Karnataka High Court
Prakasha vs State By Mahila Police Station on 26 October, 2004
Equivalent citations: 2005CRILJ1106, II(2005)DMC181, ILR2005KAR521, 2005(1)KARLJ347
Author: A.C. Kabbin
Bench: S.R. Bannurmath, A.C. Kabbin
JUDGMENT A.C. Kabbin, J.
1. The accused in S.C. No. 132 of 1997 on the file of the Principal Sessions Judge, Mangalore, has challenged in this appeal, the judgment dated 25-10-2002 by which he was convicted for offences mentioned below and was sentenced to the punishment shown below against each offence:
1. For an offence punishable under Section 302 of the IPC:
Imprisonment for life and to pay a fine of Rs. 1,000/- in default, to undergo simple imprisonment for one month.
2. For an offence punishable under Section 498-A of the IPC:
Rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default, to undergo simple imprisonment for 15 days.
3. For an offence punishable under Section 3 of the Dowry Prohibition Act:
Rigorous imprisonment for five years and fine of Rs. 35,000/-.
4. For an offence punishable under Section 4 of the D.P. Act:
Rigorous imprisonment for 6 months and to pay a fine of Rs. 500/- in default to undergo simple imprisonment for 15 days.
5. For an offence punishable under Section 6 of the D.P. Act:
To undergo rigorous imprisonment for 6 months.
The judgment directed that substantive sentences should run concurrently.
2. The person who is allegedly murdered was Smt. Veena, wife of the < accused. She was brought to City Hospital in Mangalore on the night of 27-10-1996 with severe burn injuries. It is stated that this accused also was taken there with certain injuries to his left hand, left face and left leg. It is contended that Smt. Veena had been taken to Wenlock Hospital, Mangalore in the first instance where she gave a statement to the effect that she sustained burn injuries when she was attempting to light the stove after pumping it, when fire erupted catching her nylon saree and that there was no hand of her husband for the said incident. On the basis of that, no further action was taken by the investigating police officer to do any investigation. A similar statement is stated to have been given by her before the Taluk Executive Magistrate, Mangalore, later in City Hospital. It is stated that, during treatment she told on 29-10-1996 her mother (P.W. 2) and later to her cousin P.W. 9 that, it was her husband who had poured kerosene on her body and had set her on fire, that he had prevented her from coming out of the room by latching the door from outside and that she did not tell this fact earlier since she had been threatened by her husband (the accused/the appellant) that similar fate awaited her daughter if she (Smt. Veena) told the truth. Despite treatment, Smt. Veena did not survive and expired on 30-10-1996. At the time of inquest, a statement was given by Smt. Veena's father (P.W. 1) who alleged dowry harassment by the appellant to his daughter and referred to the statement made by Smt. Veena before her death regarding the act of the accused in setting her on fire. He alleged that the appellant had demanded dowry and had received dowry. On the basis of the said complaint, a case was registered against the accused. The investigation was taken up by the officer in charge of Mahila Police station and after completion of investigation, a charge-sheet was placed against the appellant for offences punishable under Sections 302 and 498-A of the IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.
3. The learned Trial Judge framed a charge against the accused for the above mentioned offences. Later a charge in the alternative for an offence under Section 302 of the IPC was framed charging the accused-appellant for an offence under Section 304-B of the IPC. The accused/appellant denied the charge and claimed to be tried.
4. On behalf of the prosecution, 20 witnesses were examined. The defence taken was that when Smt. Veena (the deceased) was pumping the stove and attempting to ignite the stove, the fire started and since the can containing kerosene kept there accidentally fell down, kerosene spread on the ground intensifying the fire and since the deceased was wearing a nylon saree, the fire which had engulfed her, could not be extinguished despite attempts by the appellant who had come there hearing her screams. In support of his contention, the appellant gave his written statement and also examined two witnesses. The examination of the first defence witness i.e., the brother of the accused, was to show that gas in both cylinders in the house had been exhausted on that day and therefore Smt. Veena attempted to use the pump stove to heat the milk. The second defence witness, Manager of gas agency, was examined to prove the booking of gas cylinder.
5. After hearing the arguments, the learned Sessions Judge rejected the defence theory and held that the circumstances proved beyond reasonable doubt that the accused had committed the murder of his wife, that he had demanded and received dowry and had not returned the dowry. The Trial Court also held that dowry harassment had been proved. Consequently the learned Sessions Judge convicted the appellant for offences punishable under Sections 302 and 498-A of the IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. After hearing the prosecution and the accused, the learned Sessions Judge passed the sentences as stated above. The present appeal is against the said conviction and sentence.
6. Sri C.H. Jadhav, learned Counsel for the appellant submits that the learned Sessions Judge has not taken into consideration two dying declarations which clearly show that the burn injuries sustained by Smt. Veena (the deceased) were accidental and that the circumstantial evidence led by the prosecution being not a complete chain of events proving the guilt of accused, the conviction was not justified.
7. It is not disputed that Smt. Veena had sustained burn injuries in her house (i.e., appellant's house) and despite treatment, she succumbed to those injuries and died on 30-10-1996. The point that has to be therefore considered is as to whether the said injuries had been caused due to the act of the accused in pouring kerosene on her and setting her on fire as contended by the prosecution, or she accidentally caught fire while pumping and igniting the pump stove.
8. Ex. P. 19 is the main document on which reliance has been placed by the learned Counsel for the appellant i.e., a statement stated to have been given by Smt. Veena to the CPI Sri Hariram Bhandari immediately after she was shifted to Wenlock Hospital. In the said document Ex. P. 19, it has been stated that since the cooking gas in the cylinders had been exhausted in the morning (of 27-10-1996), she put kerosene from the can in the stove, pumped it and ignited it, when suddenly the fire from the stove spread due to air gushing up from the stove. The statement says that fire caught her nylon saree and that at that time the can containing kerosene kept by the side of the stove fell down, causing kerosene to spread on the ground and the fire increased. She has further stated therein that at that time her husband (the appellant) who was outside with the child, rushed inside and extinguished the fire. The statement reads that there was no hand of her husband in that fire and that she wanted to be treated in some hospital other than a Government Hospital. It has to be seen whether this particular document can be relied upon.
9. The learned Sessions Judge has taken into consideration all the facts and has rejected the said document as untrustworthy. The theory of the accused is that his wife Smt. Veena was first taken to Wenlock Hospital which is a Government Hospital and thereafter since Smt. Veena insisted that she should be taken to a private hospital, she was moved to City Hospital where she took treatment. There is no material except Ex. P. 19 to show that she was in fact taken to Wenlock Hospital. If she had been taken to Wenlock Hospital, it is unlikely that such a statement would be recorded without first treating her burn injuries. Not only this document Ex. P. 19 has been disowned by the subsequent Investigating Officer, there is absolutely no material to show that the injured was first taken to Wenlock Hospital. An additional factor that has to be taken into consideration is, if ever injured had been taken to Wenlock Hospital, it is unlikely that she would be shifted to City Hospital without any treatment by the doctor and without specific entries in Wenlock Hospital. The entries in the City Hospital show that one Raghunath brought Smt. Veena and the appellant and it does not stand to reason that a person called Raghunath could shift Smt. Veena to City Hospital, if ever she had been admitted by the Police Inspector Sri Hariram Bhandary to Government Hospital i.e., Wenlock Hospital. The incident is stated to have taken place at 8.00 P.M. on 27-10-1996. Smt. Veena is admitted to City Hospital at 9.10 P.M. on the same day. It is an impossibility that she would be taken to Wenlock Hospital, that her statement would be recorded there and that because she expressed a desire to be treated in a private hospital, she was moved before 9.10 P.M. to City Hospital, Mangalore, that too in a medico-legal case. The claim that Ex. P. 19 was recorded in Wenlock Hospital is, therefore, not believable, particularly in view of absence of any endorsement on Ex. P. 19 by any Medical Officer of Wenlock Hospital.
10. As regards the second document, Ex. D. 17, on which reliance has been placed on behalf of the appellant, it is a copy of the second dying declaration. According to the appellant, that was the statement made by the deceased before the Tahsildar. The original document has not been produced on record nor had it been summoned. In fact, the Investigating Officer, P.W. 18 Vimala, woman inspector completely disowns that document and she says in her evidence that Ex. D. 17, copy of dying declaration produced on behalf of the accused, is not the copy given by the police. The said copy shows that the Investigating Officer, P.W. 18 signed on the left side, but P.W. 18 denies that that statement was recorded in her presence. On a careful perusal of the said document Ex. D. 17, it is difficult to accept that document as a genuine document. The signature portion of that document has got black line at its bottom and also on the right side indicating the possibility of that portion containing signature having been affixed and a xerox copy taken. Considering these things, we are of the opinion that Ex. D. 17 is not reliable. The Circle Inspector Bhandaiy, who is stated to have recorded the first dying declaration (Ex. P. 19) and the Tahsildar and Taluk Executive Magistrate, who is stated to have recorded the second dying declaration are no more and the Trial Court was not in a position to verify from them the genuineness of those two documents.
11. Even if the contents of Ex. P. 19 and Ex. D. 17 are taken at their face value, it has to be seen whether the circumstances found on the spot and the evidence on record probabalise the possibility of stove erupting fire and Smt. Veena catching fire due to that. Apparently, the stove in question M.O. 100 is a very old stove and as observed by the learned Trial Judge, it appears to be not a stove in use. Admittedly, there were two cooking gas cylinders in the house of the appellant. The reason assigned on behalf of the appellant, for Smt. Veena resorting to use a stove despite cooking gas connection was that both the gas cylinders had been exhausted and that therefore to heat the milk, Smt. Veena had no alternative but to use the pump stove. In this regard defence has adduced the evidence of two witnesses. D.W. 1-Praveen Kumar is the younger brother of the accused/appellant. He says that the gas cylinder booked on 3-9-1996 was delivered on 4-10-1996. That is the version given by D.W. 2-Satisha, the then Manager of Sheelabhadra Gas Agency, Mangalore. The next booking made was on 10-10-1996, which is confirmed by D.W. 2 and copy of gas card Ex. P. 12. Thereofore, from 10-10-1996, according to the defence, only one gas cylinder was available at home. According to the appellant, by 26-10-1996, that cylinder also became empty and therefore, they had to resort to the use of pump stove M.O. 100.
12. Admittedly, replacement of gas cylinders in that area during that period used to take one month. The booking made on 3-9-1996 had been met with replacement only on 4-10-1996. The next booking made on 10-10-1996 would have taken another month and admittedly, that replacement was made on 13-11-1996, i.e., 17 days after the incident. Though it is contended on behalf of the appellant that by 26-10-1996 the gas cylinder delivered on 4-10-1996 had been exhausted, no convincing evidence has been let in this regard. In fact booking dates as evidenced by copy of gas card Ex. P. 12 nullify the contention of the appellant and show that each cylinder lasted more than a month. The relevant entries in gas card Ex. P. 12 show the following dates:
Booking Date Delivery Date 31-7-1996 23-8-1996 3-9-1996 4-10-1996 10-10-1996 13-11-1996 21-11-1996 10-12-1996 This undoubtedly shows that each gas cylinder lasted not less than a month. In the normal course the consumer of cooking gas would not neglect booking replacement if both cylinders have been exhausted that too in a family having two couples. The next booking on 21-11-1996 indicates that second cylinder had not become empty on 26-10-1996 as contended by the defence. This completely rules out the possibility that the gas cylinder delivered to the appellant's family on 4-10-1996 had been exhausted by 26-10-1996. This completely nullifies the contention of the appellant that because cooking gas had been exhausted, Veena attempted to light the stove to heat the milk.
13. The kerosene stove had been sent for forensic examination and after examination, it is certified that it did not contain any burst marks and that it was intact. The said stove was examined by the learned Trial Judge and she came to the conclusion that, that was a stove which appeared to be not in use. Considering all these positive materials, the contents of Ex. P. 19 and Ex. D. 17 indicating an accidental fire are completely ruled out.
14. The next question is, whether the evidence let in by the prosecution regarding the alleged act of the appellant pouring kerosene on Smt. Veena and setting her on fire can be accepted. In this regard, apart from the dying declaration stated to have been made by Smt. Veena before her mother and her aunt P.W. 9, Baby alias Leelavathi that it was this appellant who poured kerosene on her and set her on fire, the prosecution has adduced evidence of two independent witnesses i.e., P.W. 16-Usha and her husband P.W. 17-Sunil Kumar. That couple was residing in a house just in from of the house of the appellant. According to their version, on that night at about 7.30 P.M. when they were in the house, they heard screaming of a woman from the house of the appellant and that when they rushed there, they saw that Smt. Veena was in the varandah having suffered burn injuries and that the appellant was also there. We do not find any material to discredit the evidence of P.Ws. 16 and 17. They do not say that it was an accidental fire. If it was an accidental fire, they would have certainly stated that Smt. Veena had sustained burn injuries due to the accidental fire that had erupted from the stove.
15. Apart from the oral evidence of P.Ws. 16 and 17 and the dying declaration of the deceased stated to have been made before P.Ws. 2 and 9, there is a very strong circumstance against the appellant which shows that it is a homicidal death. The Doctor P.W. 7-Ramesh Pai, Surgeon, Wenlock Hospital who conducted the post-mortem examination, found smell of kerosene emanating from the body of the deceased. If, as put forth by the appellant, accidental fire that erupted from the stove, had set Smt. Veena on fire, it is not possible that the body would smell of kerosene even after three days. The incident took place on 27-10-1996, whereas the death occurred on 30-10-1996 and the post-mortem was conducted then. If it was an accidental fire, it is highly impossible that the body would smell of kerosene. The learned Counsel for the appellant made a feeble attempt to explain it saying that in his attempt to extinguish the fire, the appellant might have rolled Smt. Veena on the ground in the result the kerosene which had fallen on the ground due to toppling of kerosene can might have percolated her body. This theory is also not possible since if kerosene had fallen on the ground, that would have caught fire and it is not likely that the appellant, in his attempt to extinguish fire on the body of Smt. Veena would roll her on such fire. Besides, in his written statement submitted under Section 313 of the Cr. P.C., nowhere the appellant mentions any such attempt. The smell of kerosene emanating from the body of the deceased is a clear indication that the fire was set only after kerosene was poured on her body.
16. Sri C.H. Jadhav, learned Counsel for the appellant attempted to explain this factor by attributing to kerosene that had spread on the floor due to the toppling of kerosene can. Not only there is any evidence to substantiate it, but the police, who conducted spot mahazar Ex. P. 13 were not shown any such can.
17. Taking into consideration the fact that except the deceased and the appellant, no other person was in the house at that time, and there being absolutely no averment that it was a case of suicide, the only other conclusion that one can draw is that it was this appellant who set his wife Veena on fire after pouring kerosene on her.
18. Certain decisions have been referred to by the learned Counsel for the appellant with regard to the contention of the appellant that the dying declaration ought to have been accepted by the learned Sessions Judge. The first decision referred to by him is in the case of Ameerjan v. State of Karnataka, . In that, under the facts and circumstances of the case, this Court has held that a dying declaration is acceptable though not accompanied by the certificate by the Medical Officer. The other decision relied upon by the learned Counsel for the appellant is in the case of State of Uttar Pradesh v. Rakesh and Ors., 2001(3) Crimes 166 (SC), wherein under the facts and circumstances of the case, the Court accepted two dying declarations. In the present case, the conclusion of the learned Sessions Judge and also of this Court is not that because the Medical Officer had not certified the dying declaration, it should not be accepted, but that the circumstances showed that no such dying declaration could have been recorded and the materials contained in such dying declarations are not supported by the positive evidence on record.
19. Sri C.H. Jadhav, learned Counsel for the appellant submits that defects in investigation accrue to the benefit of the accused and that therefore, if the Court is of the opinion that investigation is faulty, benefit of doubt may be given to the accused. He submits that the charge has to be proved by the prosecution and the accused need not prove his innocence. The Supreme Court has observed in the case of Allarakha K. Mansuri v. State of Gujarat, , that the defective investigation itself cannot be a ground for acquittal. Similar view has been expressed in another decision i.e., in the case of Aravind Singh v. State of Bihar, . In the present case though we find that the first Investigating Officer Sri Hariram Bhandari had attempted to close the matter unjustifiably, subsequent Investigating Officers have properly done the investigation and therefore we do not find that there is any such defect in the investigation which can accrue to the benefit of the accused.
20. As regards the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, the evidence of P.Ws. 1, 2, 4, 5 and 8 is consistent and they say that the accused demanded dowry of Rs. 30,000/- and 30 sovereigns of gold and that an amount of Rs. 30,000/- was given initially and Rs. 20,000/- was paid later. There is also evidence to show that subsequently also the appellant demanded an amount and an of Rs. 15,000/- was paid by the grandfather of the deceased.
21. Sri C.H. Jadhav, learned Counsel for the appellant places reliance on the admission of P.W. 1 in the cross-examination that the amount he had given was for expenses. The certified copy of the deposition of P.W. 1 shows that the original deposition of P.W. 1 in the file reads as under:
"It is not correct to suggest that both myself and my wife had come together when we heard about the injuries to my daughter, we did not give that amount by way of dowry, I only gave that amount for expenses".
22. The certified copy of the deposition of P.W. 1 furnished by the appellant shows a fall stop after the words "we did not give that amount by way of dowry". Therefore, it is argued by the learned Counsel for the appellant that this clearly shows that the amount that had been given was for expenses of the marriage. We are doubtful as to correctness of the copy given to the accused. Even otherwise also, the definition of dowry would cover this amount also since this was consideration for the marriage and therefore we do not find any substance in the contention of the appellant that there was no demand for dowry. As observed above, evidence of P.Ws. 1, 2, 4, 5 and 9 is consistent and we do not find material on the basis of which we can disagree with the conclusion arrived at by the learned Sessions Judge.
23. A disturbing factor noticed by us is utter insensitivity of Sri Hariram Bhandary, Circle Inspector of Police in verifying the matter, when he shifted Smt. Veena to the hospital. His responsibility in such matter did not end merely because an injured housewife in her statement exhonerated her husband of any involvement in fire. It was his duty to have verified about the possibility of any foul-play in the incident. The papers show not only his inaction for four days from the date of incident, but the possibility of creation of a dying declaration Ex. P. 19. Unfortunately he is no more and we refrain from making any further comment on the matter.
24. High Courts and the Supreme Court have, on many occasions, called for vigilance in bride burning cases and have stressed the need for immediate verification by Investigating Officers about the circumstances leading to a woman suffering burn injuries within a few years of her marriage. Experience has shown that in many bride burning cases, despite the agony suffered by them, injured housewives tend to defend their husbands and in some cases are afraid of telling the truth in the presence of the husband or of his close relatives. If the Investigating Office r, immediately after he takes steps to get medical attention to the injured person, goes to the spot and conducts a panchanama at the place of incident showing materials found at the place, particularly with regard to the incident, that riot only furnishes a valuable evidence for the prosecution, but brings out the truth. That will be useful to the accused also, since the facts existing and found at the time of panchanama may rule out the possibility of foul-play, if he is innocent. It is desirable that along with panchanama, photographs of the scene of offences from all angles are also taken. In a case of a housewife sustaining burn injuries by eruption of a flame from a stove, the existence of the stove, its conditions, scattered articles, burn marks, nature of injuries found on the injured person, nature of injuries suffered by the person, who claims to have attempted to extinguish fire, all will be relevant to find out the truth. The Home Department of the Karnataka Government is, therefore, directed to frame suitable guidelines in this regard in rules governing the procedure for investigation of bride burning cases.
25. In the present case, not only the nature of injuries suffered by the victim Smt. Veena and kerosene smell emanating from her body indicate ghastly act of the appellant, but minor injuries suffered by him on left profile of his body rule out the possibility of he having attempted to extinguish fire on his wife. That in fact fortifies the allegation of the prosecution that he attempted to drive away his burning wife.
26. Sri C.H. Jadhav, learned Counsel for the appellant attempted to explain minor burn injuries on the appellant stating that the appellant sustained those injuries when he attempted to douse the fire on Smt. Veena's body by a gunny bag held by his right hand. It may be observed that a person extinguishing the fire with a gunny bag on his right hand would not keep his right profile away from fire, and either his front profile or right profile will be facing the fire. In that event, he may sustain burn injuries on his right profile or on his front profile. This also nullifies defence theory of the appellant going to the rescue of his burning wife. Seeing from any angle, we do not find any material to disagree with the conclusions arrived at by the learned Sessions Judge.
27. For the above said reasons, the judgment convicting the accused/appellant for the offences for which he had been charged has to be confirmed and the appeal is dismissed.