months for the offence punishable under Section 143 r/w 149 of the Indian Penal Code; to undergo 3 simple imprisonment for one year with fine of Rs.1,000/- each, in default, to undergo simple imprisonment for one month for the offence punishable under Section 498(A) r/w 149 of the Indian Penal Code; to undergo rigorous imprisonment for life with fine of Rs.25,000/- each, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 302 r/w 149 of the Indian Penal Code.
2. The Kanakapura Rural Police through Circle Inspector of Police, Kanakapura Circle, filed the Charge sheet against the accused persons for the offences punishable under Sections 143, 498A, 302 r/w 149 of the Indian Penal Code. It is the case of the prosecution that the accused No.1 being the husband of the deceased Shylaja, accused No.2 being the father-in-law (now dead) and accused No.3 being the mother-in-law, accused No.4 being the sister-in-law and accused No.5 being the brother-in-law of the deceased, by forming an unlawful assembly with common object to commit offences, subjected the deceased Shylaja to cruelty under the guise that she has not given birth to a male child, harassed her mentally and physically and in furtherance of the said common 4 object, on 22.04.2009 at 6.00 am, at Chikkenahalli, in the house of the accused, when said Shylaja was sleeping, poured kerosene on her body and accused No.3 lit the fire, as a result of which, Shylaja sustained burn injuries. She was shifted to Government Hospital, Kanakapura and thereafter, while undergoing medical treatment at Victoria Hospital, she succumbed to the injuries at about 6.30 am on 26.04.2009. Accordingly, the jurisdictional police registered a case for the offences made out in the Charge Sheet on the basis of the statement of the victim and filed the final report. The learned Additional Civil Judge and JMFC, committed the case to the Sessions Court. The learned Sessions Judge framed the charge on 29.10.2010 against the accused persons for the offences punishable under Sections 143, 498A, 302 r/w 149 of the Indian Penal Code, read over and explained to the accused, who pleaded not guilty and claimed to be tried.
3. When the matter was posted on 17.10.2011 before the Trial Court, the police submitted the report about the death of accused No.2. Accordingly, the matter came to be abated against accused No.2 on 25.11.2011.
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4. In order to prove the guilt of the accused persons, the prosecution examined P.Ws.1 to 16, marked the documents Exs.P.1 to 10 and the material objects M.Os.1 to 3. On behalf of the defence, D.Ws.1 and 2 were examined. A portion of the statement of P.W.1 was marked as Ex.D.1, portion of statement of P.W.3 was marked as Ex.D.2 and case sheet portion of P.W.14 Hanumanthaiah was marked as Ex.D.3. After completion of the evidence of prosecution witnesses, the statement of the accused persons as contemplated under Section 313 of the Code of Criminal Procedure was recorded. The accused persons denied the incriminating evidence adduced against them by the prosecution.
5. The learned Sessions Judge formulated three points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that, the prosecution proved beyond reasonable doubt that on 22.04.2009 at 6.00 am, at Chikkenahalli village, in the house of the first accused, accused Nos.1, 3 to 5, with common object to commit the offence, formed unlawful assembly and committed the offence punishable 6 under Section 143 r/w 149 of the Indian Penal Code; the prosecution proved beyond reasonable doubt that on the said date, time and place, in furtherance of the same, the accused persons, with common object subjected the deceased Shylaja to cruelty under the guise that she has not given birth to male child, harassed her mentally and physically and committed the offence punishable under Section 498A r/w 149 of the Indian Penal Code and further proved that on the said date, time and place, in furtherance of the same with common object, accused Nos.1, 4 and 5 held the hands and legs of the deceased, poured kerosene on her body and accused No.3 lit the fire, as a result of which, she sustained burn injuries and while undergoing medical treatment, succumbed to the injuries on 26.04.2009 at about 6.30 am which amounts to murder and thereby committed an offence punishable under Section 302 r/w 149 of the Indian Penal Code. Accordingly, the learned Sessions Judge proceeded to convict the accused persons for the aforesaid offences. Hence the present Criminal Appeal is filed by the accused Nos.1, 3, 4 and 5.
6. We have heard the learned counsel for the parties. 7
7. Sri S.G.Rajendra Reddy, learned counsel for the appellants/ accused, contended that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is erroneous and contrary to the material on record and cannot be sustained. He contended that the very existence of Ex.P.5- statement of deceased Shylaja is doubtful and it is a fabricated document created by the prosecution only to implicate the accused persons. Learned counsel contended that Ex.P.5 is a concocted document as:-
(i) there is no certificate issued by the Doctor to the effect that the victim was in a fit state of mind to make the statement,
(ii) scribe of Ex.P.5 has not been examined,
(iii) the scribe has not signed the said statement;
(iv) P.W.9- police constable who was present at the time of making the statement has also not signed the said statement;
(v) the date mentioned on Ex.P.5 by the Doctor is altered/tampered/over written;8
(vi) in the certificate issued by the Doctor, the date and time is not mentioned,
(vii) Ex.P.5 is in the form of a statement and is not in the form of dying declaration.
8. Learned counsel for the appellants further contended that the prosecution has not produced any material document to prove that the victim was admitted either to Kanakapura Government Hospital or Victoria Hospital and had taken the treatment. Both hospitals have not sent the MLC and the prosecution has not produced the admission card or the register and therefore, the evidence of P.W.15-Doctor is nothing but falsity and cannot be relied upon.
9. Learned counsel for the appellants further contended that it is not the Doctor who informed the police about the incident, but it is P.W.3 who informed the police. The same was stated by P.W.9 in the cross-examination and admittedly, the said material evidence is not mentioned in case diary by the concerned police. P.Ws.4 and 6 alleged eye witnesses turned hostile. P.W.7-neighbour of the deceased and accused also turned hostile. The prosecution has not produced any oral and documentary evidence to prove that all the 9 accused persons were residing together on the date of the incident. In fact, P.W.1-mother of the deceased has admitted in her cross- examination that the deceased and the accused were residing together in a separate house. Accused No.4 is also residing separately. The prosecution has not produced any material documents like ration card, voters' ID or any other document to prove that the accused persons and the deceased were residing together. The case of the prosecution clearly depicts that omnibus statement was made by the complainant. The alleged statement- Ex.P.5 made by the deceased that, 'the accused persons poured kerosene on her' does not mean that they were residing together. The prosecution has not proved beyond reasonable doubt regarding the involvement of the accused persons in commission of the alleged offences. Therefore, he sought to allow the Criminal Appeal.
10. In support of his contentions, learned counsel for the appellant relied upon the dictum of the Hon'ble Supreme Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014)2 SCC 1, to the effect that, as soon 10 as information is received, it is mandatory on the part of the police to register the case; unless the case is registered, police cannot proceed with further enquiry.
11. Per contra, Sri S.Rachaiah, learned High Court Government Pleader, while justifying the impugned judgment of conviction and order of sentence, contended that the statement made by the victim as per Ex.P.5 is nothing but FIR, the evidence of P.W.9- police constable depicts that statement of the victim-Ex.P.5 was recorded in his presence and Doctor-P.W.15, the Doctor issued the certificate that the victim was in a fit state of mind while making the statement. Once the victim died in the hospital, the said statement of the victim becomes dying declaration. On the basis of the dying declaration, police registered the case, made investigation and filed the charge sheet against the accused persons. Even before registration of FIR, on the oral requisition made by the Doctor, the police can visit the hospital and record the statement of the victim. While recording the statement, the Doctor was present. The statement of the victim as per Ex.P.5 is signed by the victim also. Though there are some minor discrepancies in ExP5, it is not a 11 ground to ignore the voluntary statement made by the victim when she was in a fit state of mind. The accused No.1, husband of the deceased is father of two female children. When the victim was sleeping in the house, the accused persons formed unlawful assembly, poured kerosene and lit the fire. Therefore, Ex.P.5- statement of the deceased becomes the dying declaration and the learned Sessions Judge is justified in convicting the accused.
12. Learned HCGP further contended that P.W.9-police constable has deposed that, on the information given by P.W.3, he went to the hospital along with Nagamma, women police constable. He dictated the statement made by the victim to Nagamma who reduced it into writing. Though said Nagamma is not examined by the prosecution, the fact remains that P.W.15-Doctor signed the statement of the victim-Ex.P.5 and has stated that the patient was fit to make a valid statement. The victim has also signed Ex.P.5 which is sufficient to proceed with the case. Therefore, in view of the statement made by the victim and the categorical evidence of P.W.9 and P.W.15, Ex.P.5 dying declaration has to be relied upon 12 as rightly relied upon by the learned Sessions Judge. The same is in accordance with law.
13. Learned HCGP further contended that P.W.9-police constable and P.W.15-Doctor have stated that the victim was admitted to the hospital on 22.04.2009. P.W.15- working as Doctor in Kanakapura Government Hospital has deposed that the deceased was admitted to emergency ward for burn injuries. Nothing has been elicited by the defence in the cross-examination of P.Ws.9 and 15 that the victim was not at all admitted to the hospital. Therefore, mere non production of MLC or register cannot be a ground to come to the conclusion that the deceased was not at all admitted to the hospital. Admittedly, the victim died due to burn injuries in Victoria Hospital. The post mortem report dated 26.04.2009 issued by the Victoria Hospital as per Ex.P.8 is not in dispute. The contention of the learned counsel for the appellant that the deceased was not at all admitted either to Kanakapura Government Hospital or Victoria Hospital cannot be accepted. Therefore, he sought to dismiss the Criminal Appeal.
13
14. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is:
"Whether the appellants/accused persons have made out any ground to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge for the offences punishable under Sections 143, 498A, 302 r/w 149 of the Indian Penal Code?"
15. This Court being the Appellate Court, in order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the evidence of the witnesses and the documents relied upon by the prosecution.
(i) P.W.1-Jayalakshmi, mother of the deceased has deposed that she came to the spot after hearing about the news that her daughter sustained burn injuries and was shifted to the hospital. She alleged that cruelty was meted out to the deceased by the accused persons on the ground that the deceased did not give birth to a male child. She further deposed that all the accused persons poured kerosene on her daughter and accused No.3 lit the fire. Subsequently, she was shifted to the Government Hospital, Kanakapura and later to Victoria Hospital where she succumbed to the 14 injuries on 26.04.2009 and supported the case of the prosecution.
(ii) P.W.2-Shobha, elder sister and P.W.3-
Ramachandra, brother-in-law of the deceased deposed on par with P.W.1 and supported the case of the prosecution.
(iii) P.W.4-Mahadevaiah, villager, independent eye witness to the incident, who attested the spot mahazar-Ex.P.1, turned hostile.
(iv) P.W.5-Nagaraju, independent witness and also villager and another attestor to the spot mahazar- Ex.P.1 turned hostile.
(v) P.W.6-Kabbalaiah, alleged eye witness turned hostile.
(vi) P.W.7-Chikkathayamma, said to be the neighbour failed to support the case of the prosecution and turned hostile.
(vii) P.W.8-Rajashekhar, police constable, apprehended accused No.1 on 28.04.2009 at about 2.00 pm in Kanakapura Town and produced before the PSI and supported the prosecution case.
15
(viii) P.W.9-Ramalingu, Head constable and Station House Officer at the relevant point of time and date is said to have received the message about the admission of a person in the hospital with burn injuries. Immediately he went to the hospital along with one Nagamma, women police constable, dictated the statement of the victim to her, returned to the police station and registered the case, conducted the spot mahazar on the same day and supported the case of the prosecution.
(ix) P.W.10-Manju, witness to the inquest mahazar-Ex.P.7 supported the case of the prosecution. (x) P.W.11-Madegouda, PSI who received the
death memo of the deceased and invoked Section 302 of the Indian Penal Code against the accused, supported the case of the prosecution.
(xi) P.W.12-Dr.Venkataraghava, conducted the post mortem on the dead body and issued the report as per Ex.P.8 and opined that the death was due to Taxaemia as a result of burn injuries supported the prosecution case.
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(xii) P.W.13-Manjunath, CPI conducted part of the investigation and filed the charge sheet, supported the prosecution case.
(xiii) P.W.14-Hanumanthaiah, police constable who took the FIR and submitted it to the jurisdictional Magistrate supported the prosecution case.
(xiv) P.W.15-Dr.Wasim Imran, Surgeon working at General Hospital, Kanakapura, certified the fitness of the victim to make statement-Ex.P.5. He was also examined on behalf of the accused as D.W.1 to establish that accused No.1 was injured in the same incident and was treated in the same hospital as an inpatient.
(xv) P.W.16-Ravi Thirlapura, Taluka Executive Magistrate conducted the inquest proceedings over the dead body, issued inquest mahazar-Ex.P.7, supported the prosecution case.
(xvi) On behalf of the defence, P.W.15 was also examined as D.W.1 who examined the accused No.1 to establish that he was also injured in the incident and treated in the Government Hospital, Kanakapura. 17
(xvii) D.W.2-Madappa was examined on behalf of the defence to prove that the accused was not present at the spot at the time of the incident, supported the defence case.
16. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused persons for the offences made out in the Charge.
17. It is relevant to consider the statement of the victim-Ex.P.5, which has become dying declaration, after the death of the victim for burn injuries, wherein, the victim has specifically stated that five years prior to the incident, she was married to one Hanumantha- accused No.1. Out of the wedlock, two female children were born, the elder daughter Aishwarya is aged 04 years and the second daughter Sinchana is aged 01 year. Her husband Hanumantha, mother in law-Kullamma, father in law-Nagarajaiah, brother in law- Srinivas and sister in law-Kamali, used to scold and assault her over small issues, and harassed mentally and physically. On 22.04.2009 at about 6.00 am, when she was asleep, aforesaid persons, with a common intention to kill her, poured kerosene on her and accused 18 No.3-Kullamma/mother-in-law of the deceased lit the fire. On hearing the screaming due to pain, mother of the victim-P.W.1, Mada-P.W.4, Kabbala-P.W.6, Chikkathayakka-P.W.7 and other villagers came to the spot and poured water on her. In the meantime, her sister Shobha and uncle Ramachandra who came to the spot, took her to Kanakapura Government Hospital in an autorickshaw. Therefore, she prayed to take action against the accused persons.
18. Though the learned counsel for the appellant contended that the deceased was suffering from burn injuries and was not in a position to make statement, there is no certificate issued by the Doctor as to in whose presence statement of the victim was reduced into writing by Nagamma-women police constable on the dictation given by P.W.9, the scribe has not been examined and he has not signed the said statement and the police who was present at that time also has signed and the date is altered and therefore, Ex.P.5 alleged dying declaration is a fabricated document and cannot be relied upon, the said contention cannot be accepted, in 19 view of the provisions of Section 32 of the Indian Evidence Act, which reads as follows:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant:
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) when it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.20
A careful perusal of the said provision makes it clear that, there can be no dispute that dying declaration can be made the sole basis for conviction. However, such dying declaration has to be proved as wholly reliable, voluntary and truthful and further, the maker thereof should be in a fit medical condition to make it.
19. A careful perusal of original of Ex.P.5 dated 22.04.2009 depicts that though the words do not disclose that the statement was made in a fit state of mind, but on the top of Ex.P.5, the Doctor-P.W.15 has endorsed that "Patient is fit to make a valid statement" and the same is signed by the doctor. At the bottom of the statement, the Doctor has endorsed that the statement was made before him and the Doctor has put his signature. Though the learned counsel for the appellant contended that the date below the signature of the Doctor is overwritten, the fact remains that the statement recorded on 22.04.2009-Ex.P.5 is duly signed by the deceased-Shylaja and her signature is marked as Ex.P.5(a). P.W.9 has written the shara marked as Ex.P.5(b) to the effect that, on 22.04.2009 between 8.00 am to 8.30 am injured statement was 21 recorded in the Government Hospital in the presence of the Doctor and at 8.45 am, he made the shara and registered a case in Crime No.57/2009 under the provisions of Sections 498A and 307 r/w 34 of the Indian Penal Code. The signature of the Doctor below the shara that the "patient is fit to make statement" is marked as Ex.P.5(c). Ex.P.5(d) is the signature of the Doctor. A mere over writing of the date '21' as '22' below the signature of the doctor is not fatal to the case of the prosecution, when the signature of the victim at Ex.P.5(a) is not disputed by the defence. Therefore, the contention of the learned counsel for the appellant that Ex.P.5 is a fabricated document cannot be accepted.
20. Our view is fortified by the dictum of the Hon'ble supreme Court in the case of Puran chand vs. State of Haryana reported in (2010)6 SCC 566, paragraphs 15 and 16 which reads as under:
"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The 22 court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
16. Number of times, a young girl or a wife who makes the dying declaration could be under the impression that she would lead a peaceful, congenial, happy and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents-in-law or other relatives. Number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be 23 rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests."
21. The statement-Ex.P.5 was recorded by P.W.9 in the presence of the Doctor-P.W.15 and thereafter, registered a case stated supra. Subsequently, the statement is treated as dying declaration, after the victim succumbed to the injuries. There can be no dispute that the dying declaration can be the sole basis for conviction. However, the dying declaration has to be proved to be wholly reliable, voluntary and truthful, as held by the Hon'ble Supreme Court in the case of WAIKHOM YAIMA SINGH v. STATE OF MANIPUR reported in (2011)13 SCC 125, paragraph 20, which reads as under:
"20. There can be no dispute that the dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, 24 where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW
12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement."
22. The Hon'ble Supreme Court consisting of five Judges in the case of Laxman vs. State of Maharashtra reported in (2002)6 SCC 710, at paragraph 3 and 5, held as under:
"3. The juristic 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 25 circumstances which may affect their truth. The situation in which a man is on the deathbed 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 courts 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 always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting 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 looks 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 any adequate method of communication whether by words or by signs or 26 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 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. 27
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] 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 v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) 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 was 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 hypertechnical view that the certification of the doctor was to the effect that 28 the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] Therefore, the contention of the learned counsel for the accused that the existence of Ex.P.5-dying declaration is doubtful and is a fabricated document, cannot be accepted.
23. It is also not in dispute that in the statement-Ex.P.5, though the deceased Shylaja has stated that, on 22.04.2009 at about 6.00 am all the accused persons poured kerosene on her and accused No.3 lit the fire, it is not stated in the said statement that all the accused persons were residing together as on the date of the incident. Though the learned High Court Government Pleader contended that P.Ws.2, 3 and 6 stated that the accused persons 29 were residing together as on the date of the incident, the fact remains that though P.W.1-mother of the deceased has stated in her examination-in-chief that all accused persons are residing together, in the cross-examination, in categorical terms, she has deposed that accused No.4 is residing separately, the deceased Shylaja and her husband-accused No.1 are residing separately. P.W.2- elder sister of the deceased in the examination-in-chief stated that all the accused are residing together. P.W.3 also stated that the accused persons are residing together. P.W.6 has only deposed that during the lifetime of the deceased Shylaja, her husband accused No.1, mother-in-law/accused No.3 and father in law/accused No.2 were in cordial terms. That does not mean that they were residing together. P.W.7 also stated that there was cordial relationship between the accused persons and the deceased and specifically stated that the deceased and her husband and the mother in law, sister in law and brother in law are residing separately.
24. It is an undisputed fact that the prosecution has not examined any of the adjoining owners to prove the fact that as on 30 the date of the incident, all the accused persons were residing together. Except the evidence of P.W.2, the other prosecution witnesses have not deposed before the court that all the accused persons including the deceased were residing together as on the date of the incident. It is also not in dispute that prosecution has not produced any documents like ration card, identity card, which are vital documents to show that the accused persons were residing together. In the absence of any material documents produced, the contention of the learned HCGP that the accused persons were residing together cannot be accepted.
25. The learned counsel for the appellants/accused persons contended that the prosecution has not produced any documents to prove that the victim/deceased was admitted in the Government Hospital, Kanakapura and subsequently, she was referred to Victoria Hospital where she succumbed to the burn injuries on 26.04.2009, the said contention cannot be accepted in view of the evidence of P.Ws.9, 15 and 12. By careful reading of the evidence of P.W.9 who, in categorical terms stated that he received the information from P.W.3 about the incident and informed that the 31 patient is in the Government Hospital, Kanakapura, he went to the Hospital as also spoken to by the P.W.15 that he orally informed the police. Based on the information received, P.W.9 went to the police station, in the presence of P.W.12-Doctor from 8.00 am to 8.30 am recorded the statement and at 8.40 am, the case was registered. The said statement is corroborated with the evidence of the Doctor-P.W.15 who deposed that on 22.04.2009 Shylaja was admitted with burn injuries and he examined her, and all the injuries were grievous in nature. Accordingly, he called the Kanakapura Rural Police, reported that her condition was serious and thereafter police came to the Government Hospital "when the victim was in a fit state of mind" and stated specifically in Kannada as under:
"£Á£ÀÄ DPÉAiÀÄ£ÀÄß ¥ÀjÃQë¹zÀÄÝ DPÉ ºÉýPÉ PÉÆqÀĪÀ ¹ÜwAiÀÄ°è EzÁÝ¼É JAvÀ PÀAqÀÄ §AzÀzÀÄÝ D §UÉÎ £Á£ÀÄ µÀgÁ §gÉzÀÄ PÉÆmÉ.Ö ¸ÀPjÀ µÀgÁªÀ£ÀÄß ¤.¦.5(©) JAzÀÄ CzÀPÉÌ £À£Àß ¸À» EzÉ."
Thereafter, the police enquired her and recorded the statement. It is also not in dispute that on the same day, the 32 accused No.1 was also examined by P.W.15 Doctor at Kanakapura Government Hospital for burn injuries.
26. It is also not in dispute that P.W.12-Doctor who conducted post mortem in the Victoria Hospital stated on oath that he conducted the post mortem from 5.15 pm to 6.15 pm in the mortuary of Victoria Hospital. Nothing has been elicited in the cross-examination P.W.15 to disprove that the deceased was not admitted in the hospital. Ex.P.8-post mortem report issued by P.W.12 clearly depicts that the deceased succumbed to the injuries in the hospital on 26.04.2009. The Doctor who conducted the post mortem has opined that the death is due to Taxaemia as a result burn injuries. Therefore, contention of the learned counsel for the appellants/accused persons that the deceased was not at all admitted to Kanakapura Government Hospital or Victoria Hospital and question of recording her statement by the police in the presence of P.W.15 does not arise, hence the dying declaration is fabricated, cannot be accepted.
27. Though there is some irregularity in conducting the investigation and because of the blunder committed by the 33 Investigating Officer, the dying declaration made by the deceased as her last wish cannot be ignored. It is also not in dispute that the evidence of P.W.7 and P.W.5 depicts that they are not the eye witnesses. The alleged incident occurred on 22.04.2009 at about 6.00 am. The fact remains that the accused No.1-husband of the deceased was residing along with the deceased on the date of the alleged incident, as spoken to by P.W.1 and other witnesses remains unchallenged.
28. The accused No.1 has taken the defence that on the date of the incident himself and his friend D.W.2 were cleaning the tractor and he was not inside the house. The same is supported by the evidence of D.W.2 who has stated in his examination-in-chief that he knows accused No.1 and other accused persons. All are in the same village. On the date of the incident, himself and the accused No.1 were cleaning the tractor and were informed by a boy that wife of the accused No.1 is set ablaze. D.W.2 and the accused No.1 went to the house, the door was closed. Due to the burn injuries they could not touch her. With the help of blankets, she was brought out by accused No.1. As she was serious and was 34 not in a condition to speak, she was taken to the hospital and she died in the hospital. He has further stated that inside the house kerosene was spilled on the floor and there was a kerosene tin. In the cross-examination, he admitted that there are houses adjoining the house of the accused and he is not aware whether deceased was physically and mentally harassed by the accused persons. He further admitted that the adjoining owners went inside the house and extinguished the fire. Admittedly, the boy who informed the accused No.1 has not been examined. When a specific defence is taken by the accused No.1 that he was not there at the place of the incident, it is for him to prove the same as held by the Hon'ble Supreme Court in the case of State of Haryana vs. Sher Singh and others reported in AIR 1981 SC 1021, paragraph 4.
"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:
"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.35
Illustrations
(a) A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission.
(b) B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it."
29. Very strangely, in the statement of the accused recorded by the learned Sessions Judge under Section 313 of the Code of Criminal Procedure, the accused No.1 has answered to all the questions put to him either as 'false' or 'not known' and, he has not explained the incriminating circumstances adduced by the prosecution against him. In the absence of proper explanation, the contention that "accused No.1 was not in the house at the time of the incident", cannot be accepted in view of the provisions of Section 106 of the Indian Evidence Act, which contemplates that, "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him". Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported (2020)1 SCC Crimes 381, paragraph 11, wherein, it is held as under:
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11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
30. It is also not in dispute that out of the wedlock two children were born. It is specific case of the prosecution that the accused No.1-husband of the deceased and other accused persons harassed the deceased for want of male child. There is incriminating evidence against accused No.1. By careful perusal of the evidence of P.Ws.1 to 16 and material documents Exs.P.1 to 10 and material objects M.Os.1 to 3 and the evidence of D.Ws.1 and 2 and Exs.D.1 to 3, clearly depicts that, there was harassment by the accused persons from the beginning till the death of the deceased on the unfortunate day. D.W.2 examined on behalf of accused No.1 has stated that he was not aware of the harassment. The material on record clearly depicts that the prosecution failed to prove beyond reasonable doubt that all the accused persons assembled unlawfully 37 in the house of accused No.1 with common object to commit the offence on the unfortunate day of the incident. Therefore, the Trial Court is not justified in convicting the accused persons for the offence punishable under Section 143 of the Indian Penal Code.
31. It is also not in dispute that the material evidence on record clearly depicts that as on the date of the incident as admitted by P.W.1-mother of the deceased and Chikkathayamma-P.W.7 who specifically stated that all accused persons are residing separately and, accused No.1 and the deceased were residing together in a separate house. Therefore, from the evidence of prosecution witnesses including the dying declaration, it is not forthcoming that all the accused persons were residing together as on the date of the incident. Except stating that all accused persons poured kerosene and lit the fire, there is nothing to prove that they were all residing together. Therefore, it is not possible to hold that the mother-in- law/accused No.3, sister-in-law/ accused No.4 and brother-in-law/ accused No.5 have committed an offence punishable under Section 302 of the Indian Penal Code. The Hon'ble Supreme Court, time and again held that in-laws should not be included unnecessarily in 38 dowry harassment cases. In the absence of oral and documentary evidence the in-laws including the mother-in-law should not be indicted unnecessarily as held by the Hon'ble Supreme Court in the case of Sher Singh @ Partapa vs. State of Haryana reported in (2015)3 SCC 724, paragraph 20 held as under:
"20. Now, to the case in hand. It has been contended before us, as was also unsuccessfully argued before both the courts below that there was a "delay" in lodging the FIR. There is no perversity in the concurrent views that its lodgement after ten hours on the day next after the tragedy i.e. 8-2-1998 did not constitute inordinate delay such as would justifiably categorising the FIR as an afterthought or as contrived. The complainant along with family and friends had to travel to another village; he would have had to first come to terms with the tragedy, make enquiries and consider the circumstances, before recording the FIR. Equally preposterous is the argument that once the High Court had seen fit to acquit the other accused, namely, Davinder Singh (brother-in-law) and Jarnail Singh (father-in-law) the appellant/husband should have been similarly acquitted. It cannot be ignored that the accused was not living with his parents and brother, and it is justified nay necessary to require stronger 39 proof to implicate the family members of the husband. It has been essayed by the learned counsel for the appellant to impress upon us that the cruelty postulated in this provision has not been shown to have occurred "soon before her death". This argument, assumes on a demurrer, that statutory cruelty had, in fact, been committed. The deceased and the appellant were married in February 1997 and the former committed suicide within one year; to even conjecture that it was not soon before death, has only to be stated to be stoutly shot down."
Therefore, the punishment imposed on accused Nos.3, 4 and 5 under the provisions of Section 302 r/w 149 cannot be sustained.
32. The evidence on record clearly depicts that there was harassment and cruelty by the mother-in-law, sister-in-law, brother-in-law and father-in-law. The father-in-law has died during pendency of the Trial. Based on the evidence on record the prosecution clearly proved that there was harassment for want of male child by all the accused persons. Wife alone cannot be blamed for giving birth to female child. Husband also has a major role in this aspect, which has been scientifically proved. Therefore, the 40 learned Sessions Judge is justified in invoking the provisions of Section 498A r/w 149 of the Indian Penal Code against accused Nos.1, 3, 4 and 5. Accordingly, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge against accused Nos.1, 3, 4 and 5 sentencing them to undergo imprisonment for the offence punishable under Section 498A r/w 149 of the Indian Penal Code has to be confirmed and the sentence passed for the offence punishable under Section 302 r/w 149 of the Indian Penal Code as against accused Nos.3, 4 and 5 has to be modified.
33. It is the duty of the accused No.1/husband to take care of his wife and ensure that she should not be harmed by himself or any other members of the family. In Manusmruthi, Women was treated as under:
AiÀÄvÀæ £ÁAiÀÄð¸ÀÄÛ ¥ÀÆdåAvÉ gÀªÀÄAvÉ vÀvÀæ zÉêÀvÁ: AiÀÄvÉöæ ÊvÁ¸ÀÄÛ £À ¥ÀÆdåAvÉ ¸ÀªÁð¸ÀÛÀvÁ楮 sÀ : QæAiÀiÁ:41
"Where women are worshipped, the Gods rejoice; Where they are not respected, all tasks become fruitless".
The Gods are kind to the homes where women are treated with honour. Where women are not honoured, there all actions (rituals) go in vain. Families where women are unhappy are doomed to be destroyed soon. Homes where women are not unhappy are destined always for greater prosperity.
34. The meaning of Sapthapadi Manthra, which is compulsory even today for the completion of marriages in Hindu law runs as follows:
Fµï KPÀ¥À¢Ã ¨sÀª,À HeÉð ¢é¥À¢Ã ¨sª À ,À gÁAiÀĸÉÆàõÀAiÀiï wæ¥À¢Ã ¨sÀª,À ªÀiÁAiÉÆà ¨sª À ÁåAiÀÄ ZÀvÀĵÀà¢Ã ¨sª À À, ¥ÀæeÁ¨sÀå:
¥ÀAZÀ奢 À à ¨sÀªÀ, IÄvÀȨsÀå µÀlà¢Ã ¨sª À À, ¸Àgª À Á ¸À¥ÀÛ¥À¢Ã ¨sÀª,À ¸ÁªÀiÁªÀÄ£ÀÄPÀëvÁ ¨sª À À, ¥ÀƪÁð£ï «AzÁªÀºÉÊ §ºÀÄA¸ÉÛà ¸ÀAvÀÄ dgÀzµ À ÀÖAiÀÄ.
42
The seven steps represent the prayer by the husband to the wife for:
(1) nourishment in full, (2) mutual strength, (3) health and prosperity, (4) comfort, (5) progeny (6) enjoyment of the seasons; and (7) the seventh step to be his friend and companion for life, and he invokes the Gods for the blessings for the birth of numerous long-living children.
The society that provides respect and dignity to woman flourishes with nobility and prosperity and a society that does not put woman on such a high pedestal have to face miseries and failures regardless of how so much noble deed they perform otherwise.
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35. For the reasons stated above, the point raised for consideration in the present Criminal Appeal has to be answered partly in the affirmative holding that the appellants/accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence, and the prosecution has failed to prove the case beyond reasonable doubt that the accused Nos.1,3,4 and 5 have committed the offence punishable under Section 143 r/w 149 of the Indian Penal Code, the prosecution proved beyond reasonable doubt that accused Nos.1, 3, 4 and 5 have committed the offence punishable under Section 498A r/w 149 of the Indian Penal Code and the prosecution failed to prove the case beyond reasonable doubt that the accused Nos.3, 4 and 5 have committed the offence punishable under Section 302 r/w 149 of the Indian Penal Code; and further, the prosecution has proved beyond reasonable doubt that the accused No.1 has committed an offence punishable under Section 302 r/w 149 of the Indian Penal Code.
36. In view of the above, we pass the following: 44
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction and order of sentence, convicting and sentencing the accused Nos.1, 3, 4 and 5 for the offences punishable under Section 143 r/w 149 of the Indian Penal Code is hereby set-aside. The accused Nos.1, 3, 4 and 5 are acquitted for the offence punishable under Section 143 r/w 149 of the Indian Penal Code.
(iii) The impugned judgment of conviction and order of sentence insofar as sentencing the accused Nos.1,3,4 and 5 for the offence punishable under Section 498A r/w 149 of the Indian Penal Code is hereby confirmed.
(iv) The impugned judgment of conviction and Order of sentence insofar as sentencing the accused Nos.3, 4 and 5 for the offence punishable under Section 302 r/w 149 of the Indian Penal Code is hereby set-aside. The accused Nos.3, 4 and 5 are acquitted for the offence punishable under Section 302 r/w 149 of the Indian Penal Code
(v) The impugned judgment of conviction and order of sentence convicting the accused No.1 for the offence 45 punishable under Section 302 r/w 149 of the Indian Penal Code sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.25,000/-, in default, to undergo rigorous imprisonment for a period of one year, is hereby confirmed.
(vi) The accused Nos.3, 4 and 5 are entitled to the benefit of set off under Section 428 of the Code of Criminal Procedure.
(vii) The period of imprisonment undergone by accused Nos.3, 4 and 5 for the offence punishable under Section 498A r/w 149 of the Indian Penal Code is held sufficient.
(viii) The jurisdictional jail authorities shall release accused No.3, if she is not required in any other case.
(ix) The bail bonds in respect of accused Nos.3, 4 and 5 shall stand cancelled.
Sd/-
JUDGE Sd/-
JUDGE kcm