Karnataka High Court
State Of Karnataka vs Mahesha on 17 January, 1995
Equivalent citations: 1996(1)ALT(CRI)275, ILR1995KAR1090
JUDGMENT Mirdhe, J.
1. This Criminal Appeal is preferred by the State against the judgment dated 30.6.92 passed by the Sessions Judge, Madikeri, in S.C. 33/86 acquitting the respondents - accused of the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act and under Section 302 read with Section 114 and Section 304B I.P.C.
2. We have heard Sri Marigowda, learned High Court Government Pleader for the appellant - State and Sri Bhagwan, learned Counsel for the respondents, fully and perused the records of the case.
3. The case of the prosecution is as follows :- The deceased Leelavathy was the legally wedded wife of accused No. 1. Her marriage with accused No. 1 took place on 18.6.86 at Shetty Chatram, Ramanathapuram. Before the finalisation of the marriage with accused No. 1, the accused demanded a dowry of Rs. 30,000/- and 15 tolas of gold, but due to the intervention of the elders that demand of dowry came to be reduced and it was agreed by the father of the deceased that he would pay Rs. 10,000/- cash and 5 1/2 tolas of gold besides marriage expenses to be borne by the father of the bride. The father of Leelavathy gave cash of Rs. 2000/- to Puttaswamy - A-2 and the remaining Rs. 8000/- was paid before marriage and after eight days in the presence of C.W.3, Nalluregowda the remaining cash of Rs. 8000/- was paid to A-1 and A-2. This was paid as there was demand of dowry. The 5 1/2 tolas of gold ornaments were also prepared by the Goldsmith in Saligram, and the marriage was performed. After the marriage, Leelavathy went to the house of accused No. 1 to lead a marital life with him. Because of the 'Aashada' month which was considered to be inauspicious month for the newly married couple to live together, Leelavathy came to her parent's house and at that time she complained to her parents and brothers that her husband - accused No. 1 and his parents were giving her trouble on account of they being not satisfied with the dowry given by Leelavathy's father. On 30.7.86 when P.W.11 Subbashetty was in the School at Saligram his younger brother Govindashetty came there and informed him that accused have sent a word that Leelavathy was in a serious condition. He went to Thorenoor village and learnt that his father had gone to Bangalore for treatment. When they came to their house no one was in the house, but he came to know that Leelavathy was shifted to Kushalnagar in a very serious condition. P.W.11 and others came there and learnt that Leelavathy's condition was very serious and she was taken to Madikeri Government Hospital. They came to Madikeri at 5 p.m. and found Leelavathy in Emergency Ward. She was conscious at that time and she told her brother that the accused told her that she had returned home empty handed and she told her husband as it was Ashada Masa she had not brought money and therefore he removed her jewels for the purpose of pledging. She felt sorry and she slept in the room. About 9 a.m. the next day the accused No. 1 Mahesh tackled her that she was always sleeping whereas his parents were working in the 'gadde' and so saying he brought kerosene, sprinkled over her clothes and struck a match to her clothes, Leelavathy raised hues and cries. Hearing her cry, some aged person came and poured water on her. After learning this, he went to Saligrama and returned to Madikeri on 31.7.86. On 2.8.86 Leelavathy breathed her last at 5.30 p.m. in the hospital. After two months the C.O.D. questioned it. The police registered a case on the complaint of P.W.11 and after completing the investigation the police filed charge-sheet against the accused.
4. It is not disputed in this case that the marriage of this unfortunate girl Leelavathy took place nearly 40 days before her death. Initially the police registered a case under Section 307 I.P.C. But subsequently after the death of Leelavathy the offence came to be altered to Section 302 I.P.C. After investigation the police filed charge-sheet for the offence under Section 302 I.P.C. and other offences under the Dowry Prohibition Act. The police registered a case on the intimation of the doctor in Madikeri Hospital, who has been examined as P.W.19 and who informed the police about the death of Leelavathy. It is the case of the prosecution that the accused No. 1 committed the murder of Leelavathy as he was not satisfied with the dowry that she brought and also that she was always avoiding to do work in the house when his aged parents were going to 'gadde' for doing the work. The case of the prosecution against accused Nos. 2 and 3 is that they abetted the commission of murder of Leelavathy by accused No. 1.
5. The pieces of evidence the prosecution relied on against the accused Nos. 1 to 3 so far as the offence punishable under Section 302 read with 114 I.P.C. are concerned the alleged dying declarations made by deceased Leelavathy before some persons and the recovery of M.Os 2 to 12 in pursuance of the alleged voluntary statement of accused No. 1 after his arrest. The trial Court has disbelieved the prosecution case regarding the dying declaration made by the deceased before certain persons and also the alleged recovery of the M.Os.
6. The prosecution is relying on Ex P-38 the dying declaration alleged to have been recorded by P.W.29 through P.W. 36. Ex. P-36 is the second dying declaration that is relied upon by the prosecution which is alleged to have been recorded by P.W. 26 the Taluk Executive Magistrate in the presence of P.W.27 Dr. Doddagowdar. Ex. P-43 is another dying declaration that is relied upon by the prosecution which is alleged to have been recorded by P.W.38 the Deputy Superintendent of Police who was also an Investigating Officer in this case. The other dying declaration relied upon by the prosecution is alleged to have been made before P.Ws 11, 12, 13 and 14.
7. The first written dying declaration the prosecution has relied upon is Ex. P-38. The evidence of P.Ws 29 and 36 is relevant on this point. P.W.29 has stated in his evidence that on 30.7.86 he was entrusted with the duty of recording the statement of Leelavathy and he went to Government Hospital accompanied with P.W. 36 Jayalakshmi and he questioned her and her statement was got recorded by him through P.W.36. He has identified Ex. P-38 as the statement made by the deceased before him. P.W.19 K.R. Radhakrishna is the Doctor who first admitted Leelavathy on 30.7.86 in the Hospital at Madikeri and he sent the intimation to the police as per Ex. P-34. It will be pertinent to note the condition of Leelavathy as noted by this Doctor P.W.19. He has stated that he has noted in the Accident Register in the relevant entry at Ex. P-35 (a) that Leelavathi was talking irrelevantly and answering few questions and she was restless and this was because of shock due to pain. His evidence also discloses that Leefavathy has sustained 75% burns of body surface. The evidence of P.W.19 is very clear that when admitted, Leelavathy was restless and answering few questions and she was talking irrelevantly. Against this background we have to see the evidence of P.W.29 who claims to have recorded the statement of the deceased as per Ex. P-38. P.W.29 has not recorded the statement in his own hand writing. He has stated that he did not take the signature of the Doctor to the statement Ex. P-38. When the deceased had suffered 75% of the burn injuries and was restless and answering few questions as per the evidence of P.W.19, we think that it was incumbent on the part of P.W.29 to ascertain from the Doctor whether she was in a fit condition to give statement when the condition of Leelavathy was very serious. In that situation P.W.29 ought to have examined Leelavathy in question and answer form. But P.W.29 does not record the statement in question and answer form. But he claims to have recorded it through P.W.36 and that too without ascertaining from the Doctor as to whether the lady was in a fit condition to speak and also in the absence of the Doctor. P.W.36 also admits that no Doctor was" present at the time of recording Ex. P-38. He was admitted in his cross-examination that when P.W.29 Somanna dictated to him the statement of the lady it was 2.p.m. He has further stated that he did not record any statement of Leelavathy at 5 p.m. If Ex. P-38 is perused, it goes to show that it is purported to have been recorded at 5.30 p.m. At one breath P.W.36 says that the brothers of Leelavathy were present when he was recording the statement of Leelavathy. In another breath he says that they were not present. The very recording of the statement as per Ex. P-38 appears to be suspicious in view of the condition of the deceased who had suffered 75 degree of burn injuries and who was restless and was answering few questions and that too when there is a contradiction in the evidence of P.Ws 29 and 36 as to the recording time of the said dying declaration. The dying declaration is in a form of narration and not in a question and answer form. It is very doubtful that a patient who was suffering 75% of burns on her body made her dying declaration in a narrative form as recorded in Ex. P-38. Therefore, the trial Court was justified in not relying on Ex. P-38.
8. The next piece of evidence that is pressed into service by the prosecution is the evidence of P.Ws 26 and 27 and Ex. P-36 which is said to be the dying declaration of Leelavathy made by her before P.W. 26 in the presence of Dr. Doddagowdar examined as P.W.27. We have perused Ex. P-36. It is not in question and answer form. It is also in a narrative form. P.W.26 has stated that on 31.7.86 he went to the Government Hospital, Madikeri at 6 p.m. in response to the requisition received by him to record the dying declaration of Leelavathy and he enquired the Doctor whether the patient was in a fit condition to give the dying declaration and after the Doctor told him that Leelavathy was in a condition to give statement he questioned her in the presence of the said Doctor. First he questioned her about her name to which she answered, he asked her husband's name to which she gave her husband's name. But when he asked her age she did not answer and thereafter she narrated the occurrence which he recorded as per her statement and the statement is Ex. P-36 and his signature is at Ex. P-36 (a). P.W.27 corroborates him by stating that he told P.W.26 when he came to Hospital to record the dying declaration of Leelavathy that she was in a fit condition to give her statement and that certificate he has done after P.W.26 has recorded the statement. Before we assess the value of the dying declaration alleged to have been recorded by P.W.26, it will be instructive to refer some of the Rulings of the Supreme Court on the question of dying declaration, how it is to be recorded and its evidentiary value.
9. In Kushal Rao v. State of Bombay, the Supreme Court has held as follows :-
"Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But it is not right in principle to do so. Though under Section 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the Act, lays down as a rule of prudence based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a Rule of Law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. Generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver."
It has further laid down that it cannot be laid down as an absolute Rule of Law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made, that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence, that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; that a dying declaration which has been recorded by a competent Magistrate in the proper manner, (emphasis supplied by us) that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character and that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
10. In Rabichandra Padhan and Ors. v. State of Orissa, the Supreme Court has held that the recording of dying declaration should preferably be in question and answer form. The Supreme Court in K. Ramachandra Reddy and Anr. v. The Public Prosecutor, has laid down as follows :-
"The dying Declaration is undoubtedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoot a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration."
The Supreme Court in this Ruling has further held as follows :-
"A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. In order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
Another significant observation made by the Supreme Court in this case is as follows :-
"One of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind."
The Supreme Court has relied on its earlier Decision - Lallubhai Devchand Shah and Ors. v. The State of Gujarat in this regard. The Supreme Court in 1972 Criminal Law Journal 828 Lallubhai Devchand Shah and Ors. v. The State of Gujarat, lays down as follows :-
"There can be no doubt that when a dying declaration is recorded the person who records the statement must be satisfied that the person who makes the statement is consciously making the statement understanding the implications of the words he uses. The expression 'fit state of mind' used in the case referred to above means no more than that."
Keeping in mind these Rulings of the Supreme Court wherein the Supreme Court has given guidelines as to how the dying declaration was recorded, as to how its evidentiary value is to be assessed, we have to see the evidence of P.Ws 26 and 27.
11. P.W. 26 as pointed out by us recorded the statement of the deceased. He has stated that he recorded the statement Ex. P-36. First thing to be noted is Ex. P-36 is not in a question and answer form but it is in a narrative form. When the deceased was admitted on 30.6.86, her condition was serious. She had 75% of burn injuries and she was restless and was answering few questions. Against this background, whether the deceased was in a fit condition to give her statement as per Ex. P-36 in a narrative form is a question that arises in the mind. It appears highly doubtful that a person suffering pain due to those injuries would be in a position to give her statement in a narrative form. P.W.26 admits that a requisition was sent by the police to record her statement. But that requisition was not produced in this case. He states in his statement that he has not recorded the specific questions put to her. He has also not stated in Ex. P-36 whether he disclosed his identity to Leelavathy before proceeding to record her statement. Though he claims that he recorded Ex. P-36 in the presence of P.W.27 he had not taken prior opinion of the doctor -P.W.27 that Leelavathy was in a fit condition to give her statement. This becomes apparent in the evidence of P.W.27 himself. P.W.27 was present when P.W.26 recorded the statement of Leelavathy as per Ex, P-36. P.W.27 has stated as follows :-
"After recording the statement and signing the same upon it. I was handed over this statement and I have made endorsement to the said Ext. P36 (b) that she was in a fit condition to give declaration."
12. The next dying declaration relied upon by the prosecution is Ex. P-43 alleged to have been recorded by P.W.38 Mr. Badas who was the Deputy Superintendent of Police, Somwarpet incharge of the investigation. He has stated that he went to the Hospital on 31.7.86 and he questioned and recorded her statement as per Ex. P-43. He states that he contacted the Duty Doctor and ascertained whether Leelavathy was in a fit condition to give statement and as she was in a good condition, he recorded her statement. There was no endorsement of the Duty Doctor as to whether Leelavathy was in a fit condition to give her statement. Even there is no separate Certificate by the duty doctor about the condition of Leelavathy. In the cross-examination P.W.38 admits that it was Machaiah - a Constable Writer who recorded Ex. P-43. It means that P.W.38 did not himself record the statement but he got it recorded through Machaiah. But the prosecution did not cite Machaiah as a witness nor examined Machaiah during the trial. There is no satisfactory material to hold that P.W.38 ascertained the condition of Leelavathy from the Duty Doctor before recording her statement and it is also very much doubtful whether the statement as claimed by him has been recorded or it is only a formality that has been indulged by P.W.38 because he admits that he did not send either Ex. P-43 or its copy to the concerned Jurisdictional Magistrate. Therefore, the trial Court was justified in disbelieving Ex. P-43 also.
13. The next piece of evidence that is pressed into service by the prosecution is the alleged oral dying declaration made by the deceased before P.Ws 11, 12, 13 and 14. P.W.11 has stated that when he went to the Hospital on the date he saw his sister Leelavathy and Leelavathy made the statement before him as follows :-
It is very significant to note that the very first sentence that Leelavathy had told before him is that he should save her life first. P.W.12 has also stated as follows :-
But P.W.13 does not support the prosecution. Since the evidence of P.W.13 did not fail within the line with the other two witnesses, the prosecution has treated this witness as hostile and cross-examined. Now, coming to the evidence of P.W.14, he has stated that his sister told him as follows :-
If these Dying Declarations are read with the Ruling State of Gujarat v. Khuman Singh Karan Singh and Ors., wherein the Supreme Court has held that inconsistency between the first dying declaration and the subsequent two dying declarations which betrays the possibility of her being amenable to tutoring these dying declarations will also be not sate to be relied upon. Looking to the condition of the deceased, the possibility of her making a dying declaration in such a lengthy form is highly improbable. The possibility of her tutoring also cannot be ruled out. Moreover, the dying declarations the versions of which were given by different witnesses are not consistent with each other. The evidence of these witnesses on the dying declarations also cannot be safe to rely upon. P.W.38 has stated in his evidence that after the arrest of the accused he questioned him and the accused led him to the shop of P.W.2 Ganesh and got produced M.Os 2 to 12. But P.W.38 has not recorded the voluntary statement of accused No. 1. In Bhimappa Juinappa Naganur v. State of Karnataka the Supreme Court has held that where the voluntary statement of the accused is not recorded the recovery of the incriminating articles in pursuance of the voluntary statement becomes inadmissible, This Court has followed the same principle in Vijayakumar v. State. This basic infirmity in the prosecution case is sufficient to reject the prosecution case regarding the recovery of M.Os 2 to 12 at the instance of accused No. 1. Therefore, the evidence of the prosecution is not enough to connect the accused persons with the offence. The prosecution has also alleged that the accused have committed the offences under Sections 3 and 4 of the Dowry Prohibition Act. The trial Court has disbelieved this on the ground that this case of the prosecution has been developed only after C.O.D. has taken up investigation of the case. We do not think that the trial Court was wrong in coming to the conclusion. Viewed from any angle, the trial Court was justified in acquitting the respondents and we do not think that the order of the trial Court acquitting the respondents-accused suffers from any infirmity and requires interference. Hence, the Appeal is dismissed.