Karnataka High Court
Somanath S/O Parashuram Yellurkar vs The State Of Karnataka on 28 August, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.2535 OF 2008
BETWEEN:
Somanath,
S/o. Parashuram Yellurkar,
Aged about 27 years,
Occupation: Mechanic,
Resident of House No.132,
Maruthi Galli, Angol,
Belgaum. ...APPELLANT
(By Sri. Ramachandra A. Mali, Advocate)
AND:
The State of Karnataka,
Through the Udyambag Police
Station, Belgaum,
District: Belgaum,
Now represented by its
State Public Prosecutor,
High Court of Karnataka,
Circuit Bench, Dharwad. ...RESPONDENT
(By Sri. V.M. Banakar, Additional State Public Prosecutor)
---
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This appeal is filed under Section 374 of the Code of
Criminal Procedure, 1973 praying to call for the records in
S.C.No.274/2006 on the file of the Prl. Sessions Judge,
Belgaum and set aside the judgment of conviction dated 14-08-
2008 and sentence dated 18-08-2008 made in S.C.No.274/2006
passed by the Principal Sessions Judge, Belgaum for the
offences punishable under Section 306 and 498-A of the the
Indian Penal Code, 1860.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor. The appellant was the accused in the following circumstances:
On the basis of the complaint lodged by one Doulat who was the brother-in-law of the appellant herein, it was alleged that the appellant had married the complainant's sister Kalpana as on 30-04-2006 and the appellant and Kalpana had set up their matrimonial home at Angol, Belgaum. Kalpana's maternal home was at Majagaon, Belgaum. On 3-7-2006, Kalpana is said to have returned to her maternal home and had 3 complained that the present appellant was suspecting her fidelity and was causing serious harassment and he had even taken her to one Dr. Tendulkar of Tilakwadi for a sonography test to ascertain that she had not earlier undergone child birth or pregnancy. This was on the suspicion of the appellant that Kalpana had an illicit relationship earlier with someone else and that she was even pregnant by such relationship. This had continued from the first day of their marriage till she returned to her maternal home. It was also stated that while leaving, she had left behind her mangal sutra and her toe rings, which were the marks of a married woman, thereby indicating that she would have nothing more to do with the appellant.
Though there were attempts at reconciliation, firstly through the medium of the uncle of Kalpana who had in the first instance brought about the alliance and marriage and in spite of his best efforts, Kalpana had refused to go back to her matrimonial home and had remained in her maternal home. On 4 6-7-2006, that is four days after she returned to her maternal home, when the complainant and his mother were at home, at about 4.30 p.m., they heard a cry by Kalpana from the bathroom. Kalpana did not answer or open the door, to their queries, hence the complainant had kicked open the door to find that Kalpana was ablaze and she had set herself on fire. The complainant however managed to extinguish the fire, by which time, she had suffered severe burn injuries. The neighbourers also rushed to the house of the complainant and they all together took Kalpana to the District Hospital for treatment. But Kalpana had suffered 95 to 98% burn injuries, as diagnosed by the Doctors and she had died within 24 hours of her admission to hospital. But before her death and three hours after her admission to the Hospital, a dying declaration had been recorded by the Taluk Executive Magistrate. It is in that background that on the basis of the complaint, the police had conducted further investigation and had charge-sheeted the appellant and after further proceedings when charges were 5 framed, the appellant had pleaded not guilty and claimed to be tried. The prosecution thereafter tendered evidence through its witnesses PW-1 to PW-18 and marked Exhibits P1 to P27 and material objects 1 to 6. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity) and on hearing the parties as regards the rival contentions, the court below had framed the following points for consideration:
"1) Whether prosecution has proved beyond all reasonable doubt that the accused being the husband of deceased Smt. Kalpana, subjected her to cruelty right from the date of marriage on 30.4.2006 till 4.7.2006, both physical and mental, in as much as, he was suspecting that the deceased had illicit intimacy with others and that, he subjected her to medical test in this regard and the medical report was in the negative, and thereby committed an offence under Section 498-A of I.P.C?
2) Whether prosecution has proved beyond reasonable doubt that on 6.7.2006 at 4.30 p.m. Smt. 6 Kalpana, being unable to bear the ill-treatment of the accused, committed suicide in the bathroom of the house of her parents at Kalmeshwar Nagar, Majagaon, Belgaum, in as much as, she poured kerosene on her body and set fire to herself and sustained burn injuries and as a consequence of the said injuries, she passed away on 7.7.2006 in District Hospital, Belgaum, while undergoing treatment, and that the accused abetted commission of suicide by Smt. Kalpana in view of illtreatment both physical and mental meted out by the accused and thereby committed an offence under Section 306 of I.P.C.?
The Trial Court answered Points 1 and 2 in the affirmative and convicted the appellant and sentenced him to undergo rigorous imprisonment for 8 years for the offence punishable under Section 306 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) and to undergo rigorous imprisonment for three years for the offence punishable under Section 498-A of the IPC. It is this which is under challenge in the present appeal.
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2. The learned counsel for the appellant would contend that there is improper analysis of the evidence and the court below has overlooked glaring circumstances while drawing inferences, without basis, in convicting the appellant. It is pointed out that PW-14 was the mother-in-law of the appellant and she had not supported the case of the prosecution. In that, she had stated that she did not know the reason as to why the deceased had set herself on fire and it is also denied that she had made enquiries with the deceased Kalpana and that she had informed her of assault by the accused on suspicion of her fidelity or that she had been taken for examination by a Medical Practitioner to ascertain whether she had earlier undergone child birth or had been pregnant. This crucial evidence having been overlooked, results in a miscarriage of justice. The reliance placed on the evidence of PWs-11, 12, 13 and 15 wherein PWs 13 and 15 are the brother and uncle, respectively, of the deceased Kalpana and even though their evidence was not supported by the mother of Kalpana PW-14, the court 8 below has proceeded to accept their evidence while the same could not be reconciled with the evidence of the mother and therefore, it could not be said that the prosecution had established its case beyond all reasonable doubt. Except the evidence of these witnesses, there was no material on record to indicate that there was ill-treatment and harassment by the appellant from the very first day of their marriage. The only other evidence that is sought to be projected by the prosecution is the so-called dying declaration Exhibit P-14 that is produced by the prosecution. From a perusal of Exhibit P-14, it is evident that a Medical Practitioner has merely stated that the deceased was fit to make a dying declaration. This is in the face of the circumstance that the deceased had suffered 98% burn injuries and according to several witnesses, was not in a position to speak and even according to the Medical Practitioner who had examined her at the very first instance and the Medical report that was prepared would indicate that she had a very feeble pulse and there was no recording of the blood 9 pressure of the deceased nor was it stated that she was in a position to speak though it was recorded that she was responding to verbal commands. This would indicate that she was hardly in a position to speak and the certification by the Medical Practitioner that she was fit at that point of time is on the face of it not acceptable, given the admitted condition in which she was found. The dying declaration itself is not in the question answer form. But is recorded by the Taluk Magistrate as if it was narrated to him. However, from a comparison of the complaint and the dying declaration, it would be seen from the tenor of the dying declaration that it is a verbatim replica of the complaint. Therefore, it would be difficult to accept the dying declaration as one made by Kalpana , when she was in a state of trauma having suffered 98% burn injuries and a cogent recording being made of her statements in tune with the complaint barely three hours after the incident of she having set herself on fire, is totally unbelievable and the learned counsel would submit that to proceed on the basis of such a dying 10 declaration, would not meet the ends of justice in having sentenced the appellant to a serious punishment of 8 years imprisonment. Further, the Taluk Executive Magistrate had not ascertained as to whether the certification of the fitness of the deceased to make a dying declaration, had been made by the duty Doctor. There is no indication that the Doctor who had provided the certification was indeed the duty Doctor and even in the evidence of the Medical Practitioner who had made the certificate PW-12, does not categorically state that the deceased was in a position to speak and was in a state of mind to make a declaration.
Insofar as the allegation of an offence punishable under Section 306 IPC, the learned counsel would seek to point out that abetment as defined under Section 107 of the IPC would have to be shown to be present in order that a case could be made out for an offence punishable under Section 306 IPC. The deceased had left the house of the appellant and it is four 11 days later that she had committed suicide. The appellant was not in the presence or in the company of the deceased to have abetted the commission of the offence. There is no such allegation of the appellant having driven the deceased to commit suicide. The allegation that there was constant harassment and it is on account of such harassment that she was driven to commit suicide and thereby there was abetment, is not in conformity with the language of Section 107. Therefore, the question of abetment of the commission of suicide, is apparently absent. PW-13, namely the uncle of the deceased had categorically admitted that Kalpana had returned home of her own accord and that in spite of request of the accused and others to reconcile and go back to the matrimonial home, she had flatly refused, compelling him to seek the pardon of the accused in not being able to convince her to return to her matrimonial home. Therefore, the fact that it was Kalpana who was adamant about not going back to her matrimonial home cannot be attributed to any ill-treatment, but could be assigned 12 to the dislike of Kalpana of the very idea of marriage with the appellant and in the absence of any direct evidence of ill- treatment and harassment and suspicion of fidelity of Kalpana, it cannot be presumed on the basis of the allegations made by the complainant that there was any such background which has resulted in Kalpana committing suicide. Except the dying declaration, there is no other direct evidence as regards the allegation of the appellant being suspicious of Kalpana's fidelity and he having tormented her with reference to the same throughout the short period of their marriage like driving her to commit suicide. The conduct of the appellant in immediately contacting the complainant and the mother of Kalpana when she left her matrimonial home and making attempts to bring about a reconciliation by coming over to her house after she had left him and even when she was admitted in the hospital with severe burns, the appellant having gone there within 10 minutes of her admission to hospital, would not indicate the nature of a man who was constantly tormenting and punishing the 13 deceased. Contrary to the statement made by the Medical Practitioner that the deceased was in a position to make a statement, PW-2 who was the person who had moved the deceased to hospital after the incident, has stated that the entire body of Kalpana was totally burnt and was she not in a position to talk. PW-13 has also stated that Kalpana was totally burnt and she was unconscious and she did not speak to him. PW-14, the mother of the victim had also stated that she was not in a position to talk from the time she was burnt till her death. PW- 11, the Taluk Executive Magistrate had stated that he did not enquire as to who was the Duty Doctor of the ward and he had not taken the Fitness Certificate of the ward from the Duty Doctor. This coupled with the fact that the so-called dying declaration, is a verbatim repetition of the complaint, would clearly indicate that it was a document that was engineered only to bring home the charges against the appellant, notwithstanding that there is no other evidence in support of the appellant having abeted the commission of suicide and having 14 treated the deceased with such cruelty as to driving her to commit suicide. The ingredients of an offence punishable under Section 498-A were therefore totally absent in the face of there being no direct evidence of any such harassment and ill- treatment.
PW-4, the Medical Practitioner to whom the appellant had allegedly taken Kalpana for examination to ascertain whether she was pregnant earlier through someone else, is also rendered a falsity, as the said Medical Practitioner examined as PW-4 has stated that the deceased had come to him with a complaint of abdominal pain and urinary infection and it was incorrect to allege that she had been taken there for an examination of whether she had any signs of an earlier pregnancy. Therefore, the entire prosecution case rests on the evidence of PWs-11, 12, 13 and 15 coupled with Exhibit P-14 which by itself, could not sustain the case of the prosecution justifying the conviction of the appellant to serious punishment. 15
The learned counsel would seek to place reliance on authorities in support of the case that unless there was proper certification of the deceased to make a dying declaration, the dying declaration ought not to be accepted in proof of the charges and the court should proceed with extreme prudence in this regard and hence, seeks that the judgment be set-aside and the accused be acquitted.
3. While the learned Additional State Public Prosecutor would seek to justify the judgment of the court below and would seek to substantiate the findings, he would point out that it is not denied of the deceased having left the appellant and the fact that she had left behind her mangal sutra and toe rings, thereby declaring in her own way that she no longer intended to be the legally wedded wife of the appellant. This was hardly four months after they were married and was indicative of the suffering that she had undergone over a period of four months. The fact that she refused to go back to the matrimonial home in 16 spite of persuasion by her mother, brother and uncle, and had remained in her maternal home before she committed suicide, would indicate the trauma that she was undergoing in having been treated by the appellant with cruelty and complete insensitivity in having accused of her infidelity, constantly, over the period during which she was in her matrimonial home and also having taken her to a Medical Practitioner for physical examination to ascertain that she was not pregnant earlier though on the pretext that it was for urinary infection, was sufficient cause for the deceased to have been driven into a deep state of depression and having committed suicide. The contention that abetment as defined under Section 107 must be shown to have been present and that since the deceased was living in her maternal home and away from the appellant, there could be no such abetment or instigation, is not the correct interpretation. Though there was physical separation of the deceased and the appellant, there had been sufficient torment caused to the mental state of the deceased to have compelled 17 her to commit suicide. That can certainly be construed as instigation and therefore, the prosecution is justified in having brought the charge that the instigation was sufficient to urge that there was abetment in the deceased having committed suicide. The further admitted circumstance that there were attempts at reconciliation in the appellant also having visited the maternal home while the deceased was staying there and through the medium of the uncle of the deceased, talks having been held, would indicate that there were prior discussions in the family and the deceased who had informed her brother, uncle and her mother of the attitude of the appellant over a period of time that she lived with him, can safely be presupposed. The so-called admissions extracted from PW-14, the mother of the deceased to the effect that the deceased had not stated anything about the appellant suspecting the fidelity of the deceased and of having assaulted her or harassed her, by itself does not dislodge the actual circumstance which is sufficiently spoken to by the brother of the deceased as well as 18 the uncle of the deceased. This coupled with P-14, the dying declaration would clinch the case of the prosecution. The contention that P-14 is a got-up document prepared for the convenience of the prosecution and that this is apparent from the circumstance that it is a verbatim replica of the complaint, cannot be construed as being a coincidence. When the sequence of events are narrated either in the complaint or in the dying declaration, the sequence of events cannot vary nor can the fact situation vary. Therefore, the same having been narrated consistently being characterised as a false case said to be made out against the appellant, cannot be accepted. On the other hand, it would only fortify the case of the prosecution that there is consistency between the complaint and the dying declaration. Hence, the learned Additional State Public Prosecutor would contend that the dying declaration being sought to be trashed on that ground is unfair and would lead to a miscarriage of justice.
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Insofar as the certification of the Medical Practitioner to the effect that the deceased was fit to make a declaration, has been substantiated by the Doctor having been examined as a witness and who has reiterated and affirmed that the deceased was in a fit condition to speak. In the cross-examination, the further fact that the deceased was in a position to respond to verbal commands, does not imply that she was not in a position to speak, since in examination-in-chief, the Medical Practitioner has categorically affirmed that the deceased was in a position to speak. Therefore, though the deceased was in a bad state when she was admitted to hospital and when the dying declaration was recorded, the painstaking job of having recorded such a dying declaration by the Taluk Executive Magistrate, possibly on repeated questioning and eliciting answers, cannot be discarded as not tenable. It is further contended that the vehement attack on the validity and correctness of the dying declaration to the effect that the state of mind of the deceased is not ascertained either by the Medical Practitioner or by the 20 Taluk Executive Magistrate, is not a correct statement and it is sought to be pointed out that the Taluk Magistrate who is a responsible officer dealing with a serious situation was clearly aware of his responsibility and has stated in his evidence that he had ascertained the state of mind of the deceased before proceeding to record her statement and that there is no indication that the Taluk Executive Magistrate had the benefit of the text of the complaint when such a statement was recorded to contend that it is a verbatim reproduction of the complaint and hence, he would seek to place reliance on a recent decision of the Supreme Court in the case of Asha Bai vs. State of Maharashtra (2013 (2) SCC 224), wherein the Apex Court has gone to the extent of declaring that there is no particular form or procedure prescribed for recording a dying declaration nor is it required to be recorded only by a Magistrate. Therefore, in the present case on hand, there being a certification by a Medical Practitioner that the deceased was capable of making a declaration and the dying declaration having been recorded by 21 the Taluk Executive Magistrate, cannot be trashed in the manner that the appellant seeks to contend and would also state that both the Medical Practitioner who had certified the state of health and mind of the deceased as well as the Taluk Executive Magistrate, have been examined as witnesses in the case on hand, and who have withstood the test of cross-examination. Therefore, there is no iota of doubt as to the charges having been established by the prosecution against the accused and would submit that the appeal be dismissed.
4. In the light of the above contentions and on an examination of the record, the relationship and the sequence of events insofar as the deceased having left the matrimonial home and having come back to the maternal home and having set herself on fire four days later, is not in serious dispute. What is in dispute, however, is that, there was ill-treatment by the appellant of the deceased, and the ill-treatment was of such a degree that it amounted to instigating the deceased and driving 22 her to commit suicide and thereby indicating that the appellant had committed offences punishable under Section 306 and Section 498-A of the IPC. Insofar as the question of abetment to commit suicide, the definition of abetment under Section 107 would indicate that there would be abetment if a person instigates another to do that thing. In other words, it is to be examined whether the appellant had instigated the deceased to commit suicide. Instigation is again defined as to bring about or initiate or insist upon someone to do something. In the instant case, it is the case of the prosecution that constant accusation and harassment caused by the appellant to the deceased with reference to her chastity or fidelity and doubting her of having had relationships with other men before her marriage was instigation. It certainly is an accusation made against the deceased. Whether in the normal course, any such accusation made would drive a woman to commit suicide, is not capable of being answered in the affirmative, for it would depend on the sensitivity of the woman concerned. If the 23 accusations are true, it is difficult to envisage that a woman would go and commit suicide on account of the same or it may even be that she would be consumed by shame and may commit suicide. Therefore, it is not predictable whether such torments could be characterised as being instigation to commit suicide. The suspicious nature of the man in having accused a newly wedded wife of such a behaviour even if accepted to be true, whether it would instigate the wife to commit suicide, is difficult of prediction. In that, this court would not be in a position to predict that in such a circumstance, it would be sufficient ground for a woman to commit suicide. Hence, the court below having arrived at a conclusion that there was constant harassment and allegation of the deceased being unchaste or having had affairs with other men before her marriage being in the nature of instigation and therefore amounting to abetment to commit suicide, cannot be accepted.
The further question whether there was cruelty inflicted on the deceased of such a nature and to such a degree that it 24 drove the deceased to commit suicide, was again to be established by the prosecution beyond all reasonable doubt. Apart from the evidence of PW-13 and 15 who are the uncle and brother of the deceased, there is no other independent evidence of the allegations of cruelty inflicted by the appellant on the deceased. The only other evidence is the dying declaration as recorded under Exhibit P-14. The question whether Exhibit P-14 should be accepted without any doubt as it is duly certified by a Medical Practitioner to the effect that the deceased was in a position to make a dying declaration and the same having been recorded by the Taluk Executive Magistrate, is a seriously disputed circumstance. While it is pointed out that there are several witnesses including the mother of the deceased, who have declared that the deceased was not at all in a position to speak and she was unconscious after she had set herself on fire till her death while in hospital, the declaration by the Medical Practitioner that she was in a fit state to speak within three hours after she had set herself on fire, while it is 25 not in serious dispute that she had suffered deep burn injuries and the burn injuries were to the extent of 98% of her body, would certainly cast a doubt on the assertion by the Medical Practitioner that she was in a position to make a statement. From the tenor of the statement that is recorded by the Taluk Executive Magistrate and the clarity and cogency of the statement would not indicate that it was made by a person who was suffering 98% burn injuries and was in a traumatic condition. The medical report at that point of time indicated that she had a feeble pulse and there is no indication of her blood pressure and in the face of the evidence of other witnesses that she was not in a position to speak, it is rather difficult for this court to accept that there was a possibility of a lucid interval where the deceased was in a position to make her statement that is as clear and as cogent as the complaint made by her brother.
Therefore, the contention of the learned counsel for the appellant to point out that the similarity of the language, the 26 tenor and the structure of the complaint as well as the dying declaration being almost similar, would cast serious doubt of the statement recorded by the Taluk Executive Magistrate. Significantly, there are no other witnesses to the dying declaration except the Taluk Magistrate. The Medical Practitioner who had certified that she was fit to make such a statement and when the deceased was in such a bad state, it would be expected that the Medical Practitioner and other nursing staff were ready at hand when the dying declaration was recorded and it would have been a simple measure to have obtained their signatures as well. This is not forthcoming.
Therefore, in the opinion of this court, there is a serious doubt of the dying declaration having been made in the manner that it is recorded. The statement is recorded in the third person. In that, the statement is recorded as understood by the Taluk Magistrate and not in the very words of the deceased.
Having regard to the condition of the deceased when the dying declaration was recorded, there would have been at least 27 a few words which were unintelligible and which would have been normally expected to be noted by the Taluk Executive Magistrate. However, there is no such indication of the statement having been made in a laboured fashion, but it is recorded as if there was fluency in thought and statement. This renders the statement of being engineered only to bring home the charges against the appellant. Therefore, the offence punishable under Section 498-A if it is to be proved with reference to Exhibit P-14, it would indeed result in a miscarriage of justice to hold that the same has been established beyond all reasonable doubt, as the evidence of PW-13 and 15 is not consistent with the evidence of PW-14 who is none other than the mother of the deceased. There is no hesitation in this court coming to the conclusion that the prosecution has not established its case beyond all reasonable doubt. Consequently, the findings of the court below that there was abetment by the appellant in the commission of suicide by the deceased and that cruelty was inflicted by the appellant on the deceased of such a 28 degree, as to drive the deceased to commit suicide, cannot also be accepted. Consequently, the appeal is allowed. The judgment of the court below is set aside. The appellant is acquitted.
SD/-
JUDGE KS