Karnataka High Court
State Of Karnataka By vs Vijay Mohan Singh on 8 February, 2013
Bench: K.Sreedhar Rao, B.S.Indrakala
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IN THE HIGH COURT OF KARNATABILASH KAURA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 8th DAY OF FEBRUARY, 2013
BEFORE
THE HON' BLE MR. JUSTICE K.SREEDHAR RAO
ACTING CHIEF JUSTICE
AND
HON' BLE MRS. JUSTICE B.S.INDRAKALA
CRIMINAL APPEAL NO.402/2008
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY
BIDAR NEW TOWN POLICE ... APPELLANT
(BY SMT. ANURADHA. M. DESAI, ADDL. SPP)
AND
1. VIJAY MOHAN SIGNH,
S/O LATE JAGMOHAN SINGH,
AGED ABOUT 30 YEARS,
CAST SIKH,
OCC: PRIVATE ELECTRIC
SHOP NO.9, LINE NO.7,
GURUDWARA CAMPUS,
BIDAR
2. GURUBACHAN KOUR,
W/O LATE JAGMOHAN SINGH,
2
AGED ABOUT 60 YEARS,
OCC: HOUSE-HOLD,
R/O NO.9 LINE 7,
GURUDWARA CAMPUS, BIDAR.
3. MADANMOHAN SINGH,
S/O LATE JAGMOHAN SINGH,
AGED 44 YEARS,
OCC: BAGIWORK IN GURUDWARA TEMPLE,
R/O GURUDWARA CAMPUS, BIDAR.
... RESPONDENTS
(By Sri. AVINASH A. UPLOANKAR, ADV.)
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THIS CRIMINAL APPEAL IS FILED U/S. 378(1) & (3)
CR.P.C. BY THE STATE P.P. FOR THE STATE PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO
GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT DATED : 20.12.2007 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-IV, BIDAR IN
S.C.NO.83/2005 - ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE P/U/S. 302 R/W SEC 34
OF IPC AND SECS.3, 4 AND 6 OF D.P. ACT.
THIS CRL.A. HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGEMENT THIS DAY, B.S.
INDRAKALA J., DELIVERED THE FOLLOWING :
JUDGMENT
The Respondents in the above case are charge sheeted for the offence U/Sec.498-A, 304-B R/w 34 of IPC and Sec.3, 4 and 6 of D.P. Act, besides Respondent No.1/Accused No.1 is also charge sheeted for the offence 3 U/Sec.302 of IPC, alleging that the marriage of the daughter of CW-1/victim was celebrated on 11-12-2002 at Gurudwara with Accused No.1 and during marriage negotiations, accused no.1 to 3 demanded Rs.50,000/- as dowry in cash besides demanding 6-tolas of gold and household utensils and articles; after marriage, the victim stayed with the family of the accused no.1 to 3 for about six months and the victim led a normal life along with accused no.1 in his house along with other accused and after six months, accused no.1 to 3 started demanding additional dowry of Rs.50,000/- for purchasing the goods for electrical store and also demanded further gold weighing about 5 tolas; tortured her both mentally and physically despite advice of CWs-1, 2, 6 and 14. Further it is alleged that on 13-2-2005 at about 3-15 p.m., accused no.1 to 3 picked up quarrel with victim, scolding her for not bringing said amount of Rs.50,000/- and gold and also assaulted her; the neighbors pacified them and thereafter victim informed over telephone to her parents about the same and returned 4 home; at about 5-00 p.m., accused no.1 again picked up quarrel with victim as to why she telephoned her parents and by telling that he would kill her, poured kerosene on her, set fire and ran away; the neighbors extinguished the fire and got her admitted to Govt. Hospital, Bidar and from there she was shifted to Osmania Hospital, Hyderabad; where the victim succumbed to the burn injuries on 17-2- 2005.
2. After committal of the case and after completion of trial and also after recording statement U/Sec.313 Cr.P.C., of accused and after hearing arguments, the learned Presiding Officer of Fast Track Court-IV of Bidar, deemed it fit to acquit the accused of the offences alleged against them.
3. Aggrieved by the said judgment and order of acquittal, the State has preferred this appeal.
4. Heard the Arguments of Addl. SPP as well as learned counsel for the accused.
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5. In view of the submissions made, the points that arise for consideration are :
1. Whether the impugned judgment and order of acquittal dated 20-12-2007 passed in S.C.No.83/2005 on the file of Fast Track Court-IV Bidar, is liable to be set aside?
2. What order?
6. To prove its case, prosecution examined parents of the victim as PWs-1 and 2 and also examined neighbours in the neighbour hood of the house of the accused, as PWs- 3, 6 to 8, 10 and 11, the priest who officiated the marriage of the victim with Accused No.1 as PW-12, besides the prosecution has strongly relied upon the dying declaration of the victim recorded by Metropolitian Magistrate, who is examined as PW-28.
7. The accused has chosen to examine the son of A-1 and another as defence witnesses seeking to exonerate themselves of the allegations of subjecting the victim to 6 cruelty and also has pleaded that it was accidental burn injuries which the victim suffered.
8. The father of the victim who is examined PW-1 has deposed with regard to the marriage of the daughter/victim with accused no.1. He has further deposed that during the said period of celebrating the marriage of his daughter, he was working as General Secretary of Gurudwara Prabhand Committee, Bidar for about 15-days in a month and rest of the time he used to be at his native place Nanded in Maharashtra.
9. PW-1 further deposed that it was an arranged marriage; the accused was working in a private polytechnic college; the accused was introduced to him by his relatives Daulat Singh and his wife Sukhpal Kaur, who spoke well of accused no.1 and his family and called upon them to give a thought as to whether his daughter Abhilash Kaur could be given in marriage to him.
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10. Further he has deposed that before celebrating the marriage, marriage talks took place at Bidar in his house/quarters, which is within the premises of Gurudwara; during such talks, himself, his family members and said relation Daulat Singh (PW-6) and his wife Sukhpal Kaur were also present; on behalf of accused, all three accused were present; by the time marriage negotiations took place, accused no.1 had left the job; during such marriage talks, the accused sought a sum of Rs.50,000/- by way of dowry, so that the said accused no.1 can open electric shop of his own, they also demanded 5-tolas of gold and further they also called upon them to bear all the expenditure of the marriage, for which, he agreed, but, expressed his inability to pay the said dowry of cash. Further, he has deposed that he has six daughters and Abhilash Kaur was the fifth daughter; during the marriage, he gave gold in the form of ornaments of different kinds to his daughter and to the accused no.1, totally weighing to six tolas of gold which was agreed by him during the 8 marriage talks; Cash of Rs.50,000/- was not given during the marriage; for that amount, he had said that he will only look into it; Gold was given in the form of pair of bangles, chain to his daughter and a chain and ring to accused no.1; the marriage was celebrated on 11-12-2002; Further, he has deposed that subsequent to that marriage for an year and four months or so, his daughter was looked after well in the matrimonial home; his daughter also conceived and with permission of the accused, he took his daughter to his house at Nanded for delivery and she gave birth to a female child; as they intended to perform the cradle ceremony of his grand daughter; he sent words to the accused and their family members, asking them to participate in such function, which is held customarily, but, the accused no.2 refused to participate in such function and also prevented the other accused from attending the said function as he expressed his inability to pay the dowry of Rs.50,000/-; accused no.2 told him from where he got money to perform the cradle ceremony when 9 he is unable to pay Rs.50,000/- as dowry. Further, he has deposed that without any alternative, he performed the cradle ceremony in his house without any pomp and glory; subsequently after about three months or so from the date of such cradle ceremony, accused no.1 came and took his wife and daughter; he did not stay even for a day; he was also accompanied by his mother Gurubachan Kaur Accused No.2.
11. Further, he has deposed that, thereafter he was receiving reports from the neighbours about the way in which his daughter was being treated in the house of the accused; it was made known to him about the ill-treatment meted out to his daughter by these accused, in her matrimonial house; his daughter was bearing such ill- treatment stoically and had not told him anything directly. Further he has deposed that when he came to Bidar along with his wife and son and when he was residing in his house behind the house of the accused and secured the 10 presence of the accused to know the reasons for all that ill- treatment, at that time, his daughter/victim came and informed all the ill-treatment meted-out to her by these accused; he asked Accused No.3 being the eldest member of the family to resolve the dispute, if any, but, the accused charged his daughter as insane; he(PW1) tried to bring them round and also promised to pay cash amount in days to come and asked them not to make that an issue for ill- treating his daughter; accused promised to look after his daughter well; thereafter he did not receive any information of ill-treatment of his daughter for about a couple of months or so; but, subsequently on 13-2-2005 at about 5.00 p.m. or so, while he was at Nanded, he received a phone message from his daughter Abhilash Kaur and it was received by his wife; his daughter informed about the inhuman treatment given to her while she was attending the 25th annual wedding day celebration of the elder sister of accused no.1, which was celebrated at Hyderabad, where every member of the family of the accused abused his 11 daughter as coming from the beggar's family and even she was assaulted by them; accused No.1 assaulted his daughter even in the bus while returning to Bidar from Hyderabad; his daughter also apprehended that her life is in danger and she called upon to take her back and she expressed that she does not know as to what is going to happen and asked them to do something and they in turn told her that they are visiting Bidar on the next morning as there was no bus at that time.
12. PW1 has further deposed that thereafter, it was Accused No.3 who rang up and informed that his daughter sustained burn injuries and by so saying, he kept the phone abruptly; before they could leave, they received another information and this time it was CW-12 (PW-8) Billu, who called and he informed about his daughter having suffered grievous burn injuries and also about the doctors directing them to take her to hospital at Hyderabad; he also asked him to go to the Osmania Hospital at Hyderabad instead of coming to Bidar; he left 12 along with his family members from Nanded around 8-30 p.m., in two private vehicles and reached Hyderabad at about 2-30 a.m., on the same night they noticed that his daughter had suffered severe burn injuries; he tried to speak to her, she complained of her husband/accused no.1 pouring kerosene on her and setting her on fire; having so set on fire, accused no.1 went outside and bolted the room from outside; he also called upon her to make a statement before the officer concerned, but, she was reluctant and told that her child was in the custody of the accused and that the said child may also be set on fire in the event she makes any statement against their interest to which he told his daughter that, he will take the grand daughter to their custody. Further, he has deposed that once his daughter was assured of her daughter being taken to their (PW1s) custody, she expressed her desire to make statement and accordingly she made the statement also; all that happened in Hyderabad hospital only; it was his fourth daughter Namrita Kaur, who took the grand daughter from the 13 accused and even at present the child is brought up by her only and his grand daughter was aged 10 months or so, when the incident occurred. Police came to the hospital and took his complaint; the complaint was written by another son-in-law Thakur Singh/scribe as per Ex.P-1 and that the translated version in Kannada is marked as Ex.P-1(b).
13. The mother of the victim who is examined as PW-2 has also deposed corroborating the evidence of PW-1 on all material aspects. Though the said two witnesses are cross-examined at length, nothing is elicited to dis-believe the said consistent evidence of PWs-1 and 2.
14. The prosecution has also examined said Billu, who informed PW-1 over phone with regard to shifting of the victim to Osmania Hospital, Hyderabad as PW-8. He has deposed that his house is by the side of the house where accused are residing; he took the victim to the Govt. Hospital, Bidar and then to Osmania Hospital, Hyderabad, 14 having come to know about the incident that Abhilash Kaur suffered from burn injuries; several people had already assembled there; when he entered the house of accused no.1, he noticed Abhilash Kaur with burn injuries; fire was already extinguished, they shifted the victim in the ambulance to Govt. Hospital, Bidar and thereafter to Osmania Hospital, Hyderabad; he travelled in the Ambulance and Narendra Singh was with him; both of them were seated in the cabin of the ambulance; few persons were there by the side of the victim; he does not know their names; one among them was their nursing staff by name Swamy. Further he has deposed that he had telephoned PW-1 Amar Singh and informed the incident and about shifting of the victim to the said hospital and asked them to come to Osmania Hospital, Hyderabad; the victim had suffered 90% burn injuries; she was conscious during the journey. Once the parents came there to the hospital, himself, Narendra Singh returned to Bidar in the 15 same Ambulance which was being driven by one Rajappa PW-9.
15. Further he has deposed that it was Dr.Narendra Singh, who admitted Abhilash Kaur both at Bidar hospital and also at Osmania Hospital, Hyderabad. Further, he has deposed about the ill-treatment meted out to Abhilash Kaur.
16. The driver of the ambulance PW-9 has also deposed with regard to the shifting of the victim in that manner.
17. The said Doctor who got admitted the victim to both the hospitals is examined as PW-7. PW-7 has deposed that he is the private medical officer working as Dental Surgeon at Bidar; he is born and brought up at Bidar; he is residing in a separate block by the side of the building, where the accused are residing; Abhilash Kaur died of 16 burn injuries and on account of the incident which took place on 13-2-2005, after 4-days of she suffering burn injuries. Further, with regard to the incident, he has deposed that on that day, at about 5-00 or 5-30 p.m., when he was in his house, he overheard the out-cries of a lady coming from the building particularly from the house of accused no.1, like any other neighbour he went to that house in the first floor of that building; inside that house, he saw Abhilash Kaur being under fire, by that time, he entered the house, couple of persons in the immediate neighborhood were already there; they were pouring water to extinguish the fire, they also used shawls and the fire was put-off; they secured the Ambulance and rushed her to Govt. Hospital, Bidar; himself and another PW-8 Billu accompanied victim in the ambulance to the hospital; few others were also there in the Ambulance; the victim had suffered 80% burn injuries; first aid was given to her at Govt. Hospital; on being directed by the doctors at that hospital, they shifted the victim to Osmania Hospital, 17 Hyderabad in the same Ambulance; he accompanied her in that Ambulance along with others; they left Bidar by 7-00 p.m. or 7-30 p.m. and reached Hyderabad at 10-00 or 10- 30 p.m; they got her admitted in the hospital and Doctors took charge of the victim and attended to her medical needs; he was present only till the arrival of the parents of victim and subsequently left Hyderabad and returned to Bidar. Thus the said witness states only about shifting the victim to the hospital and getting her admitted to Osmania Hospital, Hyderabad. Neither this witness nor Billu PW-8 stated anything about the cause of the burns.
18. As stated supra apart from relying upon the evidence of the material witnesses in the case, the prosecution has mainly relied upon the dying declaration given by the victim which is marked as Ex.P-2 which is recorded by the concerned Judicial Magistrate. The said Magistrate who is examined as PW-28 has deposed that he was working as Prl.Jr.Civil Judge, Bhongir; during the 18 relevant period, he was working as XI Metropolitan Magistrate, Secunderabad. He has further deposed that in pursuance of the requisition received from the I.O., P.S. Afzal Gunj, he proceeded to Osmania General Hospital on 14.2.2005 and reached the said place around 6.25 a.m.; with the assistance of the police and duty doctor, he went to Acute Burns Ward and contacted the victim by name Abhilash Kour, wife of Vijay Mohan Singh; one Dr.Rajesh was the duty doctor; he interacted with the said doctor and satisfied himself as to the mental fitness of the victim to Abilash Kaure the statement before him and also obtained an endorsement in that regard on the relevant document Ex.-P-2 which is already marked. Further he has deposed that he asked preliminary questions to the victim and thereafter having been satisfied as to the nature of her statement being voluntary and not being under coercion or any kind of duress, he recorded her statement in his own handwriting 19 in Ex.P-2 and Ex.P-2(d) is his signature; the handwriting portion in Ex.P-2 is in his handwriting and they are true and correct; they are in question and answer form. Further, he has deposed that he read over the contents therein to the victim Abhilash Kour in Hindi language which was known to her and to him also; having admitted to the correctness of that document, victim signed in his presence as per Ex.P-2(a); that he obtained the signature of the duty doctor as per Ex.P-2(c). Further he has deposed that as a matter of abundant caution, he obtained the R.T.I. of the victim Abhilash Kour below Ex.P-2(a); that victim Abhilash Kour made statement against her husband with regard to assault and also acting under the influence of his mother and sister that he demanded money; she complained against the accused as being responsible for the death of his first wife also on account of being burnt by him. He has further deposed that at the time of recording Ex.P-2, other than 20 himself, the doctor and the victim, none else were present nearby; the victim was there in the general ward; having so recorded such statement of the victim as per Ex.P-2, he returned to his place of work along with the document and along with covering letter, he sent Ex.P-2 to IV Metropolitan Magistrate, Hyderabad, within whose jurisdiction that Osmania Hospital and Afzal GunjPolice Station are situated; and that the covering letter is marked as Ex.P-2(e) and Ex.P-2(f) is his signature. Further he has deposed that he was duty bound to record such statements in all the hospitals of Hyderabad for 15 days and for the next 15 days, some other Magistrate will be there; likewise the duty keeps changing every 15 days and since the date pertaining to the recording of this statement fell during his duty days he recorded the same.
19. On perusal of Ex.P.2 it is seen that the medical officer who examined her has certified as " Patient is 21 conscious and coherent and fit state of mind to give the statement". Same is recorded on 14.2.05. Further, apart from answering the general questions with regard to the incident, she is said to have stated as here under:
Q.No.1. What is your name?
Abhilash Kaur @ Jasprat Kaur.
Q.No.2. What is your husband's father's name?
Vijay Mohan Singh.
Q.No.3. Where do you reside?
Bidar, Karnataka Q.No.4. What is your marital status?
Two years back and I have one child. Q.No.5. where are you now and how you come here?
Osmania in Ambulance.
Q.No.6. Do you know that I am a Magistrate and has come to record your version? and you can freely give the same and whatever you say I will record the same?
She says:
As the patient is in fit condition, conscious and giving rational answers as such I am satisfied that he/she can give her/his declaration and make a statement.22
Q.No.7. What happened to you and how the same happened?
Yesterday at 5.00 p.m. in my house near the Gurudwara my husband Vijaya Mohan Singh took kerosene from the kerosene batti stove and put it on my body. I was wearing green color shirt and shalwar and he lit a match stick and put the burning match stick on my body and locked the door of the room and went away as such I was burnt on my face, hands and other parts of body.
Q.No.8. Is there any foul Act/Omission of any one or do you blame any one for this to you?
My husband did this to me. He beats me and acts under the influence of his mother and sisters. He demanded money from me and would torture to me. His first wife was also burnt by him.
Q.No.9. What is your mother in law's and sister in law's name and what they did to you?
My mother in law Gurbachan Kaur and my sister in law's elder one Maya Kaur and her mother in law and my other sister in law Meena Kaur use to scold me. They would call me to look after my mother in law well and would ask me to get money from my parents. They all would torture me and ask my husband to demand money from my parents.
Q.No.10 What was the behaviour of your husband Vijay Mohan Singh?
My husband would say that I am mad and frequently ask money. He had earlier wife by name Kamaljeet Kaur. She too was burnt by my husband and she died. My 23 husband managed the case and came out. (patient is in pain). He would ask me to get money from my parents.
Q.No.11. How you come out of the room and where was your daughter?
I opened the door and came out and my daughter was in other room and then I fell lot of pain and burning.
Q.No.12 What more do you want to say?
In Bidar to the Police I did not say the above as my husband and my brother in law Madan Mohan Singh threatened me and asked me not to tell the truth and hence I gave a wrong statement. Now I am telling the truth. Sir please help me and save me. My child be taken care of.
20. In a decision reported in Chirra Shivraj vs State of Andhra Pradesh reported in AIR 2011 SC 604, it is observed as hereunder:
"Where immediately after the incident, the deceased was taken to the Government Hospital, and upon getting information with regard to the offence Sub Inspector had rushed to the Government Hospital, and the deceased had made her statement before him and thereafter she had made her dying declaration before a judicial officer and said statement was scrupulously recorded by the Judicial Officer who had found the deceased to be conscious and fit to make statement, the dying declaration was trustworthy and reliable and can be sole basis for conviction 24 of accused for offence punishable u/S.304, Part 2 IPC".
21. The medical officer who certified with regard to the competency and fitness of the victim to give her statement before the Magistrate is examined as PW22. With regard to the dying declaration, he has deposed that it is a dying declaration recorded in his presence, it bears his signature Ex.P.2(b) and Ex.P.2(c); he certified to the effect that the said Abilasha Kaur was conscious and coherent and that she was in a fit state to make the statement as per Ex.P.2; the said dying declaration was recorded by the Metropolitan Magistrate, Secunderabad; that statement of the victim was recorded as per hear say in his presence. Further he has deposed that it is he who declared that she was dead on 17.2.2005; the dying declaration was recorded on 14.2.2005; the recording began at 6.25 am and concluded at 7.15 am. During the course of his cross examination, he has deposed that he did certify the mental status of the Abhilasha Kaur both at the beginning of the statement and also at the end and thereafter, he signed as 25 per Ex.P.2(b) and Ex.P.2(c); he has not recorded the pulse rate or BP; it may be in Hindi language the patient spoke but he does not remember now; he also knows Hindi, English and Telugu; the endorsement given above as per Ex.P.2 (b) and Ex.P.2(c) are in his handwriting. Further, he has deposed that he does not remember as to whether he had brought to the notice of the said Metropolitan Magistrate who recorded the dying declaration that the said patient had already stated before him which he had also recorded as it was a case of accidental burns; he must have told the same to the said Magistrate.
22. With regard to the alleged statement said to have been given at the time of admission, it is seen that the said witness has deposed that during the relevant period, he was a medical officer attached to Osmania Government Hospital, Hyderabad; on 14.2.2005 being the duty doctor, he examined Abilasha Kaur who was already admitted in the hospital around 12.30 mid night; he examined her and 26 found that she had suffered 87% burn injuries; she was conscious and also capable of speaking; she reported him that it was an accidental burn while cooking at her house; he has noted the same; the attested xerox copies of O.P. chit is at Ex.P.12; that OP chit is appended with the case sheet which is also a xerox copy and is in his handwriting and marked as Ex.P.12(a); he also wrote whatever was told to him by the victim. Further, he has deposed that looking at the injuries, he states that he was unable to make a distinction between whether it was accidental burns or burn injuries deliberately inflicted; he treated the victim till her last during his duty hours; she died on 17.2.2005.
23. With regard to the statement given at the time of admission, what is to be noted is that irrespective of what she stated at the time of admission to PW22 and what she stated to the Magistrate, the fact remains that she was conscious and capable of speaking.
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24. On perusal of Ex.P.12, the same reads as hereunder:
"11.40 PM Pt alleged to have injured by burns at 5.30 PM in Bidhar (Gurudwara) - - 90% burns".
On the second page of said Ex.P.12, the same reads as hereunder:
"Alleged history of accidental burns while cooking at kitchen and sustained burns all over body at about 5.30 PM at Bidar (Gurudwara)".
25. The said Ex.P.12 does not reflect that the said history was furnished by the victim. In the circumstance, the evidence of PW22 stating that the history was given by the patient cannot be accepted and as such cannot be construed as another piece of dying declaration. Though the said witness is cross examined, nothing is elicited to discredit the evidence of PW8 with regard to his participation in recording of dying declaration as per Ex.P.2.
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26. Thus, on perusal of the said dying declaration which is recorded by a Judicial Magistrate, it is seen that the victim at the time of giving statement was in a fit condition to give her statement and further, it is seen that the statement is recorded on 14.2.2005 and the victim survived for more than 3 days and she succumbed to the burn injuries on 17.2.2005. In the circumstance, the contention of PW28 that she was conscious and coherent in her speech and was fit to give statement has to be accepted. Further, it is seen that she has clearly stated about the demanding of dowry. Further, she has specifically stated that, " Yesterday at 5.00 PM in her house near Gurudwara, her husband Vijaya Mohan Singh took kerosene from the kerosene batthi stove, poured it on her; she was wearing green colour shirt and salwar and he lit a match stick and put the stick on her body, locked the door and room and went away; as such she was burnt on her face, hands and other parts of the body". Apart from the said statement, the dying declaration so recorded by 29 the Magistrate complying with all other requirements of making the dying declaration trustworthy, cannot be ignored for any reason. Further, with regard to the cause of burns apart from the said dying declaration, on perusal of the sketch marked with regard to the scene of offence, the engineer who visited the house and drew the sketch is examined as PW4
27. PW4 has deposed that in pursuance of the requisition received from the police by the AEE, PWD, on being directed by the said AEE, he who was at the relevant time working as Junior Engineer, PWD, Bidar went to the scene of offence situated at Gurudwara, Bidar and drew the sketch as per Ex.P.3(a); the scene of offence is situated at the first floor of the building and it is house no.9; that spot is shown in red ink in Ex.P.3; the hall measures 3.6 x 5 mtrs and bed room measures 3.6 x 3.5 mtrs, a part of the bed room space was also used as kitchen. Further, he has deposed that in that building there are 7 such houses in 30 the ground floor and similar such houses were there in the first floor also.
28. During the course of his cross examination, PW4 deposed that after the entrance of the house first comes room where the scene of offence is situate and thereafter there is a portico on the southern side of the scene of offence; there is a door to that house and to all other houses on southern side. Further, he has deposed that house no.9 had doors both on the northern side and southern side. Thus two rooms are separated by a building wall having its own door; that entrance door is having its own mechanism to bolt and lock from outside. Thus, it is seen that as the said room is also used as a kitchen, the availability of kerosene stove in that room for the accused to pour kerosene on the victim is more probable and it supports the contention of the victim that he poured kerosene from the kerosene batthi stove. Further, it is seen that the stove which was found at the spot is also seized 31 and marked as M.O.No.1 and the stove is not damaged to any extent. In the circumstance, the contention of the prosecution that the accused did pour kerosene and lit fire to the victim stands established.
29. The other important witness examined by the prosecution as PW3 is one of the neighbour who resides in the neighbourhood of the accused as well as the complainant. PW3 has deposed that she knows both the accused as well as the complainant and their family members; but, neither of them are related to her though they all belong to sikh community. Further she has deposed with regard to she residing in the neighbourhood of the accused and the complainant and with regard to the burn injuries suffered by the victim on 13.4.2005 at about
5.pm in the house of the accused at Bidar and her death on 17.2.2005 at Osmania Hospital, Hyderabad. Further she has deposed with regard to the marriage celebrations of the victim with accused no.1 and giving of gold ornaments and 32 also giving of other hosehold articles, utensils, furnitures which is customary by the complainant.
30. PW3 has also deposed with regard to how the victim was taken care in the beginning of her married life and how she was ill treated subsequently.
31. She has further deposed that meanwhile Abilash Kaur became pregnant which was not rejoiced by the accused as the accused no.1 had already 2 children from his first wife who were also residing with them in their family only. Further she has deposed that accused no.1 was not desirous of having 3rd child in the family by Abilash Kaur so early. Further she has deposed about the birth of the female child to the victim and the delivery having taken place in the house of the complainant and has deposed corroborating the evidence of PWs 1 and 2 on all material aspects. With regard to demand of dowry she has specifically deposed that being acquainted with the 33 accused she was in the habit of visiting them; and she had so visited on several occasions and whenever Abliash Kaur (victim) met her she used to complain about the ill treatment; she complained of her husband having no avocation of his own, and the accused seeking money from her father to enable accused no.1 to establish a business of his own; accused were demanding Rs.50,000/- for that purpose and on such demand the victim was being tortured.
32. Further she has also deposed that couple of times she had accompanied PW2 the mother of the victim to the house of the accused and about the attempt made to advise the accused etc. She has specifically deposed that the accused Vijaymohan Singh had his own shop after he left the services in the polytechnic college and he claimed to have suffered loss in the business and he needed money to improve it.
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33. Further she has deposed with regard to the accused along with the victim going to Hyderabad for attending the 25th marriage anniversary of the sister of accused no.1 and has stated that they returned from Hyderabad on 13.2.2005. While she was attending another function in the premises of Gurudwara; on her return from the function, a boy worker in her house reported to her that the arrival of Abliash Kaur being "Pareshan" (difficult) and Abilash Kaur was weeping; on hearing that she can go over to their house after some time and she was engaged in changing her clothes but within about 5 minutes or so she heard the voice of Abilash Kaur from her house, several people were rushing to her house and she also went.
34. Further, with regard to the said incident she has deposed that the house of the accused is in the first floor of the building. While they were so going, accused no.1 Vijay Mohan Singh was getting down from the staircase and he rushed away; they went up and opened the door of the 35 house that was bolted from outside; there is a sit out and there is a hall; the incident had taken place in the hall. Abilash Kaur was burning; she suffered burn injuries, as they rushed and they were able to douse the fire with whatever amount of water they could get from that house. There were 3 or 4 of them who participated in such dousing of fire; the kerosene stove with its lid open had fallen on the ground; the names of the persons who were with her are Ratan kaur (PW10), Sunita Kaur, Birendar Pal Singh @ Billu (PW8) Dr.Narendra Singh (PW7); when they so went inside the house of the accused it was about 5 pm; they secured the ambulance from Gurudwara Hospital and rushed her to the Government Hospital. Further, she has deposed with regard to taking of the victim to Osmania Hospital and she accompanying the victim in the ambulance.
35. Further the said witness has deposed with regard to the victim narrating and telling her about the 36 incidents and the quarrel that took place at Hyderabad and also about they returning to Bidar quarreling and about the assault made in the house at Bidar by accused no.1. She has further deposed regarding one Amarsingh and Madan Singh intervening and pacifying the quarrel. Further, she has deposed that the victim told her that after those people left, she came down to the phone booth and informed the same to her parents and returned to her house meanwhile accused no.1 picked up quarrel with her for she telephoning to her parents; he abusing her for all the infirmities touching the dowry and accused pouring kerosene on her from the stove and setting her fire and she told further that after setting her on fire, accused no.1 went out of the house by bolting the door from outside. Further she has deposed they reaching Osmania Hospital etc. Though she is cross examined at length by the accused, nothing is elicited to discredit her evidence in examination- in-chief.
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36. PW6 is another witness who is examined by the prosecution from the neighbour hood of the house of the accused. He has also deposed regarding he residing at quarter no.11 in the 1st floor of the same building, a house away from the house of the accused inasmuch as he has deposed that he is residing along with his family members at quarter no. 11 in the 1st floor of the building while Accused no.1/Vijaymohan Singh was residing in the same building in the said 1 floor a house away from his house(at no.9); his brother Madanmohan Singh was residing in the ground floor of the same building.; he was acquainted with each one of the accused as well as the complainant and his family members including the victim Abilash Kaur. Further he has deposed that Accused no.1 was residing with the 1st wife in the same quarters; they had 2 children 1 male and 1 female; his 1st wife died of burn injuries in the said quarters; it is thereafter that this complainant's daughter Abilash Kaur was given in marriage to him. Further he has deposed that Accused no.1 while residing with his 1st wife 38 used to quarrel with her; it was not only just a quarrel between husband and wife but, time and again it was brought to the notice of the neighbouring persons too; he used to beat her also; the relations between them was so strained that it ended in the first wife being burnt by Accused no.1; subsequent to that death Vijaymohan Singh remained in the same quarters for 2-3 years or so; thereafter himself, accused no.1 and his family members i.e., all the accused started requesting him to look for a girl so that 2nd marriage of the accused could be performed; after the death of the 1st wife of Accused no.1, his mother Gurubachan kaur started residing with Accused no.1. Further she has deposed with regard to how he got introduced the father of the victim to them and about the marriage and he has also deposed that subsequent to the death of the 1st wife, Vijaymohan SIngh had become calm and quiet, as such they all felt that there was a degree of transformation in his personality that had made them to think of the 2nd marriage. He has also deposed with regard 39 to the marriage talks, demand of 50,000 by the accused and PW1 expressing his inability to pay the same etc. He has deposed with regard to the ill treatment meted out to the victim and the demand of dowry made by the accused corroborating the evidence of other material witnesses.
37. Though the said witness is also cross examined at length, nothing is elicited to discredit his otherwise trustworthy evidence.
38. The other important material witness examined as PW10 who is also said to be the resident of another tenement in the same building where the accused were residing has also deposed regarding the marriage of Accused no.1 with the victim and subsequent conduct. Further she has deposed that when Abilash Kaur/victim returned to her matrimonial house with the child, the quarrel between them continued; the quarrel related to money and failure of Abilash Kaur to bring money from her parents. Further she has deposed that she had seen 40 Abilash Kaur after her return from Hyderabad, she was weeping; they had quarreled and during that quarrel their immediate neighbours Mahadev Singh, Amar Singh and Sundar singh had intervened; She too had intervened and pacified both of them and asked them to wait for the parents of Abilash Kaur to come and thereafter they returned. Further she has deposed that thereafter Abilash Kaur went to nearby telephone booth and telephoned to her parents and it was thereafter that she went to her(PW10) along with her child, called upon her to hold and keep her child and that she was apprehending anything may happen to her; she told her that if anything happens to her, to look after the child and to give the child to her father; she pacified her and asked her to maintain herself; thereafter, she went to attend Lunger to attend to her duties there; when she went and returning from Lunger at 5 pm she heard the cries of Abilash Kaur from her house; she rushed to her house so also other neighboring persons went there; Latha Kaur - PW3 was also there; she saw Vijaymohan 41 SIngh/Accused no.1 getting down from the stair case of the building; they entered the house having removed the bolt from outside, they extinguished the fire etc and has deposed corroborating the evidence of other material witnesses with regard to what followed thereafter.
39. PW11 is another witness who is engaged in the services of Gurudwara at Bidar and who is incharge of that Shrine since 16 years. He has deposed that he is residing in the premises granted to him by Gurudwara community situated in the ground floor of the building where Vijaymohan Singh is residing. Further he has deposed with regard to the marriage of Accused no.1 with the victim and he attending the same and the parents of the victim giving valuable clothes, utensils, furniture to the accused and also gold ornaments weighing 6 tolas or so to the accused etc. Further he has deposed with regard to the visit of Accused no.1 and the victim to Hyderabad etc. He has further deposed that on 13th February there was a 42 house warming of the priest of Gurudwara; he attended that function during noon hours and returning home; near his house he met Abilash Kaur he sought to know from her as to how was the function and the reasons for her early return; she spoke of the assault and ill treatment meted out to her by the accused at Hyderabad; she also asked him to intimate about the same to her father and her inability to stay with the accused/Vijaymohan SIngh. Further he has deposed that he had seen the victim speaking over phone from the nearby booth at 4.00 pm or so. He has deposed that when she complained him about the threat to her life and her desire to go over to her parental house, he prevailed upon her and asked to maintain cool and not to crystalise the matter; he also called upon her to wait till the arrival of her father so that they can discuss the matter etc. He has also deposed with regard to the frequent quarrel between Accused no.1 and victim etc. 43
40. Thus, the chain of circumstances which the prosecution relies upon with regard to the offence under Section 302 of IPC, is complete.
41. The chain of circumstances which the prosecution has established are:
(1) The homicidal death of the victim as evidenced by
(i) the post mortem report marked as Ex.P.13
(ii) by the evidence of the medical officer who conducted the autopsy who is examined as PW24 (2) The motive - as discussed supra by the evidence of material witnesses who have consistently deposed about the demand of Rs.50,000/- by Accused no.1 for doing his business, from the parents of the victim and the non-payment of the same by them. (3) The accused no.1 being last seen getting down from the scene of offence immediately after the alleged crime -as discussed supra, the same is deposed to by the aforesaid witnesses PWs 3, 6, 7, 8 and 10 and others. 44 (4) The dying declaration given by the victim - as established by the evidence of the Magistrate who is examined as PW-28 (5) The conduct of the accused in subjecting his first wife also to similar cruelty, harassment and his behavior both prior to the alleged incident and thereafter -which is also spoken to by all material witnesses as discussed supra
42. Thus the prosecution has established all the links in the chain of circumstances and chain is complete bringing home the guilt to accused no.1 with regard to offence under Section 302 of IPC beyond all reasonable doubt. Even otherwise, as discussed supra conviction can be based upon solely on the dying declaration of the victim.
43. With regard to the offence under Section 498A, as discussed supra, all the witnesses have consistently deposed with regard to the cruelty meted out to the victim 45 at the hands of the accused no.1. Even in the dying declaration, the victim has specifically stated about the same.
44. Thus, the prosecution has proved its case beyond reasonable doubt the guilt of accused no.1 with regard to the offence under Sections 302 and 498A of IPC and Section 4 of the Dowry Prohibition Act, 1961.
45. With regard to the offence under Section 3 of the Dowry Prohibition Act, 1961 it is seen that the witnesses have deposed that the ornaments and other utensils are given as per custom. In the said circumstances, the same cannot be termed as acceptance of dowry. However, with regard to demand of Rs.50,000/- as dowry, there is consistent evidence adduced by the prosecution. In the circumstances, accused no.1 is guilty of offence under Section 4 of the Dowry Prohibition Act, 1961. 46
46. With regard to the offence alleged against Accused nos.2 and 3 in respect of the demand of dowry and ill treatment meted out to the victim, on careful perusal of the evidence of all the witnesses examined in that regard, it is seen that no specific, individual allegations is forth coming in the depositions of any of the witnesses. Hence, they are entitled to be acquitted of all the offences alleged against them.
47. Hence, the following ORDER The appeal is partly allowed; The judgment and the order of acquittal dated 20.12.2007 passed by the Presiding Officer, Fast Track Court-IV, Bidar, in Sessions Case No.83/2005 in respect of Accused No.1 acquitting him of the offence under Sections 302, 498A of IPC and Section 4 of the Dowry Prohibition Act, 1961 is hereby set-aside. 47
Accused No.1 is hereby convicted for the offence U/Secs.302, 498A of IPC and Section 4 of the Dowry Prohibition Act, 1961. However, he is acquitted of the offence under Sections 3 and 6 of the Dowry Prohibition Act, 1961.
The Order of Acquittal acquitting accused nos.2 and 3 of the offences alleged against them is hereby confirmed.
Heard regarding sentence.
It is submitted by the learned Additional SPP that taking into consideration the conduct of Accused no.1 in subjecting the victim to constant cruelty under one guise or the other and the manner in which he has done away with her life, the accused does not deserve any leniency and the maximum punishment as contemplated under the provisions under which the accused is convicted may be imposed. As against the said submissions of the learned Addl. SPP, learned counsel appearing for the accused submitted that the case basically does not fall under the 48 category of the rarest of rare cases and the accused has undergone repentence, there are two children who are to be taken care off by him etc. and as such, the leniency as permissible under the statute may be extended to him.
Considering the aforesaid submissions of both the Addl. SPP and the learned counsel for the accused and also considering the mandates of statute, accused no.1 who is convicted for the offence under Section 302 of IPC is sentenced to undergo imprisonment for life and shall also pay fine of Rs.10,000/- and in default of payment of fine, shall undergo five months rigorous imprisonment.
Accused no.1 who is convicted for the offence under Section 498A of IPC is sentenced to undergo two years imprisonment and shall also pay fine of Rs.5000/- and in default of payment of fine, shall undergo three months rigorous imprisonment.
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The Accused no.1 who is convicted for the offence under Section 4 of the Dowry Prohibition Act, 1961 is hereby sentenced to undergo imprisonment for six months and shall also pay fine of Rs.1000/- and in default of payment of fine, he shall undergo Simple Imprisonment for 1 month.
All the sentences imposed shall run concurrently. The period of imprisonment undergone if any, shall be given set-off under Section 428 of Cr.P.C.
Sd/-
ACTING CHIEFJUSTICE Sd/-
JUDGE brn