Karnataka High Court
Devidas S/O Late Balchandra Rangadal ... vs The State Through Mahila P.S. on 12 October, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA, KALABURAGI
DATED THIS THE 12TH DAY OF OCTOBER, 2018
:PRESENT:
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO.3571/2012
BETWEEN
1. DEVIDAS
S/O LATE BALCHANDRA RANGADAL
AGED 41 YEARS, OCC:BUSINESS
2. DRAUPADIBAI
W/O LATE BALCHANDRA RANGADAL
AGED 41 YEARS, OCC:HOUSEWIFE
3. SAILAJA @ SHAILA
D/O LATE BALCHANDRA RANGADAL
AGED 33 YEARS, OCC:HOUSEHOLD
ALL ARE R/O GANESH MANDIR
SANDAL GALLI, GULBARGA
... APPELLANTS
(BY SRI. M. B. NARGUND, SENIOR COUNSEL FOR
SRI. SANTOSH H. PATIL, ADV. FOR A1 TO A3)
AND
THE STATE THROUGH MAHILA P.S.
GULBARGA ... RESPONDENT
(BY SRI. MALIKARJUN SAHUKAR, LEARNED HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED IN S.C.NO.321/2009 ON THE FILE OF THE IV
ADDL. SESSIONS JUDGE AT GULBARGA, DATED
05.03.2012. CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE P/U/S 302 R/W SEC.34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 30.08.2018 AT
KALABURAGI BENCH COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT, AT PRINCIPAL
BENCH, BENGALURU, THIS DAY K.N. PHANEENDRA, J.
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellants who are arrayed as accused Nos.1, 2 and 5 in SC No.321/2009.
2. Being aggrieved by the judgment of conviction and sentence passed by the IV Addl. Sessions Judge at Gulbarga, vide judgment dated 5.3.2012 in convicting the appellants for the offence punishable under section 302 read with Section 34 of IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.10,000/- each. In default to undergo further imprisonment for five years.
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3. The respondent - Police have filed charge sheet against as many as five accused persons for the offence punishable under Sections 143, 147, 498A, 504, 506, 323, 302 read with Section 149 of IPC.
4. Earlier, during the crime stage, a case was registered u/s.307 of IPC and later, after the death of the victim lady, the case has been converted for the offence under Section 302 of IPC, also.
5. Before adverting to the grounds urged before this court challenging the above said judgment of conviction and sentence, it is just and necessary to bear in mind the brief factual matrix of this case:
A lady by name Smt. Meera (victim) was given in marriage to Accused No.1 Devidas S/o.Balchandra Rangadal, in the year 2000. It is alleged that at the time of marriage, on demand, gold and silver articles and also other house hold articles and dowry have been given to the accused persons and after the marriage, the said Meera started living with her husband in her husband's house at Ganesh Mandir road, Gulblarga. It 4 is the further allegation that, for about 4 years, the husband and wife and other family members lived happily with each other and thereafter, all the accused persons started ill-treating and harassing the said lady even on flimsy reasons that she is not doing the household work properly, not taking care of the children etc., and in this context, the accused persons used to abuse her with filthy language and assault her. In spite of the above said ill-treatment, the deceased Meera tolerated all the ill-treatment and harassment with a fond of hope that the accused may turn green leaf to her life, but in spite of several advise by the elders and her tolerance, they did not desist themselves from ill-
treating and harassing her.
6. In this context, it is further alleged that on 7.3.2009, in the afternoon at about 3.00 p.m., the deceased Meera along with her children Preethi, Swathi and Devraj, were there in the house. As the children were quarreling with each other, Accused No.1 started abusing the deceased that, she has not taken proper care of the children and abused her in filthy language 5 and also assaulted her. Being frustrated with the attitude and continuous ill-treatment and harassment by the accused persons, when accused No.1 went out from the house, the deceased Meera decided to commit suicide by pouring kerosene. When she was about to do that, at that time, accused No.1 and sister-in-law Shaila A-5, in fact came to the house and soaked kerosene on her body and lit fire. She screamed for help. Her naighbours came there and tried to extinguish fire and thereafter, she was shifted to the Hospital. In the Hospital, she survived for some time and thereafter, she died on 8.3.2009 at 8.00 a.m., When she was in the death bed, her dying declaration has also been recorded by the Police as well as the Taluka Executive Magistrate. On the above said allegations that, only due to the ill- treatment and harassment, the deceased died and in fact, the accused persons are the root cause for the death of the deceased and virtually they murdered her. On these allegations, the Police laid the charge sheet against the accused persons.
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7. All the accused persons were arrested and thereafter A2 to A5 were released on bail. Accused No.1 from the date of his arrest has been in Judicial Custody. After securing the presence of accused persons, the trial Court has framed charges against all the accused persons for the above said offences. As the accused pleaded not guilty and they were put on trial. The prosecution in order to prove the guilt of the accused examined as many as 14 witnesses and got marked Exhibits P-1 to P-23 and also got marked Material Objects - MOs.1 to 16. The accused also examined four witnesses on his side as DWs.1 to 4 and got marked Exhibits D-1 to D-14. The accused were also examined u/s.313 of Cr.P.C. by the court.
8. After hearing detail arguments on both sides, the trial Court has come to the conclusion that, only accused Nos.1, 2 & 5 are responsible for the death of the deceased and they have committed the murder of the deceased Meera by pouring kerosene and litting fire on her. Therefore, the trial Court convicted and sentenced the accused Nos.1, 2 & 5 for the offence 7 under Section 302 I.P.C. and acquitted the other accused persons.
9. The learned counsel for the appellants/accused Nos.1, 2 & 5 strenuously contends before this court that, the entire case revolves around the interested testimony of the relatives, kith and kin of the deceased, so far as the offences u/s.498A is concerned. But the court has not convicted the accused for the offence punishable under section 498A of IPC, but only convicted for the offence punishable under section 302 of IPC. The entire case of the prosecution is based on two alleged dying declarations of the deceased. No other worth materials are available to the prosecution.
10. It is also contended that, both the dying declarations are bereft of the requirement of law as well as they are not consistent with each other. The trial Court has not properly appreciated the oral and documentary evidence properly and the evidence of the defence witnesses and the witnesses who have recorded the dying declaration and surrounding circumstances. 8 The dying declaration and the surrounding circumstances does not create any confidence so as to draw any certain inference that, the accused persons are responsible for the death of the deceased and particularly they have committed the murder of the deceased.
11. We would like to consider in detail the arguments of the learned counsel at the time of considering the dying declarations and other evidence which are necessary.
12. Per contra, the learned High Court Government Pleader strenuously contends before this court that, there are two dying declarations of the deceased wherein, she has specifically implicated accused Nos.1, 2 & 5 who are the root cause for the death of the deceased. Even otherwise, the evidence of the relatives of the deceased clearly discloses that there has been consistent ill-treatment and cruelty meted out to the deceased and made her life miserable. Due to the ill-treatment and harassment, the deceased was frustrated in her life, though she also decided to die, 9 taking advantage of that situation, accused Nos.1, 2 & 5 joined together, poured kerosene on her and lit fire on the ill-fated day. The trial Court, after appreciating the entire oral and documentary evidence on record, rightly arrived at a conclusion that, it is a fit case to record the judgment of conviction and sentence and accordingly, recorded the same and sentenced the accused. There is no room to interfere with the judgment and sentence passed by the trial Court.
13. Having heard the arguments of the learned counsel for the appellants and the learned High Court Government Pleader, for the respondent - state, the points that would arise for the consideration of this court are:
(1) Whether the prosecution has proved the guilt of the accused for the offence punishable under section 302 of IPC beyond reasonable doubt?
(2) Whether the trial Court has committed any serious legal or factual error in appreciating the oral and documentary evidence on record and committed an 10 error in convicting and sentencing the accused for the above said offence?
14. In order to appreciate the above said two points formulated by us, it is just and necessary to bear in mind the evidence adduced by the prosecution. We would like to have cursory look at the evidence of the prosecution witnesses and thereafter, we would like to discuss in detail with regard to the relevant circumstances and connecting evidence of the witnesses.
14.(1). PW-1 Yeshwanth is a witness to Exhibit P-1 which is the spot mahazar drawn on 8.3.2009, wherein the Police have seized MOs.1 to 6 i.e., a plastic can, burnt match stick, burnt pieces of green colour saree with yellow spots and one burnt blue coloured pillow and one burnt panty and one burnt company braw. He has supported the case of the prosecution stating that, the Police have conducted the said mahazar in the residential house of the accused at Ganesh Mandir Maktampur, Gulbarga.
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14.(2).PW-2 Vikas is a circumstantial witness who speaks about the incident happened on 7.3.2009. He states that, himself and his brother Vishal were informed by the daughter of the deceased about the incident. They went to the house of the accused No.1 and sprinkled water on the body of the deceased and thereafter shifted the deceased to the Hospital.
14.(3). PW-3 Jyothi is the witness for inquest panchnama Ex.P2. The inquest was held in Basaweshwara Hospital, Gulbarga.
14.(4). PW-4 Ishwar Rao is the father of the deceased who has narrated about the antecedents of the deceased as well as the accused persons and also about the ill-treatment and harassment given to the deceased.
14.(5). PW-5 Kamalabai is the wife of PW-4 Ishwar Rao and mother of the deceased. She also deposed in the similar fashion as spoken to by PW-4.
14.(6). PW-6 Pushpa is the brother's wife of PW-4 Ishwar Rao. She also speak about the harassment and 12 ill-treatment by the accused on the deceased and also about the deceased stating her that, Accused persons poured kerosene on her and lit fire.
14.(7). PW-7 Manjula is the another brother's wife of Ishwar Rao PW-4. She also deposed about the ill-treatment and harassment made by the accused persons.
14.(8). PW-8 Dr. Jagadish, Sr. Specialist in Government Hospital, Gulbarga has conducted the Post Mortem examination on the dead body of the deceased Meera on 8.3.2009 between 1.50 p.m., to 2.50 p.m., and issued Post Mortem report as per Ex.P-6 opining that the deceased died due to deep burn injuries to the extent of 85 to 90%.
14.(9). PW-9 Smt. Shashikala, while working as Tahsildar during that time at Gulbarga, has recorded the dying declaration of the deceased on 7.3.2009 at about10.45 p.m., as per Ex.P-10.
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14.(10). PW-10 Narsagouda, who is also one of the friends of PW-4 Ishwar Rao, is the signatory to Ex.P-7 panchanama.
14.(11). PW-11 Dr. Sudheendra Deshmukh, Casualty Medical Officer of Basaweshwara Hospital, Gulbarga, is the person who gave permission to the Tahsildar PW-9 to record the dying declaration of the deceased by issuing certificate about the fitness of the deceased to give statement as per Ex.P-10B.
14.(12). PW-12 Chitte Venugopal Hegade, while working as Police Inspector, conducted spot mahazar as per Ex.P1 and seized material objects recovered as MOs.1 to 6.
14.(13). PW-13 Hariba, is the ASI who went in search of the accused and found one of the accused by name Girish and apprehended him.
14.(14). PW-14 Smt. Narasabai incharge ASI of Mahila Police Station, Gulbarga has recorded the first information given by the deceased i.e., Ex.P-11 from 10.35 p.m., to 11.35 p.m., on 7.3.2009 and also 14 arrested Accused No.1 Devidas on the same day. The said document Ex.P-11 is also relied upon by the prosecution as dying declaration of the deceased victim.
15. On the basis of the above said evidence of the prosecution witnesses, the prosecution mainly relied upon two dying declarations for the purpose of establishing the death of the deceased as homicidal death and in particular it is a murder committed by accused Nos.1 to 5. On evidence, the court found that accused No.1, 2 and 5 persons are responsible for the death of the deceased. So far as the other witnesses are concerned, though the prosecution relied upon the evidence for the purpose of establishing the offence u/s.498A of IPC i.e., ill-treatment, harassment and cruelty meted out by the accused on the victim, which is the root cause for the commission of the murder of the deceased by the accused persons. Therefore, it is just and necessary to find out from the evidence of the witnesses relevant by virtue of these two dying declarations Exs.P-10 and P-11, whether those two dying declarations are proved in accordance with law 15 and further established beyond reasonable doubt, the complicity of accused Nos.1, 2 and 5 in commission of the murder of the deceased.
16. It is the contention of the learned counsel for the appellants in this regard that both the dying declarations are not consistent with each other. They are containing lot of contradictions and omissions and even the implication of the accused persons is doubtful and even if it is meticulously read, without there being any cross examination, it only creates a serious doubt as to whether the deceased has committed suicide or it is a murder committed by accused Nos.1, 2 and 5. When two views are possible on the basis of the materials on record, the view which is favourable to the accused has to be taken. It is also argued before the court that the spot mahazar and other evidence of the witnesses clearly discloses that on that day, the deceased went inside the room in their house and locked from inside and committed suicide.
17. It is further contended that, is the conspiracy hatched between the kith and kin of the deceased and 16 the Police in order to create these two dying declarations. Time of recording of the dying declaration, language in which the dying declarations were recorded and the mental and physical condition of the deceased at the time of recording of the dying declaration are all doubtful circumstances create serious doubt with regard to the stability of the deceased. Therefore, the learned counsel contends that, those two dying declarations are unworthy for credit and the same cannot be relied upon solely for recording conviction u/s.302 of IPC. The above said material indicates that the deceased might have committed suicide due to her mental ill-health and may be due to other circumstance in the family. When such doubtful circumstance is there, benefit of doubt should be given in favour of the accused.
18. Bearing in mind the above said submissions made by the learned counsel for the appellants, first we would like to refer some of the decisions with reference to the dying declaration as to how the courts have to consider the dying declarations.
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19. In a case reported in (2006) 3 SCC 161 between P.Mani Vs. State of Tamilnadu, wherein the Hon'ble Apex Court has clarified as to how the dying declaration in suspicious circumstances should be taken into consideration to consider whether it is a murder or suicide.
"A. Penal Code, 1860 - S. 302 - Murder or Suicide - Prosecution case of bride burning against appellant - Defence case that deceased was suffering from mental illness and depression and was not on good terms with appellant husband on the belief of his having an affair with another woman and that she committed suicide by locking the doors of the room and pouring kerosene and setting herself on fire - Appellant was neither arrested after the incident even though his name was mentioned in FIR as accused nor did he evade arrest - In fact, appellant had taken part along with others in dousing the flames - He also took deceased to hospital - Though in dying declaration deceased had accused the appellant of having set her on fire, but in view of her mental condition and nature of relationship with appellant, held, there was possibility of her making a false statement -18
Having regard to conduct of appellant and other evidence, held, prosecution has failed to prove guilt of appellant beyond reasonable doubt B. Criminal Trial - Burden of proof - Held, is on the prosecution to prove guilt of accused beyond reasonable doubt - Charge of bride burning - Merely because deceased suffered burn injuries inside the room but her husband though present at home, had not sustained any burn injury, held, burden would not shift on the accused husband having regard to facts of the case - S.106 of Evidence Act not applicable - Evidence Act, 1872, S.106.
C. Evidence Act, 1872 - S.32 - Dying Declaration - Must be wholly reliable - In case of suspicion, court should seek corroboration - If evidence shows that statement of deceased is not wholly true it can be treated only as a piece of evidence but conviction cannot be based solely upon it."
20. In another decision between Kashi Vishwanath Vs. State of Karnataka, reported in (2013) 7 Supreme Court Cases 162 wherein the Hon'ble Apex Court has considered the language in 19 which the dying declaration has to be recorded and how it is to be recorded and how the contents of the dying declaration has to be made understood to the dying person, if the language is different from that of the language in which the dying declaration is recorded. The Hon'ble Apex Court has laid down the following principle:
"A. Evidence Act, 1872 - S.32(1) -
Dying declaration - Reliability - Dying
declarations recorded in language not
spoken/known by deceased - No proof of
proper translation into language in which dying declaration was recorded or of the same having been read over and explained to deceased - Dying declarations were recorded in Kannada - Prosecution failed to explain why Dying declarations were recorded in Kannada, if deceased had no knowledge of Kannada language and could speak only Telugu - It was also not made clear as to who amongst the witnesses who had signed the Dying declarations had knowledge of Telugu and had translated the same into Kannada - It was also not mentioned at the bottom of three Dying declarations that they were read over in Kannada and explained in 20 Telugu and that deceased understood contents of the same - Hence, held, contents of Dying declarations are doubtful as possibility of deceased being influenced by somebody in making dying declarations cannot be ruled out. (Paras 10, 29 and 30)
21. In another ruling reported in (2008) 5 SCC 468 between Amol Singh Vs. State of Madhya Pradesh, the Hon'ble Apex Court has considered when in a given case,, multiple dying declarations are there, how the inconsistencies and discrepancies in the dying declaration play a dominant role, the Hon'ble Apex Court held that -
"A. Evidence Act, 1872 - S.32(1) -
Dying declaration - Evidentiary value -
Multiple dying declarations -
Inconsistencies - Discrepancies in the last dying declaration making if doubtful -
held, it would not be safe to convict the appellant - Penal Code, 1860, Ss. 302 and
34. B. Evidence Act, 1872 - S. 32(1) -
Inconsistencies in multiple dying declarations - duty of court - Nature of 21 inconsistencies in relation to surrounding facts and circumstances has to be examined.
C. Evidence Act, 1872 - S. 32(1) -
Multiple dying declarations - Probe into authenticity by court - Principles, restated."
22. In a decision reported in (2002) 1 SCC 577 between Panchdeo Singh Vs. State of Bihar, wherein the Hon'ble Apex Court has made a thorough observation as to when conviction can solely be based on the dying declaration. It is ultimately held that -
"It is the satisfaction of the court with reference to the dying declaration. The dying declaration must inspire the confidence of the court, if there is infirmity, then the court should normally look for corroboration, though there is no specific format for dying declaration. The reliability of the evidence of the dying declaration should be tested from the surrounding circumstances with reference to the doctors certificate, fitness of the deceased and etc.,"22
In the said case, judicial Magistrate who recorded the dying declaration has deposed before the court that though the doctor was available and present, his certificate had not been obtained and instead, the Magistrate has got himself satisfied that the deceased was in a fit condition on the basis of the fact that the deceased has voluntarily stated her name and full address, the Hon'ble Apex Court has observed that the Magistrate failed to recollect whether the deceased put his signature or not, the court refused to accept such testimony as unsafe and refused to rely upon the dying declarations.
23. In another ruling reported in ILR 2003 KAR 2838 between Shantaram Dattatraye and Others Vs. The State of Karnataka wherein this court has observed that -
"In order to rely upon a dying declaration, the certificate of doctor as to fitness of mind is a rule of caution and not an absolute requirement, but the court should be satisfied that the declarant was in fit state of mind to make the statement.
23Once the court is satisfied that the dying declaration was true and voluntary and not influenced by any extraneous consideration, it can base its conviction without any corroboration."
24. Per contra, learned High Court Government Pleader has relied upon a decision of the Hon'ble Apex Court reported in 2012 1 Crimes 32 between State of Rajasthan Vs. abdul Mannan, wherein the Hon'ble Apex Court has observed that -
"Though some discrepancies or some variations in minor details of the incident, it would not demolish the case of the prosecution unless it affects the core of the prosecution case, unless the discrepancy in the statement of the witnesses or the entire statement of the witnesses is such that it erodes the credibility of the witness himself, it may not be appropriate for the court to completely discard such evidence."
25. Bearing in mind the principles laid down in the above said cases, it is very much clear that, when the prosecution relies upon multiple dying declarations against the accused persons as the dying person is not 24 available for cross examination, with reference to the statement made by the dying person, in the dying declaration, in such an eventuality, the said dying declarations run as an exception to hearsay evidence. Therefore, the court should be very careful cautious and meticulous in considering the dying declarations and the surrounding circumstances to ascertain whether those dying declarations are credible and can be safely relied upon to lay conviction against the accused persons. Therefore, in this background, first we would like to consider the two dying declarations which are recorded in this particular case and relied upon by the prosecution whether they are consistent with each other and trust worthy and credit worthy for acceptance or they only create a serious doubt in the complicity of the accused.
26. First we would like to refer the first dying declaration which is in the nature of a report by the deceased to the Police, later registered as FIR by PW- 14, who recorded the said statement after taking the opinion from Dr.Sudheendra, examined as PW-11. 25
27. First we will take up the evidence of PW-14 and then, we will refer the evidence of PW-11 and other relevant witnesses to ascertain whether Ex.P-11 can be treated as a dying declaration and can be relied upon against the accused persons.
28. Before adverting to the evidence of PWs.14 and 11, it is just and necessary to look into Ex.P-11 itself which is in the nature of FIR and also later treated as dying declaration which is extracted below.
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29. On careful perusal of Ex.P-11, it was recorded by PW-14 on 7.3.2009 between 10.35 p.m., to 11.35 p.m., and thereafter, a case has been registered in Crime No.16/2009. On plain perusal of Ex.P-11, it reveals that, it bears the left thumb impression of the deceased Meera and the signature of the person who recorded the dying declaration and also the certificate 29 issued by the Doctor i.e.,PW-11 Dr. Sudheendra Deshmukh, who has certified that the patient has consciousness at the time of recording of the dying declaration.
30. PW-14 has in fact deposed before the court that on 7.3.2009, he received a phone call at 4.00 p.m., when she was in the Mahila Police Station working as I/c. ASI. Immediately, she went to the Hospital and she made a request to the Doctor to examine the victim to certify that, whether the patient was in fit condition to record her statement. On the same day she made a request to the Tahsildar (Taluka Executive Magistrate) to record the dying declaration of the deceased and thereafter, she recorded the dying declaration between 10.45 to 11.35 p.m., She identified her signature as Ex.P-11(B) and thereafter, she came to the Police Station and registered a case in Crime No.16/2009 and dispatched the FIR to the court as per Ex.P-23. She also stayed in the Hospital itself. She further deposed that, Accused No.1 was present and she arrested him 30 on that day and produced him before the court in accordance with law.
31. Much has been argued taking advantage of some materials in the cross examination that she do not know as to who was actually the treating doctor of the deceased, but she re-iterates in the cross examination that she requested the Doctor Deshmukh and he gave the opinion that, the witness was in a position to give statement. The said Doctor told her at about 6.30 p.m., itself and immediately she recorded the statement. But the records shows that the statement was recorded between 10.30 p.m., to 11.35 p.m., there is some discrepancy with regard to the time at which the dying declaration was recorded. She also stated in the cross examination that, the deceased gave the statement in Marathi language and she recorded the statement in Kannada language, as the witness also knew Marathi language. Therefore, there was no difficulty for her to record Ex.P-11 in Kannada language. However, of course, there is no such endorsement in Ex.P-11 that the witness has given statement and she has recorded 31 in Kannada language. There is some lapse on the part of PW-14 in not recording the same by way of endorsement on Ex.P-11. She has also stated that at about 7-7.15 p.m., Tahsildar also came to that spot. It is suggested that after Tahsildar came to the spot, after detailed deliberation with the parents of the deceased, the statement has been recorded. This also indicates that recording of the statement of the victim is not much in dispute apart from the discrepancies noted above. It is suggested that even at 10.35 to11.35 p.m., the witness was not in a condition to talk, but she re- affirmed that she was in a position to talk and Doctor has certified the same, therefore, she recorded the statement. Except these things, nothing has been elicited so far as Ex.P-11 is concerned from the mouth of this witness.
32. PW-11 Doctor Deshmukh has also examined before the court so far as this aspect is concerned. He has categorically deposed that on 7.3.2009, he was on duty from 9.00 p.m., to 8.00 a.m., on 8.3.2009 the deceased Meera was admitted to the burns ward and 32 the Police came at 10.35 p.m., with a request to record the statement of the deceased and he gave the endorsement of fitness to record the statement of the deceased at 10.45 p.m., he identified his signature in the said statement on Ex.P-11 as Ex-P11A and he also stated that Tahsildar also came to the spot, he also requested this doctor to record the statement of the deceased and he gave the certificate about the mental fitness of the deceased and he identified the second dying declaration as Ex.P-10 and his signature as Ex.P- 10B.
33. It is also argued before the court that the duty of this Doctor was between 9.00 p.m., to 10.00 a.m., on 7.3.2009 and 8.3.2009. The dying declaration was recorded at 10.45 p.m., and how it could be recorded at 10.45 p.m., I do not understand this logic though he has categorically stated that, he was there on duty from 9.00 p.m., therefore, at 10.45 p.m., he was supposed to be present in the Hospital on 7.3.2009. Though PW- 14 Smt. Narsabai, ASI, has stated that she visited the Hospital at 6.30 p.m. and taken the permission of the 33 doctor at 6.30 p.m., and immediately she recorded the statement and also sent requisition to the Tahsildar. But the doctor who was an official witness states in a different manner. There is no reason extracted from him, during the course of cross examination, as to why he should lie before the court. Though there is some discrepancy in the time of language with regard to the recording of the said dying declaration, but as we have said that PWs.14 and 11 are the official witnesses. Though there are some discrepancies, but in recording of the statement is not at all much in dispute because, it is the case of the defence throughout in the cross examination that the said statement was recorded actually with the due deliberation with the relatives of the deceased. Therefore, much importance need not be given so far as the timings are concerned, when the recording of the statement itself is not much in dispute.
34. Again in the course of cross examination, some more discrepancies have has been elicited. It is suggested to the doctor that an expert has to give an opinion as to the mental condition of the patient to give 34 statement, but it is not an obligation on the part of the doctor to secure an expert to ascertain the mental condition of the patient. It is no where suggested that this man was not competent to test the patient with regard to her physical and mental condition. Even an ordinary man can test or by looking at the patient can say whether she is in a position to give statement after putting some preliminary questions to her, satisfying himself that she is in a fit state of condition to give statement. Let us take an illustration: If the victim is not in the Hospital, there is no assistance of any doctor, but the person who records the dying declaration, if he is fully satisfied with regard to the mental and physical status of the victim to give statement and only on satisfaction, if he records the statement even such statement also cannot be disbelieved on the ground that there was no doctors opinion taken. Therefore, it all depends upon the facts and circumstances of each case to be tested by the court, whether such situation was present or not. When the doctor after testing the witness, has categorically satisfied that, the patient was 35 in a fit condition to give statement, there is no reason to disbelieve the said statement of the doctor.
35. Of course, the doctor has stated in his evidence that the Tahsildar has also recorded the statement as per Ex.P-10. The police and the Tahsildar were together on that particular day while recording the statement. Of course, the doctor has stated that, he has no separate endorsement given by him at the request of the Tahsildar and PW-14 with regard to his certification recording the mental and physical status of the victim. Therefore, what emerges from the evidence of the doctor and PW-14 is that the recording of the declaration is not disputed. But it is the allegation that the doctor has not taken so much care to look into the records in order to ascertain the degree of burns sustained by the injured. Of course, the doctor who has conducted the Post Mortem examination of the injured has given the statement before the court i.e., PW-8 that, the deceased had sustained 85-90% burn injuries. Of course, the argument of the learned counsel may be correct that the person who sustains 85% to 90% burn 36 injuries, normally she may not be in a position to give any statement. But as the doctor has stated that the condition of the witness was good but she was unfocussed, nevertheless, the doctor has tested her and given the statement that she was in a fit condition to give statement. Therefore, sustaining of the burn injury to the extent of 85-90%, invariably, the court cannot draw any inference that the witness was not in a position to give any statement. But an expert who was present at the time of recording of the statement, categorically stated that, she was in a fit condition to give the statement and the person who recorded the statement also says before the court that she was in a condition to give statement and thereafter, recorded her statement, and both the witnesses who are present and recorded the statement of the victim, are official witnesses, there is no reason to totally discard their evidence with regard to recording of the statement of the deceased She further suggest to these witnesses was that, the victim's relatives were also present and due to the influence and after due deliberation with 37 them, the statement was recorded. Though it is shown in the evidence the presence of some of the relatives of the victim, but unless it is satisfactorily shown to the court that they were actually influenced, the doctor and the police and the Tahsildar to record the statement mere suggestion cannot take the place of proof or even create a serious suspicion in the conduct of the official witness. Therefore, recording of the dying declaration nor the opinion of the doctor can be doubted, though we may consider the contents of the dying declaration to ascertain whether it is actually a murder or a suicide or whether, second dying declaration can be relied upon for any other purpose, little later.
36. For this, the prosecution has relied upon the evidence of PW-9, the Tahsildar, who recorded the dying declaration and also the evidence of the Dr. Deshmukh, who has in fact certified the document.
37. Before adverting to the evidence of PW-9 Tahsildar and PW-11 doctor who gave the certificate, we feel it is just and necessary to extract the Second dying declaration Ex.P-10 recorded by PW-9 which reads thus: 38
"DYING DECLARATION Dying Declaration of Sri/Smt Meera w/o Devidas Residing at Gulbarga recorded by Sri.V. Shashikala Tahsildar Gulbarga Gulbarga on dated 7.3.2009 on the requisition made by P.S.I. Mahila Police Station Gulbarga his letter No. 16/ C¥ÀtzÀ/ªÀÄ¥À/UÀÄ/2009 Dated 7.3.09 Name of the Declarant : Smt Meera Name of the Father/Husband : Devidas Age : 30 years Occupation : House wife Caste: Bhavsar khsyatriya Ques.1)Are you in a fit state of mind and conscious?
Ans: Yes Ques.2) Are you in a position to speak?
Ans: Bearingly she is talk Ques. 3) Where are you at present? Ans: Hospital Ques. 4)Who brought you here when and by what means?
Ans: Some unknown persons with my Husband and neibours Ques.5) Who were the assailants?
Ans: Herself (toward herself with kerosene) Herself and her sister-in-law(Shaila) Ques6) What are their names and address?
Ans: Shaila stays along with Meera 39 Ques. 7) How do you identify them?
Ans: Sister in Law (Shaila) Ques.8)How did you sustain injuries?
Ans: Kerosene Burn Ques.9) What were the weapons used? Point out their nature Ans: Kerosene, 90% Burn Deep Ques.10) Which is the place of assault?
Ans: In her residence near Ganesh Mandir, Gulbarga Ques.11) Are you in a position to locate the injuries on your body? If so, locate them Ans: 90% Burn Deep Ques.12) How did you sustain injuries and in what matter?
Ans: Burns.
Ques.13) What is the motive for assault? Ans: Frequent Quarrels between in laws (sister in law by named Shaila and mother in law by named Draupadi Bai) Signature/Thumb Impression of the Declarant _________________________ CERTIFICATE I Certify that, the Declarant is read over and explained to the maker in his language and admitted to be correct.
Signature of the person recording the Declaration"
40
38. The learned counsel for the appellants so far as this dying declaration is concerned has strenuously contended that it is in a format and it is not stated as to how the dying declaration was recorded at the same time when Ex.P-11 was recorded by PW-14. There is no justification recorded by PW-9 to record the dying declaration as the document itself shows that the patient was dull and unfocussed either due to sleepiness or drowsiness due to 90% burn injuries sustained by her. The Tahsildar has not stated as to how she could record the dying declaration. There are discrepancies with regard to the recording of the statement in the language known to the deceased. Therefore, the learned counsel submitted that, the said dying declaration is not at all recorded as stated by PW-9.
39. PW-9 is Smt. Shashikala, who was working as Tahsildar at Gulbarga during that relevant point of time. She has stated that, she has received the information from the Police with regard to the victim Meera being admitted to the Hospital with burn injuries. Then, she went to the Hospital at 9.45 p.m., and approached the 41 casuality doctor and the casualty Doctor certified that the victim is in sound state of mind and capable of giving her statement and thereafter, she states that, she has recorded the statement in a prescribed form in her own handwriting in the way of question and answer. Of course, there is some discrepancy with regard to the language in which the witness has given the statement. She says that the victim/deceased was answering to her question in mixed language i.e., in both Hindi and English. Therefore, this witness put to questions in English language and recorded the statement in English language. This discrepancy of course is also available in the evidence of PW-14 and PW-11, who have stated that the witness has given statement in Marati language and the same has been recorded in Kannada. Of course, this discrepancy is not fully clarified by the prosecution. However, as we have said that the recording of the dying declaration is different from the veracity and the contents of the dying declaration. Therefore, we do not want to give much importance so far as this discrepancy is concerned.
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40. PW-9 Tahsildar has further deposed that, she has sent the said dying declaration in a sealed cover to the court. Of course, there is some discrepancy with regard to the sealed cover, because the sealed cover when opened in the court, it was already torn. The learned Sessions Judge has recorded his opinion about this particular aspect. Even in spite of that it will not affect the dying declaration because in spite of such tearing of the cover, in which the dying declaration was sent to the Magistrate, this witness has categorically looked into the dying declaration Ex.P-10 and with all certainty deposed before the court that the said dying declaration was recorded by her. Therefore, much importance need not be given so far as the tearing of the cover in which the dying declaration was sent.
41. She identified her signature at Ex.P-10A. Even in the course of cross examination, much has not been elicited with regard to the contents of the dying declaration or with regard to the recording of the dying declaration except the above said discrepancy regarding language in which the dying declaration was recorded. 43 The dying declaration Ex.P-10 as we have carefully perused of course it is in a format, but there is no hard and fast rule under any law for the time being in force as to in what manner the dying declaration has to be recorded. It is said that the dying declaration is recorded in a question and answer manner which has been done in this case also though the said dying declaration is recorded in a printed format cant be discarded on that ground. It bears the signature of the Doctor Deshmukh, he has stated that, the patient was able to give statement, she has given statement in Kannada and Hindi. But PW-9 has stated that she has given statement in Hindi and English and she recorded the statement in English. Of course, there is some discrepancy with regard to this recording of the statement in the language known to the deceased. Nevertheless, the court cannot draw any inference whether the victim was knowing Marathi, Kannada, Hindi and English language. If the deceased was knowing all these languages, she was at liberty to give her statement in any language known to her. Unless, it 44 is elicited in the course of cross examination that the victim was not knowing all these languages, no fault can be find with the evidence of this witness that deceased has given statement in mixed language such as Hindi, Marathi, Kannada and English. There is not even a suggestion made to that effect.
42. Again, as we have examined carefully, the cross examination of this witness so far as recording of dying declaration is concerned, it is nowhere suggested that the dying declaration was not at all recorded by these witnesses. Of course, as we have mentioned about there is some discrepancy with regard to two aspects. One is regarding the time and also the language of recording of the dying declaration, but when the dying declarations are shown to have been recorded, the minor discrepancies in the above said manner will not affect in any manner, for the acceptance of the dying declaration only with reference to the recording of the dying declaration by PWs.9 & 14. Therefore, we do not find any strong reasons to reject the dying declaration in toto on the ground that the said 45 dying declarations were not at all recorded by PWs.9 &
14.
43. Now, the next question is the contents of the dying declaration whether it is accepted as it is, whether they are consistent and sufficient to hold that the accused persons in any manner committed the murder of the deceased. In that context, the contents of the dying declaration play a dominant role.
44. In the first dying declaration, which is in the nature of First Information Report, it clearly discloses that she has stated about her marriage in the year 2000 and ill-treatment and harassment by the inmates of the house of her husband particularly taunting her and ill- treating her even for flimsy reasons. The reasons stated are that they were taunting her or abusing her that she was not doing household work properly and she was not taking care of the children properly in this regard, they were assaulting her also therefore, she was frustrated in her life and decided to end up her life. In this context, he has stated what exactly happened on the day of the incident that her husband went out from 46 the house on that day, she has decided to end her life by pouring kerosene on herself and lit fire and at that time, her husband A1, and Shailaja A5 her sister-in-law came inside and poured kerosene on her and lit fire absoloutley no allegations against A2 Draupadi Bai is concerned. And thereafter, the neighbors have admitted her to the Hospital. Therefore, she requested the Police to take action. So one thing is very much clear from the statement that she has decided to end up her life by means of pouring kerosene on herself and litting fire. Therefore, it is clear that her intention to end her life in a particular mode also. Though there are allegations against her husband and sister-in-law Shailaja, whether these allegations under Ex.P-11 is consistent with the subsequent statement made by her before the Tahsildar is also another factor which has to be taken very seriously by the court because as noted above in the decisions quoted by us, consistency between the multiple dying declaration is a deciding factor to the court as to whether such dying declaration can be in total relied upon or not?
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45. Ex.P-10 dying declaration as we have already extracted, she has stated to Q.No.4, that she was admitted to the Hospital by her husband and neighbors. Q.No.5 was put to her as to who are all the assailants she has stated that her sister-in-law Shailaja poured kerosene. For Q No.28, as to how she sustained burn injuries, she said that kerosene burns and what was the motive for assault, she answered to Q No.13, frequent quarrel between in-laws and sister-in-law. Except this, nothing has been stated by her that she was actually to end her life by pouring kerosene on herself. But to Q.No.5, she has stated that she poured kerosene on herself and she never stated who lit fire. For the reasons best known to her, excluded even the presence of her husband and mother-in-law at that particular point of time and any active participation of her husband either pouring kerosene or litting fire, who lit fire, is also not stated by her in the second dying declaration. Therefore, we are of the opinion that there is no consistency with regard to the participation of Accused Nos.1, 2 & 5 in pouring kerosene and litting fire 48 to her. Though there is some semblance of material available that Accused No.5 poured kerosene on her. But, in our opinion and in the above said circumstances, it is very difficult to draw an inference that both the dying declarations are consistent with regard to the presence and participation of accused Nos.1, 2 & 5 in pouring kerosene on her and litting fire. Absolutely no implications of A2 in any manner.
46. In this context, the evidence of other witnesses also play a dominant role to decide this particular factor. PW-2 one Mr. Vikas examined by the prosecution itself, has deposed before the court that he knew about the accused persons 1 to 5 because, he is naighbour and the house of accused is situated in front of his house at Maktampur, Gulbarga. He has further deposed that on 7.3.2009, the deceased Meera at 2.30 p.m set herself on fire in the first floor store room of the house of the accused. On the date of the incident at about 2.30 p.m., himself and his cousin Vishal examined as DW-2 were taking lunch, at that time, the daughter of the deceased came running to the house of this 49 witness and informed that, her mother has set fire to herself. After hearing the same, both of them went to the house of the accused. Accused No.1 was also in his house and he was taking lunch. Both this witness and DW2, Accused No.1 went towards store room and broken the door and saw the deceased Meera was burning with fire, they put water on her and wrapped a bed sheet on the body of the deceased and lifted her to the ground floor of the house and there after shifted her to the Hospital. In fact, this witness has not at all treated as hostile by the prosecution in order to elicit the presence of Accused No.1 with the deceased and also that the door was not broke open and that it was already opened and not lached from inside. In order to bring home the case of the defence that, the door was locked from inside, this witness has specifically stated that, the door was broken and thereafter they made entry to the store room. Therefore, according to this witness, he has very categorically stated that they found the victim in the store room in the first floor of 50 the house of the accused. This particular aspect play a dominant role in this particular case.
47. In the course of cross examination, it is further elicited that when they reached the house of the accused and they forcibly pushed the door, it was lached from inside. Therefore, the latch was broken and only then they went into the store room and they further stated that they did not see accused Nos.3 & 4 in the house on that particular day only, they stated the presence of Accused Nos.1 & 5 in the first floor of the said building. He has also stated that the deceased was quarrel some lady and she made lot of quarrels and she used to come out from the house creating scenes etc.,
48. What is evident from the evidence of this witness is that, on that particular day, this witness and DW2 found the deceased inside the store room laching the door from inside and thereafter, this witness DW1 and Accused No.1 forcibly broke open the door which was lached from inside.
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49. The court has to give equal importance to the evidence of the defence witness equally as that of the evidence of the prosecution witnesses. In fact, DW2 Vishal has been examined as a witness by the accused. He also fully supported the evidence of PW-2. He also stated reiterating the facts that on that day, they received the information from the daughter of the deceased and they went to the house of the accused and broke open the door of the store room and poured water on the deceased victim who was on fire and also wrapped her with bed sheet etc., and thereafter, shifted her to the Hospital. In the course of cross examination, it is suggested that by the time, these witnesses had been to the house of the accused No.1, by that time, the accused had already killed the deceased Meera, but the said suggestion has been denied. It is suggested that they did not broke open the door of the store room and tried to rescue the deceased. Very peculiarly enough whatever has been suggested to this witness in the course of cross examination, has not been tried to be elicited from the mouth of PW-2 who is no other than 52 the prosecution witnesses. Therefore, it is clear from the evidence of these two witnesses that on that particular day, the incident happened in the store room in the first floor of the house of the accused and the door of the said room was latched from inside and this witness and accused No.1 broke open the door, by that time, the deceased was burning.
50. In the light of the above said evidence, let us examine the spot mahazar drawn in this particular case by the Police and the evidence of the Investigating Officer, in this regard.
51. Exhibit P-1 discloses that on 8.3.2009 at about 2.30 p.m., the Police have visited the house of the accused and drawn the Mahazar in the presence of the panch witnesses. It is stated that one Vishal (DW2) has shown the place of the incident. The place of incident is shown as the store room and the bed room. The store room was measuring 10' x 15'. In the bed room, the Police have ascertained the kerosene and also the blakish mark on the wall and also found some half torn clothes of the deceased and also one plastic kerosene 53 can and half burnt blouse and other articles of the deceased. Thereafter, they have drawn mahazar in the store room and in the bed room. No where explained either in Ex.P11 or in the evidence of the Investigating Officer as to how the burnt clothes of the deceased came to the bed room when according to the witnesses and the spot mahazar, the incident happened in the store room. The store room was actually shown by the witnesses, to the Police as the place the deceased was found burning.
52. PW-1 Mr. Yeshwanth who is the panch witness to Ex.P-1 has stated that he saw the burnt clothes in the first floor and the said clothes and other things were seized by the Police. But in the examination in chief, he has not stated as to where exactly these clothes and other items were seized under Ex.P1 and he never stated anything about the store room. In the course of cross examination also he has stated that store room was in the first floor of the house. Therefore, it is clear from Ex.P1 also the said incident happened in the first floor in the store room of the house of the accused,, but 54 this Ex.P-1 does not disclose that the Police have meticulously examined the place of incident in order to ascertain whether the door latch of the said house was broken in view of the statement of PW-2 and DWs.2 &
3.
53. The Investigating Officer has not been examined before the court in order to elicit this particular aspect in detail.
54. PW-12 Mr. Chitte Venugopal Rao who is the Investigating Officer partly done the investigation, has stated that, he had actually conducted the spot mahazar as per Ex.P1 by securing the panch witnesses and seized articles Mos.1 to 6. Except that he has not stated anything in the examination in chief that where actually the disputed spot is situated. In the course of cross examination, it is suggested that he came to know during the course of investigation that, some of the witnesses, came to the house of the accused and broke open the door which was locked from inside and tried to extinguish fire. He has also admitted that Vikas and Vishal are the adjacent naighbours of the house and and 55 these two witnesses after hearing the hue and cry from the house of the accused went to the house of the accused and shifted the deceased to the Hospital. In fact, this witness has recorded the statement of these witnesses. But even after going through the statement of these witnesses, he never made any attempts to ascertain whether the said door was latched from inside in order to clear out the doubt whether any of the accused could have committed the murder of the deceased. More over, he has no explanation in his evidence as to why, he has not examined the daughter of the deceased who actually went to the house of PW-2 and informed him that her mother poured kerosene on herself and lit fire and thereafter, these two witnesses went to the house of the accused and broke open the door of the store room and saw the deceased, who was on ablaze. This also creates a serious doubt with regard to the conduct of the Investigating Agency that they have not bestowed their attention meticulously while drawing up the mahazar Ex.P-1.
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55. Mr. Kishanrao, another witness examined as DW-3 is an independent witness and a naighbour, examined before the court, whose house is situated adjacent to the house of the accused bifurcated by a common wall. He has also supported the evidence of PW2 and DW2. He has also stated that on that day, he heard the screaming voice of the deceased from the second floor of the house of the accused. He went to the spot and he saw the room which was latched from inside and some people were trying to broke open the said door and in fact they broke open the door locked from inside and thereafter they brought down the deceased from the said room. Except putting suggestion that the said statement was false, nothing has been elicited from the mouth of this witness. As we have stated that whatever the suggestions made to this witness in the cross examination, has not been even suggested to PW-2.
56. Therefore, looking to the above said facts and circumstances of the case, a serious doubt is created about the presence of accused No.1, 2 and 5 coupled 57 with the intention of the deceased that she actually wanted to commit suicide. A doubt is also created in the evidence of the above said prosecution witness about the presence of any of the accused persons in the store room on that particular day, where the incident happened and also that the prosecution has not come out with a clear story that how and why the evidence of PW-2 has to be disbelieved as we have said that the Investigating Officer has not taken much care while drawing up of the mahazar Ex.P1 with regard to the correct topography of the said room from inside. Therefore, the benefit of all the above said circumstances go to show that it is doubtful that the accused persons have actually poured kerosene and lit fire on the deceased. However, the intention of the deceased as stated in Ex.P11 and also in Ex.P10 that she actually poured kerosene and lit fire clearly indicates that it is not a case of murder, but it is a case of suicide. Therefore, in our opinion, the prosecution has not beyond reasonable doubt established that the accused persons particularly A1, A2 and A5 have 58 committed the murder of the deceased. Even otherwise, there is absolutely no evidence so far as A2 is concerned so as to attract Section 302 of IPC. Therefore, we are of the opinion that the trial Court has committed a serious error in convicting the accused persons for the offence punishable under section 302 of IPC.
57. Now, the next question remains as to why the deceased has committed suicide if at all she has committed suicide by pouring kerosene on herself. What is the reason for that. If at all it is for the reason that only due to the ill-treatment and harassment by the accused persons, whether she was driven to commit suicide. In such an eventuality, the offence can be said to have been committed by the accused u/s.306 of IPC and that they have abated by their conduct to the deceased to commit suicide.
58. In this background, the court has to examine the evidence of the relevant witnesses. Of course, the evidence of the parents of the deceased and the relatives of the deceased i.e., particularly PW4 Ishwar 59 Rao PW5 Smt. Kamala Bai w/o. Ishwar Rao and PW-6 Pushpa, who is the sister of PW-4, PW-7 Manjula who is another reletive of PW-4 i.e., brother's wife have categorically stated in their statement that after the marriage between the accused No.1 and the deceased about 9 years prior to the incident, the husband and wife living together with other accused persons and the accused persons used to took up quarrel for every small matter and abusing her in filthy language and assaulting her on the ground that, she was not taking care of the children and as well as not doing the household work etc., Even for any small mistake of the deceased, the accused used to take it very seriously and used to abuse her.
59. In this regard, PW-4 is also produced some documents i.e., letters to the Police alleged to have been written by the deceased which are marked before the court at Exhibits P3, P4 and P5. Of course, these letters also indicate some harassment by the accused. Though these witnesses have been sufficiently cross examined, nothing more has been elicited except 60 suggesting that, the deceased was mentally ill and she was very sensitive and taking even a small matter very seriously. In this background, the cross examination of these witnesses have to be looked into by the court. It is denied by this witness in the cross examination that her daughter was even before marriage was suffering from mental sickness and she was treated by a Psychiatrist and he did not inform the same to the accused persons. It is admitted by him that house of Accused No.1 is surrounded by neighbors of his own community. It is denied by him that one Dr.Ganathe Naganath, Retd. Psychiatrist has treated the deceased. Though it is denied all these things, he as admitted that once, she accompanied Accused No.1 and taken the deceased to Bengaluru NIMHANS, so that she could lead happy life with accused. It is also admitted that during the visit to NIMHANS Hospital, PWs.4 & 5 both of them have visited ISCON Temple and also gave visit to Art of living centre, Bengaluru. It is also admitted that deceased and A-1 lived happily for four years. Both of them have categorically admitted that whenever any 61 small matter in the house and quarrel took place in the house of Accused No.1, accused No.1 requested these witnesses to go over to Gulbarga and to advice their daughter to live cordially with the members of the house. It is also admitted that the quarrel was mainly because of the maintaining of the house properly and taking care of the children and they were also advising their daughter deceased Meera to adjust herself to the family members of the accused. So far as Exhibits P-3 to P-5 are concerned, alleged to have been written by the deceased. It is stated that after 8 to 10 days after the letters found by them in the house, he has taken those letters to the Police, but the Police did not take his statement at that time of producing the said letters. He also states that he was not knowing about his daughter writing any such letters at any point of time. Therefore, it is suggested that Ex.P-3 to P-5, the letters are not in the handwriting of their daughter and those documents were concocted for the purpose of the case. We do not want to rely upon Exhibits P-3 to P-5 for the simple reason that the handwriting in the said letter have been 62 very categorically denied by the accused persons and the Investigating Officer has not taken any pains to send them to FSL for the purpose of ascertaining the handwriting of the deceased in the said letters. Therefore, much importance need not be given to these letters.
60. Be that as it may, the total case of these witnesses that there was ill-treatment and harassment by the accused persons with regard to the maintenance of the household work and taking care of the children by the deceased. However, all these witnesses have categorically admitted about the deceased was taking treatment for her mental illness. In this context, the evidence of PW-1 also play a dominant role.
61. PW-1 Dr. Ganathe Naganath, Retired Psychiatrist, has admitted that he was treating the deceased during her life time for her mental illness. He has deposed before the court that he has been working as a Senior Psychiatrist in the District Hospital, Gulbarga and he has done his B.Sc., MBBS, DPM in NIMHANS. He has further deposed that the deceased Meera W/o. 63 Accused No.1 Devidas and D/o. PW4 Ishwarlal had been to this witness on several occasions due to the mental illness in order to examine the mental illness of the deceased. He has further stated that the parents of Meera also visited him on several occasions. He used to check up the deceased as an out patient. He in categorically terms stated that the deceased was suffering from Obsessive Compulsive Disorder Psychosis. He explained the characteristics of her mental illness stating that the patients who are suffering from such mental illness, they imagine something and mis-understand the wordings used by others and also they do the same work often and often and they have no capacity to sustain even small quarrels or even small incidents. They also suffer from hallucination, though nobody abuse them, they presume that some persons are abusing them. They normally get anger immediately on suspicion. The doctor also stated that if they are not properly medicated and if they do not take tablets, there are chances of they going to depression and commit injuries to themselves. It is also stated that the 64 deceased was not properly taking tablets and medications. The deceased was telling to the doctor that her mother was telling her not to take medicines regularly. He also found that, the deceased Meera was not taking medicines regularly and it can be controlled on the basis of the medicines and this disease may not be persistent throughout the day. The doctor has in fact admitted the all the said factual aspects.
62. Therefore, it goes without saying that there is no serious dispute that the deceased Meera was suffering from some mental illness. It is also elicited in the course of cross examination that the deceased, her parents were all related to this witness. When such being the case, there is absolutely no reason to disbelieve the evidence of this witness. Therefore, looking to the above said evidence of the parents and the relatives of the deceased coupled with the evidence of DW1, it is clear that the deceased was suffering from some mental illness, which might had caused mental disturbance to her to commit suicide. Therefore, it cannot be said that exclusively due to any ill-treatment 65 and harassment to the accused persons as stated by the kith and kin of the deceased, she might have committed suicide. Therefore, the benefit of doubt has to be given in favour of the accused. Hence, we are of the opinion that on the basis of the above said doubtful circumstances, that the prosecution also not established beyond reasonable doubt before the court that the deceased has committed suicide solely due to the abatement of suicide by the accused persons and due to the misconduct of the accused which had driven her to commit suicide. Hence, offence u/s.306 of IPC also not attracted.
63. Last but not least, there is some material available on record that all was not well in the house of the accused persons. It is the consistent evidence of the prosecution witnesses that the accused persons have been taunting her with abusive words and also assaulting her for the reasons that she was not properly behaving with them and she was not taking care of the house hold work and taking care of the children. This evidence is also supported by the other witnesses 66 including the statement of the deceased in her statement in Ex.P-10 and P-11 which are the dying declarations.
64. As we have narrated that the recording of the dying declaration is not disputed, the contents of the dying declarations so far as the commission of the murder of the deceased cannot be accepted, but the remaining portion with regard to the ill-treatment and harassment can be relied upon by the court with the other supportive evidence before the court. The ill- treatment and harassment was not sufficient to conclude that the deceased has driven to commit suicide, but in our opinion, the mental illness was not only the reason for the deceased to commit suicide. It is evident that whenever a person suffers from mental illness, the other people surrounding her have to take utmost care to safeguard her interest and to see that she should not be aggravated mentally by their conduct. Perhaps, she was suffering from some mental ill-ness, she was also not happy with the accused No.1 as it is evident that there was some quarrel taking place often 67 and often in the house of the accused persons. The neighboring witness have also stated that, she was coming out from the house and creating scene, but the reason is not forthcoming from the evidence of the neighbors, because it goes without saying that the family disputes and quarrels normally takes place within the four corners of the house only. The inmates and the close relatives of the deceased and the accused No.1 particularly husband are the persons who could know about the said circumstance. Therefore, the evidence of the kith and kin and the relatives of the deceased cannot be and should not be easily brushed aside. Therefore, we are of the opinion that the ill-treatment and harassment by the accused persons coupled with the mental illness, the deceased might have frustrated in the life and committed suicide.
65. Under the above said facts and circumstances, on meticulous evaluation of the evidence on record, we are of the opinion that the prosecution was able to show that there was ill-treatment and harassment and cruelty meted out by all the accused persons. In spite of not 68 taking care of the deceased knowing fully well that she was suffering from mental illness and by means of small pin pricks, her mental illness aggravated and driven her to commit suicide. Nevertheless, it can be safely concluded that Accused No.1 who is mainly responsible to take care of her and console her, but failed to take such care, which amounts to cruelty and he who has actually committed the offence u/s.498A of IPC for ill- treatment and harassment that lead to frustrate her life. Therefore, we are of the opinion that the accused No.1 is to be convicted and sentenced for the offence punishable under Section 498A of IPC.
66. There is no specific or special allegations against A-2 and A-5 except an omnibus statement of the witnesses that they were also ill treating and harassing the deceased. The allegations of abusive words are very casual that, deceased was not taking care of children and not doing the house work properly. Therefore, we didn't find very strong and unbeatable evidence against A-2 and A-5 even to convict them for the offence punishable under section 498 A of I.P.C. 69 Therefore, they are entitled for the benefit of above mentioned doubts.
67. Before concluding, we are of the opinion that the Trial Courts actually record the evidence of the witness, that those courts will have the knowledge of the evidence placed before the court with the demeanor of the witness particularly in a case of serious offence where the wrong appreciation of the evidence sends the accused persons behind the gallows for life and they have to spend their entire life behind the bars, in such an eventuality, great responsibility is cast upon the court to meticulously look into the records, voluntarily without being influenced by any of the extraneous or moral circumstances in order to adjudicate the rights of the parties. Whether it is a case for recording conviction or for recording acquittal, it is the duty of the courts to look into the evidence in each and every perspective and find out whether such evidence can be accepted without there being any blemish or doubt in order to draw an inference that the prosecution has proved the case beyond reasonable doubt. Otherwise, the same 70 would amount to miscarriage of justice which exactly happened in this case.
68. The appreciation of evidence must be in such a manner that the court must impartially decide the case irrespective of the nature, status, relationship between the parties. It is the fundamental basic principles of criminal jurisprudence that the court should normally start with the presumption that the accused is innocent and he is not guilty unless the prosecution proves the case beyond reasonable doubt. Whenever the doubt that may arise if it is mere a doubt, it would not be sufficient to topple the entire case of the prosecution. such minor discrepancies can be ignored by the court. Where the doubt created in the entire evidence after appreciation which goes to the root of the prosecution which shakes the very origin of the case and also shakes the basic structure of the case of the prosecution in such an eventuality, the benefit of doubt always should be given to the accused.
69. Further, if two views are possible, the view which is favourable to the accused always should be 71 preferred. This fundamental principles have not been properly taken note of by the Trial Court, but persuaded by the evidence of the close relatives and also the dying declarations, the trial court has wrongly directed itself in convicting the accused persons. The Trial Court has not made any serious attempt to look into the dying declarations contents of the same, the way in which they were recorded and the circumstance in which the incident happened as narrated in the dying declaration.
70. Having said so, with regard to the trial Courts responsibilities, it is also worth to refer here a judgment of this court, where actually, I have authored the judgment reported in ILR 2016 KAR 4896 between Mrs.Sharada Urs. Vs. Bharthi Urs. Rani & Others, wherein this court has elaborately considered the duty of the appellate court at head note 'B' of the said judgment which reads as follows:
"Appeal against judgment and order of acquittal - Duty of the appellate court to make a complete comprehensive appreciation of all vital features of the case 72
- Scrutiny of record with care and caution is paramount - ."
71. All these things therefore forced this court to re-evaluate the evidence on record. Therefore, we are of the opinion that it is a fit case to set right the anomaly committed by the Trial Court. Hence, we proceed to pass the following:
ORDER The Appeal is partly allowed. The judgment of conviction and sentence passed by the Trial Court against accused Nos.1, 2 and 5 for the offence punishable under Section 302 of IPC is hereby set aside.
However, the accused No.1 is convicted for the offence punishable under Section 498A of IPC which is the lesser offence than that of Section 302 and 306 of IPC.
Therefore, even in the absence of framing of any charge by the Trial Court, the accused can be convicted for the said offence. Accused Nos.2 & 5 are acquitted of the charges leveled against them. Their bail bonds shall stand cancelled.
Considering the nature and gravity of the offence, we are of the opinion that accused No.1 shall be 73 sentenced to undergo imprisonment for a period of three years and shall also pay a fine of Rs.10,000/-. In default, to undergo further period of six months simple imprisonment.
The set off is given to the accused u/s.428 of Cr.PC., for the period of punishment or imprisonment already undergone by them. If the accused No.1 has already served the sentence for the offence punishable under Section 498A of IPC, as noted above, accused No.1 shall be released forthwith if he is not required in any other case.
Office is hereby directed to send the copy of this judgment to the concerned jail authorities forthwith to take appropriate steps in this regard.
Sd/-
JUDGE Sd/-
JUDGE PL*