Karnataka High Court
State Of Karnataka vs Smt. Neelawwa on 6 February, 2002
Equivalent citations: 2002CRILJ3981, 2003(2)KARLJ511, 2002 CRI. L. J. 3981, 2002 AIR - KANT. H. C. R. 2296, (2003) 2 KANT LJ 511, (2003) 1 ALLCRILR 191
Author: N.K. Patil
Bench: N.K. Patil
JUDGMENT M.F. Saldanha, J.
1. This is one more unfortunate case where the allegation is of wife burning but unlike all the other prosecutions, the accused before us is the mother-in-law of the deceased Parawwa. The case raises a slightly different aspect of the law with regard to the appreciation of a dying declaration as we shall presently point out, but the prosecution had alleged that Parawwa was married on 8-6-1991 to Gangappa and there is the usual allegation that a certain amount of cash and gold by way of dowry had changed hands. The incident in question took place on 13-3-1992 i.e., about nine months after the couple were married and it is alleged that the accused who is the mother-in-law and her two daughters were repeatedly harassing and torturing Parawwa as they were demanding another amount of Rs. 10,000/- and four tolas of gold by way of further dowry. On 13-3-1992 a commotion took place at the house at about 5 A.M. and the neighbours and other persons rushed there only to find that Parawwa's clothes were on fire. The accused and others are supposed to have put off the flames and taken her to hospital and the cause of the burning as initially disclosed by Parawwa was that it was an accident. The statement or dying declaration of Parawwa which is Ex. P. 16 was recorded at about 11.30 A.M. on the same day and considering the fact that she had sustained 96% to 98% burns, it is not surprising that she died on the same evening. In the dying declaration Parawwa had implicated her mother-in-law and her version was that the accused along with her two daughters had physically dragged her to the bathroom, that they had overpowered her, doused her clothes in kerosene and set fire to the same. The daughters being juveniles were not arraigned as accused in the present prosecution but the mother-in-law was arrested and charge-sheeted for having committed offences punishable under Sections 498-A and 302 of the IPC. The learned Trial Judge after a detailed analysis of the evidence recorded an order of acquittal and the present appeal is directed by the State against that order. Since the accused was not represented, learned Advocate Smt. Sharada Havanur was appointed as Amicus Curiae. Unfortunately, the said Advocate has remained absent but, the learned State Public Prosecutor has done a very thorough job in taking us through the whole of the record in the course of his submissions. We have had occasion to review the record and to reconsider the judgment and we need to briefly indicate below our reasons for having arrived at the conclusion that this is not a case that calls for interference.
2. The evidence in this case essentially falls into three groups. The first of them is with regard to the parents and relations of the deceased Parawwa who allege that they were made to pay a dowry consisting of a certain amount of cash and ornaments and it is on this basis that the additional charge under Sections 3 and 4 of the Dowry Prohibition Act has been framed. While it is true that the learned State Public Prosecutor has submitted that the Courts will have to take judicial notice of the fact that there is no matrimonial alliance where demands are not made and where money, ornaments and property do not pass hands and that consequently, the learned Trial Judge was in error in having disregarded the clear evidence which unequivocally indicated that cash of Rs. 15,000/- and four tolas of gold by way of dowry were extorted from the girl's parents; he has relied on the fact that the girl's father who is P.W. 6 has also referred to this fact and it is his submission that only because these persons had not lodged any police complaint with regard to the subsequent demand of Rs. 10,000/- and four tolas of gold that the whole of the evidence has been discarded and it is his submission that in cases where additional demands are made and the parents cannot meet them, that they would be very fearful of bringing the police authorities into the picture. This would virtually bring an end to the marriage. The submission is that in the absence of this evidence having been broken down in cross-examination and in the absence of the defence establishing that these persons are unworthy of credibility that a conviction under Sections 3 and 4 of the Dowry Prohibition Act as also under Section 498-A of the IPC is called for because they have deposed to the fact that Parawwa had complained to them that she was being harassed and tortured in order to secure considerable economic benefit.
3. We do see considerable justification in the submissions that have been canvassed and we have very carefully gone through the reasoning and findings of the Trial Court as far as these charges are concerned. The learned Judge has found that these are an obvious afterthought for a variety of reasons and having regard to the very low credibility levels that have emerged in the course of the evidence of these witnesses, the Court has almost recorded a finding that the subsequent allegations border on fabrication. Several reasons have been set out, the principal one being that there was total non-action on the part of the parents and while we do concede that the learned State Public Prosecutor is perhaps right when he points out that delicate family disputes if taken to the police authorities would lead to a total blast up of the marriage, we are equally aware of the fact that there are many other channels such as the Village Panchayat, elders of the family on both sides and other well-wishers and the fact that there was total silence on the part of the parents in respect of these heads of charge does give rise to a great suspicion with regard to the credibility. It is only on this ground that the accused has got the benefit of doubt and having regard to the quality of the evidence we see no ground on which one can interfere with that finding. The order of acquittal under these heads of charge is therefore confirmed.
4. The second head of evidence centres round the main charge of murder and as far as this is concerned, the learned Trial Judge has found that the prosecution evidence itself runs contrary to its case. As many as four of the prosecution witnesses who are P.Ws. 2, 3, 4 and 5 and who incidentally happen to be independent persons since they live in the same locality have come out with an identical version which is to the effect that when they rushed there, they found that Parawwa had locked herself inside the bathroom and that they had to break open the door in order to rescue her. If it were the accused and others who set her on fire, then it would have been impossible for the door to be locked from inside and this circumstance would totally destroy the prosecution case that it was the accused and others who set her on fire. One of the witnesses has even stated that the reason for Parawwa's frustration was because the doctor had informed her that she is not capable of conceiving a child. One needs to take note of the fact that close to a year had elapsed since the marriage and in those circles as is customary, by that time the bride would have made her way back to her parents house for the delivery of her child whereas there was no signs of any pregnancy and this is a ground on which one cannot totally exclude for desperation or even suicide. Unfortunately, we do not have on record any reliable and acceptable evidence from which this Court can conclude that Parawwa was pushed to suicide by the accused or her family members or the husband. Consequently, this head of evidence is more compatible with an order of acquittal and would certainly not support a conviction.
5. We now come to the most important head of evidence namely, the dying declaration, Ex. P. 16, which is alleged to have been recorded by P.W. 21 who is the Probationary Assistant Commissioner, Belgaum. This dying declaration has been recorded in question and answer form and it certainly implicates the accused. There is also a certificate on it from the doctor, P.W. 9 and consequently, in keeping with the law the learned Additional State Public Prosecutor submitted that this document alone is sufficient to sustain a conviction as this is not a case in which there is any allegation that the deceased could have been tutored or instigated to falsely implicate the accused. Even though her uncle, P.W. 8, claims to have been at the hospital all the time, there is no allegation that he had instigated her and consequently, the learned Counsel for the appellants submitted that this evidence alone is sufficient to sustain a conviction. We are conscious of the fact that the Supreme Court has held in more than one case that if the dying declaration is 100% reliable and acceptable that it can form the sole basis to a conviction. Having regard to this position, we have proceeded to examine the grounds on which the dying declaration has not been relied upon by the Trial Court. Firstly, from the evidence on record itself the learned Trial Judge has recorded the conclusion that there is some dispute with regard to the question as to who exactly recorded the dying declaration. We have perused the evidence and unfortunately we are left with no option except to hold that there is some level of ambiguity with regard to which officer precisely recorded the dying declaration. The situation gets further compounded because of the fact that the doctor's certificate does not indicate what the law really requires from a medical certificate on a dying declaration insofar as it is not only the question as to whether the patient was conscious and in a position to speak but more importantly whether the mental and physical condition of the patient was such that she was able of understanding questions, comprehend them, realise their implications and give rational and correct answers. We emphasise this last aspect of the law because the certificate from a doctor is crucial insofar as the Court is required to be satisfied that even though the victim was alive that the victim was in a fit condition to reproduce what precisely happened. In this case we are required to take note of certain crucial aspects, the first of them being that the victim had sustained 96% to 98% burns which is far higher and more intense than most burning cases. Secondly, the record indicates that she was given the customary treatments when she was brought to the hospital which includes sedatives and pain-killers. The third and most important aspect is that she died the same evening and it is from a combination of these factors quite apart from what the doctor has opined, that the Court will have to make an independent judgment as to whether the victim was in a physically and mentally fit condition to understand questions put and to give a correct and unbiased account of how she sustained the burn injuries. The learned Trial Judge is right when he has held that the certificate was an incomplete one because the doctor has only certified that the statement was recorded in his presence but he has not categorically amplified the main requirements of the certificate regarding the fitness of the victim. It is for this reason that the learned Trial Judge has held that the dying declaration cannot be acted upon. One of the additional reasons is because the evidence of the four witnesses which we have referred to earlier runs directly contrary to the allegations in the dying declaration.
6. We need to highlight one other very important aspect of the law relating to dying declarations in this class of cases namely, that the sequence is well-defined insofar as whether the burns are relatively severe as invariably happens and with the limited medical facilities and the very poor levels of care that these victims receive in the Government Hospitals, death is an inevitable result, The horrifying and agonising pain and trauma can only be reduced by heavily sedating the victim which is the first thing that is done. At the same time, because of the exposure to the air and several other factors the infections rapidly build up, septicemia develops and the onset of death is a matter of time. In this background, it is undoubtedly a little difficult for the authorities to choose the most appropriate time when the statement or dying declaration can be recorded but having regard to the fact that the victim is steadily going downhill, we are of the view that the dying declaration must be recorded as quickly as possible after the victim has reached the hospital, without any time being lost as the condition rapidly deteriorates with the onset of time. One of the obvious factors which the Courts took at is the question as to how much time elapsed between the stage when the statement was recorded and the victim died and the closer the point of time to the death, the greater the possibility of the condition of the victim having been unsuitable. The Courts have been required to give the investigating authorities numerous guidelines from time to time and as far as this class of cases are concerned which are only on the increase. Since the dying declaration is the most important piece of evidence, we need to further reiterate once more that in the first instance all the doctors in the Government Hospitals need to be cautioned with regard to the recording of the cause of the burn injuries. Much is made of the initial entry in the medico-legal register and this is a point of time when the victim has not received any medication and it emerges in the majority of cases that the doctors ask the relatives or others who have brought the victim as to what was the cause and record it. This is a wrong practice and impermissible and it is very necessary that hereinafter in every such case the doctor shall certify that the victim was personally asked that too independently of all those accompanying her and that the correct answers given find their place in the medico-legal register. This is important because irrespective of the fact that the husband or the relatives may have been the cause for the incident, it is they who take the victim to the hospital and fortify their defence by stating the usual story about the accidents and stove bursts.
7. As far as the doctors are concerned, this Court has warned the doctors times without number that they are required to certify responsibly on the basis of a physical examination of the patient that she was in a physically and mentally fit condition to understand and grasp the questions put and to comprehend them and to give cogent answers to these questions. It would also be useful for the authorities to ensure having regard to the condition of the victim and the purity of the investigation that the usual practice of allowing friends and relatives to hover around the victim should be discontinued because apart from the damage to the investigation it is also dangerous for the victim from the point of view of infection and it would therefore be necessary to isolate the victim from all these persons at least until the statement has been recorded. Thirdly, we direct that necessary steps be taken to ensure that the statements are properly and correctly taken down but the most important aspect being that this process is undertaken with utmost speed at the earliest point of time when the condition of the victim is at its best. We have noticed that for no valid reason there is often a long delay in recording the statement as a result of which the quality of the investigation suffers and the evidentiary value gets watered down.
8. In totality, having very carefully reappraised the entire record and evaluated it from the point of view of the well-defined principles of appreciation of evidence in our considered view, the findings recorded by the Trial Court do not require any interference with. Consequently, the appeal fails and stands dismissed.
9. Having regard to the importance of observing and adhering to the guidelines indicated by us in this judgment with regard to the dying declarations, we direct that the Registrar General shall send a copy of this judgment to the Director General of Police who shall ensure that the directions are communicated to all the investigating authorities in the State with a clear warning that stringent action will be taken against any Investigating Officer who does not adhere to them. Identically, a copy be forwarded to the Secretary to Government, Health Department, who shall similarly communicate the directions to the Government Hospitals again bringing it to their notice that if the Courts come across a single instance wherein a contemporaneous certificate is not endorsed on the dying declaration itself by the doctor and the guidelines indicated at the end of this judgment are not observed that the Courts will not hesitate in taking action against the persons responsible as these are the lapses that are contributing to acquittals in this class of cases and lead to the unfortunate impression that wife burning can be resorted to with impunity. Lastly, the Director General of Police shall also while communicating the guidelines to the police authorities bring it to their notice that the time factor indicated by this Court in relation to the recording of the dying declaration namely, that it will have to be recorded post-haste and at the earliest point of time will have to be stringently observed failing which, the Investigating Officer concerned will be open to disciplinary action.
10. We are pained at the fact that the percentage of acquittal rates in dowry death and wife burning cases is still hovering in the high nineties in the State and it will be very necessary to ensure that the lacunae that are contributable to this unsatisfactory state of affairs will have to be rectified.