Karnataka High Court
The State Of Karnataka vs Kishore S/O Shivaji Rao Rajolli on 16 December, 2021
Bench: R.Devdas, Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16 TH DAY OF DECEMBER 2021
PRESENT
THE HON'BLE MR.JUSTICE R. DEVDAS
AND
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No. 3573/2013
BETWEEN:
The State of Karnataka
Through Konchavaram Police Station,
Rep. by its Addl.State Public Prosecutor.
... Appellant
(By Sri.Prakash Yeli, Additional SPP)
AND:
Kishore S/o: Shivaji Rao Rajolli,
Age: 27 Years, Occ: Driver,
R/o; Jilwarsha, Tq; Chincholi,
Dist: Gulbarga. ......Respondent
(By Smt.Anuradha M.Desai, Advocate)
This Criminal Appeal is filed under Section 378(1) &
(3) of Cr.P.C. by the State Public Prosecutor praying to
grant leave to appeal against the judgment and order
dated 04.01.2013 passed by the I Addl. Sessions Judge,
Gulbarga in S.C.No.279/2010 thereby acquitting the
respondent for the offences punishable under Sections
498-A, 302, 504 & 506 of IPC and under Sections 3 & 4 of
Dowry Prohibition Act, set aside the aforesaid judgment
and order of acquittal and etc.
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This Criminal Appeal having been heard and reserved
for Judgment on 03.12.2021, coming on for
'Pronouncement of Judgment' this day, Rajendra
Badamikar, J., delivered the following:
JUDGMENT
This appeal is filed by the State challenging the judgment of acquittal dated 04.01.2013 passed in S.C No. 279/2010 by the I Addl. Sessions Judge, Gulbarga, whereby the learned Sessions Judge has acquitted the accused/respondent herein for the offences punishable under Sections 498-A, 302, 504 & 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act.
2. The brief facts leading to the case are that, the accused is the husband of deceased Shilpa. That the marriage of deceased and accused-respondent was performed one year prior to her death and during the marriage one tola gold and amount of Rs.50,000/- was given to accused as gift. That the accused was 3 working as car driver at Hyderabad and after the marriage the deceased went to the house of her husband situated in Jilwarsha village and she was staying there along with her husband and her mother- in-law. Few days after the marriage, the accused started suspecting her fidelity and she has also brought it to the notice of her mother. The accused had sold the gold and spent the cash given in the marriage to meet his bad vices. That three months prior to the incident, the accused returned to Jilwarsha village from Hyderabad and started staying there itself. He used to ill-treat the deceased with a demand to bring money from her parents house. It is also the case of the prosecution that on one occasion an amount of Rs.7,000/- was paid, which was also spent by accused to meet his bad vices. It is alleged that on 02.05.2010, afternoon the accused and deceased were in the house and accused started 4 abusing the deceased in filthy language with a demand to bring money from her parents house. When the deceased asked the accused not to abuse her, the accused suddenly took kerosene oil can lying nearby and poured kerosene on her body and ignited a match stick and set her on fire. Then the deceased came out of the house crying and it was raining at that time. The incident occurred between 2.00 to 2.30 p.m. and then the accused along with Kamalabai took her to Konchavaram Hospital in an ambulance. It is also alleged by the prosecution that on the way to the hospital, the accused asked the deceased to give statement before the doctor that she caught fire accidentally while she was filling kerosene in chimney, failing which, she will not be admitted in the hospital for treatment. Accordingly, in the hospital, she has given statement before the concerned doctor and police. Later on, in the evening she was shifted to 5 District Hospital, Bidar and MLC was sent to District Hospital, wherein the then Executive Magistrate visited the spot and recorded her statement. In the statement the accused was implicated alleging that he set her on fire. Later on, the SHO has also visited the hospital and recorded the statement of deceased and registered it as complaint. On the basis of the said complainant, the case was registered in Konchavaram Police Station in Crime No.27/2010, for the offences punishable under Sections 498-A, 307, 504 and 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act. During the treatment, on 25.10.2010, the injured Shilpa succumbed in the hospital because of the injuries suffered by her while undergoing treatment in the Government Hospital. Then, the Investigating Officer has submitted requisition to incorporate the offence punishable under Section 304-B of IPC and subsequently after completing the investigation, 6 charge sheet came to be submitted for the offence punishable under Sections 498-A, 302, 504 and 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act. The accused was arrested on 05.05.2010 and remanded to judicial custody.
3. After submission of the charge sheet, the learned Magistrate has taken cognizance and he has also furnished the copies of the prosecution papers to the counsel appearing for accused under Section 207 of Cr.P.C. Then, he has committed the matter to the Sessions Court by exercising his powers under Section 209 of Cr.P.C., and matter was placed before the I Addl. District and Sessions Judge, Gulbarga. The matter came to be registered in S.C.No.279/2010 on the file of the I Addl. Sessions Court, Gulbarga.
4. The learned Sessions Judge, after hearing the prosecution and the defence counsel, has framed 7 the charges under Sections 498-A, 302, 504 and 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act. Accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of accused, the prosecution has examined in all 30 witnesses as PWs.1 to 30 and also placed reliance on 16 documents marked at Exs.P1 to 16. Further, MOs.1 to 28 were also marked for prosecution. After completion of the evidence of prosecution, the statement of accused under Section 313 of Cr.P.C., is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused was of total denial. However, he has got examined DW.1-Dr.Shivasharanappa, who first attended on the victim in Konchavaram Community Health Centre and in whose presence, DW.2 who is head constable has recorded first dying 8 declaration of the victim. The defence has also got marked in all 5 documents at Exs.D1 to D5.
6. After hearing the arguments, the learned Sessions Judge by his judgment dated 04.01.2013, found that the prosecution has failed to bring home the guilt of accused beyond all reasonable doubt and as such acquitted the accused-respondent.
7. Being aggrieved by this judgment of acquittal, the State has filed this appeal under Section 378(1) and (3) of Cr.P.C.
8. Heard the arguments advanced by the Addl. State Public Prosecutor (for short, 'Addl. SPP') and the defence counsel at length. We have also perused the impugned judgment as well as the documentary evidence placed before us in the form of the records of trial Court.
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9. Now, the following point would arise for our consideration:-
(a) Whether the judgment of acquittal passed by the trial Court is erroneous, illegal, arbitrary and capricious so as to call for interference by this Court?
10. To prove the guilt of the accused, the prosecution has examined in all 30 witnesses. PW.1, Secretary of Gram Panchayat, who has issued khata extract as per Ex.P1. PW.2, is the police constable, who has produced Mos.1 and 2 before the FSL Bengaluru. PWs.3 and 4 are the panch witnesses for Ex.P2-seizure panchanama pursuant to seizure of Mos.3 to 28 and other household articles from the house of accused. PWs.5 and 11 are the panch witnesses for Ex.P3-scene of offence mahazar. While PWs.6 and 8 are the inquest mahazar witnesses. Though PW.7, is claimed to be an eyewitness, the 10 evidence disclose that he is not an eyewitness. PW.9, is an Engineer, who has drawn sketch of the scene of offence as per Ex.P5. While, PW.10 is the medical officer who conducted post mortem on the dead body as per Ex.P6. PW.12 is brother PW.13 is mother, PW.14, is the cousin brother while PW.16 is the sister of deceased and PW.15 is the husband of PW16 while PW.17 is relative. PW.18, is neighbour. These witnesses have supported the case of the prosecution to some extent regarding demand of dowry. PW.19 Taluka Executive Magistrate, Bidar has recorded dying declaration as per Ex.P.10. It is interesting to note here that original of Ex.P.10 is not available and what is produced before the Court is a photocopy. PWs.24 to 27 are the relatives of accused while PW.28, the Scientific Officer, FSL. PW.30, is the doctor who has given treatment to the injured and other witnesses are the Investigating Officers. DW.1, is the doctor of 11 Konchavaram Community Health Centre, wherein the deceased was first admitted and who has given primary treatment and sent MLC requisition to Konchavaram Police Station and on the basis of which DW.2, visited the hospital and recorded the dying declaration of deceased as per Ex.D5.
11. It is an undisputed fact that accused is the husband of deceased Shilpa and their marriage was solemnized just one year prior to her death. It is also not disputed that deceased Shilpa died due to burn injuries sustained by her. The evidence of PW.10 and post mortem-Ex.P6, clearly establishes that death was due to burn injuries. Though, PW.7 claims to be an eyewitness in the instant case, his cross examination reveals that he is not an eyewitness. Admittedly, the incident has occurred within the 4 walls of the house of accused and deceased and after the deceased caught fire, she came running out of the house and 12 then the neighbours rushed to her and she was shifted to the hospital. So, it is evident that there are no eyewitnesses to the case of the prosecution and entire case of the prosecution is based on dying declaration. At the same time, it is also important to note here that there are 3 dying declarations recorded and interestingly prosecution has concealed the first dying declaration recorded as per Ex.D5.
12. It is an undisputed fact that the deceased caught fire on 02.05.2010 in between 2.00 to 2.30 p.m. and immediately she was shifted to Konchavaram hospital. After getting treatment there late night, she was shifted to District Hospital, Bidar. The evidence of DW.1, the doctor who treated the injured first clearly discloses that on 02.05.2010 at 4.30 p.m., the deceased was brought by accused and Kamalabai to the hospital with the history of burn and deceased has given history that when she was about 13 to lit fire to chimney, she caught fire and as such, he issued MLC and sent to the police station. Then, DW.2, who is head constable of Konchavaram Police Station, came to the hospital and in presence of DW.1, he recorded the dying declaration of the deceased. Ex.D3 is the MLC register and Ex.D3(a) is relevant entry in the MLC. Further, the evidence of DWs.1 and 2, establish that the deceased has given statement before DW.2 in presence of DW.1, as per Ex.D5 stating that she sustained burn injuries accidentally while filling kerosene in chimney and both DWs.1 and 2 have certified that the deceased was in conscious state of mind while giving statement. However, the evidence clearly discloses that DW.1 has sent MLC as per Ex.D1 at 5.15 p.m. on 02.05.2010 and Ex.D4, is the entry regarding in-patient register, which discloses that the deceased was admitted in Konchavaram Community Health Centre, initially. 14
13. But quite contrary, the prosecution has tried to make up a case that PW.21-ASI on 03.05.2010 at 12.00 noon received MLC report from the District Hospital, Bidar at 4.30 p.m. or 5.30 p.m. He visited the District Hospital and after ascertaining her condition, he sent requisition to Taluka Executive Magistrate for recording dying declaration of injured Shilpa. PW.21, when received requisition at 12.00 noon, his conduct itself establishes negligence as he visited hospital around 4.30 p.m. or 5.30 p.m. and he did not bother to visit hospital immediately.
14. Further, PW.21, deposes that Taluka Executive Magistrate has recorded the dying declaration and he recorded her statement as per Ex.P7 and registered the crime. Further, PW.19 has recorded the dying declaration as per Ex.P.10, as such in the instant case, there are 3 dying declarations. They are one at Ex.P5, second is at as per Ex.P.10 and 15 third is as per Ex.P7, which is complaint. Interestingly, Ex.P.10, is the photocopy produced by PW.19, but his evidence discloses that after recording the dying declaration and after obtaining the thumb mark of the deceased, he put it in an envelope, sealed it and handed over to ASI i.e. PW.21. However, later on, he further deposed that the same was missing and he produced the photocopy alleged to have been kept in his file which is at Ex.P.10. But, PW.21, nowhere claims that after recording dying declaration as per Ex.P.10, the same was handed over to him by the Taluka Executive Officer. Hence, there is ambiguity as to who was the custodian of Ex.P.10, whether PW.19 or PW.21.
15. The allegations made in Ex.P7, dying declaration/complaint discloses that while deceased was being shifted to the hospital, the accused has requested her to report to the police that she caught 16 fire accidentally, failing which, she will not be admitted in the hospital for treatment and as such, she alleged to have given a false statement before the police as per Ex.D5. As such the complaint assertions in Ex.P7, itself discloses that there was a reference regarding earlier dying declaration but the prosecution for the best reasons has not made attempts to produce the first dying declaration before the Court as per Ex.D5.
16. Further, Ex.P10, is the dying declaration recorded by the Taluka Executive Magistrate prior to recording of Ex.P7. But, there she did not refer that initially, she has given a false statement before the police. This material assertion which is made in Ex.P7, is found missing in Ex.P10. Very interestingly, in Ex.P10, there is another assertion by the end of second paragraph that due to accidental fire, she suffered burn injuries on her chest, face, both arms 17 and other parts of the body. These stands are quite inconsistent and contrary.
17. Apart from that Ex.P7, is not attested by Medical Officer who was on duty. PW.21, though admits the presence of Medical Officer, he did not bother to obtain the signature/ certification of the Medical Officer regarding fitness of the victim to give such statement. Further, though in Ex.P7, there is a reference of earlier statements given by the victim, PW.21 all along pleads ignorance in this regard. Even in Ex.P10, there is no certification that the victim was in a sound state of mind to give such a statement except a signature of alleged doctor. Even the doctor is also not examined. Ex.P10, is a secondary evidence and no concrete foundation was laid for relying the secondary evidence as the evidence of PWs.19 and 21 is inconsistent as to who was the custodian of original Ex.P10 and who lost it. On the contrary, the first 18 dying declaration recorded under Ex.D5, discloses that the deceased has given statement that she caught fire accidentally. Further, it is again supported by DW.1/doctor in whose presence it was recorded and DW.2, who has recorded it. All the 3 dying declarations are contrary to each other and hence it is not safe to rely the inconsistent dying declaration to base the conviction.
18. Learned counsel for the respondent has placed reliance on a decision reported in AIR 2021 SC 2399 (Jayamma and Another Vs. State of Karnataka), wherein the Hon'ble Apex Court had occasion to deal with the appreciation of the dying declaration, has observed that the endorsement of the Medical Officer regarding fit state of mind of the victim to make the statement has been made not before the statement but after the statement was recorded. It is essential that such certification is necessary before the 19 commencement of recording statement. In the instant case no such certification from medical officer is found on Ex.P.10 & Ex.P7. Further, the dying declaration is also not in a question answer format, which also creates suspicion regarding existence of Ex.P10. As observed above, the original Ex.P10 is not available and the prosecution has relied on Ex.P10 which is secondary evidence. A similar view is taken by the Hon'ble Apex in a decision reported in 2019 (4) SCC 739 (Sampat Babso Kale and Another Vs. State of Maharshtra). Apart from that, it is evident from the records that Kamalabai i.e. PW.27 had accompanied the accused in shifting the deceased to hospital. She did not support the case of the prosecution and there is no suggestion to PW.27 on behalf of prosecution that while she was travelling along with accused and deceased in ambulance, accused has influenced deceased. There is no 20 explanation coming from the prosecution, as to why the prosecution has tried to conceal recording of Ex.D5. If, at all accused had an intention to cause the death of deceased, he would not have taken lead in shifting injured wife to the hospital. Apart from that, PW.12, is the brother of deceased and in his cross examination, he has clearly admitted that the accused had paid amount of Rs.1 Lakh to him for medical treatment of deceased Shilpa. When, this evidence is taken into consideration, then question of demand of dowry is not substantiated as accused himself has spent lot of amount for treatment of his wife.
19. PWs.7 and 12 to 18, have deposed regarding payment of Rs.50,000/- and one tola gold being given in the marriage, but none of these witnesses deposed regarding demand by the accused. The gift given in the marriage does not come under 21 the purview of dowry as per definition under Section 2 of Dowry Prohibition Act, 1961.
20. The evidence clearly discloses that there is no cogent evidence regarding payment of additional dowry and if at all PWs.7 and 12 to 18 had received this information and had knowledge regarding the accused setting fire to deceased from her then they could have or anyone of them could have lodged the complaint immediately but that was not the case. The evidence on record clearly disclose that the prosecution has suppressed the genesis of the incident. Further, DWs.1 and 2 being the material witnesses were not cited as charge sheet witnesses by the prosecution. Even the prosecution has not made any attempt to secure the case sheet of the deceased to ascertain her condition at the time of recording Exs.P7 and 10. Though, Ex.P10, bears a signature of the doctor alleged to have recorded in his presence, 22 the said medical officer was not examined and as observed above, there is no certification regarding the state of mind of the victim to give such statement.
21. The learned Addl. SPP has argued that even if the dying declarations are ignored the offences under Section 3 & 4 of the Dowry Prohibition Act, are proved by the evidence of PWs.7 and 12 to 18. But, as observed above, the evidence is not convincing as to when and where the amount of Rs.7,000/- was paid to accused. On the contrary, the evidence discloses that the accused himself admitted the victim to the hospital and paid certain sum to PW.12 for treatment of the deceased. Hence, the said arguments by the learned Addl. SPP holds no water.
22. Hence, on assessment of entire oral and documentary evidence, it is evident that the prosecution has miserably failed to bring home the 23 guilt of the accused beyond all reasonable doubt. The learned Sessions Judge has appreciated the oral and documentary evidence in detail and arrived at just decision. Looking to the evidence on record, the dying declaration at Exs.P7 and P10 cannot be relied on. Further, when the trial Court has exercised the discretion by proper reasonings and the conclusion of the trial Court is reasonable and plausible, as such question of interference in this finding on ground that another view is possible does not arise, in view of the decision reported in AIR 2021 SC 2399 (supra). Further, in the decision reported in AIR 2016 SC 5231(Mahavir Singh Vs. State of Madhya Pradesh), the Hon'ble Apex Court has dealt with the power of the Appellate Court while interfering with the finding of the trial Court on acquittal by observing that it is not permissible, when two conclusions are possible based on the evidence on record. Further, in 24 the decision reported in AIR 2016 SC 2045 (V.Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga), the Hon'ble Apex Court has clearly held that there is a presumption of innocence in favour of accused person and such presumption is strengthened by an order of acquittal passed by the trial Court. It is further observed that accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal. Similar, view is also taken by the Hon'ble Supreme Court in the decision reported in AIR 2015 SC Crl.L.J.139 (Murlidhar Shivram Patekar and Another Vs. State of Maharashtra), and AIR 2014 SC 2200 (Muralidhar alias Gidda and Another Vs. State of Karnataka).
23. Hence, considering all these aspects and considering the weak circumstantial evidence lead by the prosecution and conduct of the prosecution in 25 suppressing Ex.D5, the evidence lead by the prosecution is not trustworthy to bring home the guilt of the accused. The learned Sessions Judge is justified in acquitting the accused considering the evidence on record and it does not call for any interference by this Court. The judgment of acquittal passed by the learned Sessions Judge is neither perverse or capricious or arbitrary nor illegal, so as to call for interference by this Court. Accordingly, we answer the point under consideration in the negative and proceed to pass the following:-
ORDER The appeal stands dismissed.
The judgment of acquittal dated 04.01.2013 passed in S.C No. 279/2010 by the I Addl. Sessions Judge, Gulbarga, whereby the learned Sessions Judge has acquitted the accused/respondent herein for the offences punishable under Sections 498-A, 302, 504 & 26 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE msr