Karnataka High Court
Sri Girisha vs State Of Karnataka By on 30 January, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No.1058 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
CRIMINAL APPEAL No.1058 OF 2020
BETWEEN:
1. SRI GIRISHA,
S/O VENKATARAMANAPPA,
AGED ABOUT 26 YEARS,
2. SMT. JAYAMMA,
W/O VENKATARAMANAPPA,
AGED ABOUT 45 YEARS,
BOTH ARE RESIDENTS OF
AMBALAJEERANAHALLI VILLAGE,
BELLUR HOBLI, NAGAMANGALA TALUK,
Digitally signed MANDYA DISTRICT.
by MALATESH K
C ...APPELLANTS
Location: High (BY SRI. HARIPRASAD M. B., ADVOCATE)
Court of
Karnataka AND:
1. STATE OF KARNATAKA BY
BELLUR POLICE STATION,
REPRESENTED BY
STATE SPECIAL PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU-560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
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CRL.A No.1058 of 2020
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C BY THE APPELLANTS PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION DATED 17.08.2020 AND
ORDER OF SENTENCE DATED 19.08.2020 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, MANDYA IN
S.C.No.97/2009 - CONVICTING THE APPELLANTS/ACCUSED
Nos.1 AND 2 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 498-A AND 302 R/W 34 OF IPC AND SECTIONS 3
AND 4 OF THE DOWRY PROHIBITION ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants/accused Nos.1 and 2 who are the husband and mother-in-law of the victim have filed the present Criminal Appeal against the judgment of conviction dated 17.08.2020 and order of sentence dated 19.08.2020 passed in S.C.No.97 of 2009 on the file of the Principal District and Sessions Judge, Mandya, sentencing them to undergo imprisonment for life and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 302 of the Indian Penal Code; to undergo simple imprisonment for a period of two years and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 498-A of the Indian Penal Code; and to undergo simple imprisonment for a period of five years and -3- CRL.A No.1058 of 2020 to pay fine of Rs.15,000/- each, in default, to undergo simple imprisonment for a period of three months for the offence punishable under Section 3 of the Dowry Prohibition Act; and further, to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 4 of the Dowry Prohibition Act.
2. It is the case of the prosecution that the marriage of the victim-Smt.Leelavathi was solemnized with accused No.1-Girisha, on 20.08.2006. At the time of marriage, the accused persons received cash of Rs.10,000/- as dowry, Rs.75,000/- towards marriage expenses, a gold ring and a neck chain as dowry. Thereafter, the accused persons, in furtherance of common intention, demanding additional dowry, subjected the victim to ill-treatment and also attempted on her life by pouring kerosene on 16.07.2008 at about 8.30 am in their house at Ambalajeeranahally.
3. P.W.1-Munilakshmamma, mother of the victim, lodged the complaint on 08.11.2008 as per Ex.P.1 to the effect -4- CRL.A No.1058 of 2020 that, on 17.07.2008, her son-in-law made a phone call and informed that her daughter-Leelavathi has sustained burn injuries due to bursting of kerosene stove and that they have admitted her to the hospital. Immediately, they went to Chunchanagiri Hospital. They saw that Leelavathi had sustained burn injuries all over the body and was not in a position to speak. At that time, her son-in-law and his parents were present in the hospital and they informed that the previous day, the stove got burst while boiling the water and begged by holding her feet requesting not to lodge any case and that they will bear the medical expenses. Since Leelavathi was not in a position to speak, she could not know the actual facts and therefore, they did not lodge the complaint. After recovering a bit, Leelavathi informed them that on 16.07.2008, since morning her husband and parents-in-laws picked up quarrel with her and asking her to bring money from her father's house or else they would burn her. Since she refused to bring money from her parents' house, they poured kerosene on her and lit the fire. On the same day i.e., on 08.11.2008, P.W.1 lodged the complaint. Accordingly, the jurisdictional police registered the case against accused Nos.1 to 3 in Crime -5- CRL.A No.1058 of 2020 No.254/2008 for the offences punishable under Sections 498-A r/w Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
4. It is further case of the prosecution that, on the same day, i.e., on 08.11.2008 the statement of the victim was recorded as per Ex.P.27 at Adichunchanagiri hospital by the ASI, who was not alive as on the date of recording the evidence by the Trial Court. Ex.P.27 is the first statement of the victim. Subsequently, in the presence of the Tahsildar-P.W.19, the statement of the victim was recorded on 10.11.2008 as per Ex.P.23. After investigation, the police filed the charge sheet against the accused persons, initially under the provisions of Sections 498A and 307 r/w Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Later, the victim died on 07.11.2009, i.e., almost after one year from the date of the incident. In the post mortem report, the Doctor has opined that the cause of death could be due to septicemic shock from infection of the malignant transformation of the burn scar and the burnt scars are antemortem in nature. After death of the victim, additional charge sheet was submitted by -6- CRL.A No.1058 of 2020 the Investigating Officer against accused persons by incorporating Section 302 of the Indian Penal Code.
5. Since the matter was triable by the Sessions Judge, the learned Magistrate committed the matter to the Sessions Court. The learned Sessions Judge, secured the presence of accused Nos.1 to 3 and framed the Charge on 08.06.2010 for the offences punishable under Sections 498-A, 307 r/w Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Later, on 07.07.2010, additional Charge was framed for the offences punishable under Sections 302 and 304-B read with Section 34 of the Indian Penal Code. The Charge was read over to the accused persons in the language known to them, who pleaded not guilty and claimed to be tried.
6. Accused No.3, father-in-law of the victim died during pendency of the Trial. In order to prove the case of the prosecution, in all 23 witnesses were examined as P.Ws.1 to 23 and documents Exs.P.1 to P.29 and Ex.C.1 were marked.
7. After completion of the evidence of prosecution witnesses, statements of the accused persons as contemplated under Section 313 of the Code of Criminal Procedure were -7- CRL.A No.1058 of 2020 recorded. The accused persons denied all the incriminating circumstances adduced against them by the prosecution witnesses. Accused No.1 filed written statement under Section 313(5) of the Code of Criminal Procedure stating that the victim herself poured kerosene on her body and lit the fire.
8. Based on the aforesaid pleadings, the learned Sessions Judge framed the following issues:
(i) Whether the prosecution proves beyond all reasonable doubt that, accused Nos.1 to 3 received Rs.10,000/- and jewelleries by way of dowry and also received Rs.75,000/-
towards marriage expenses at the time of marriage and thereby, accused persons committed an offence punishable under Section 3 of the Dowry Prohibition Act?
(ii) Whether the prosecution proves beyond all reasonable doubt that, while leading marital life, the accused persons used to gave physical and mental harassment to the deceased Smt.Leelavathi, demanding Rs.5,000/- as part of dowry and thereby accused persons committed an offence punishable under Section 4 of Dowry Prohibition Act?
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(iii) Whether the prosecution proves beyond all reasonable doubt that, while leading marital life, the accused Nos.1 to 3 used to gave physical and mental harassment and practiced cruelty on the deceased Smt. Leelavathi thereby accused persons committed an offence punishable under Section 498-A r/w Section 34 of IPC?
(iv) Whether the prosecution proves beyond all reasonable doubt that, on 16.07.2008 at 8.30 am, in the house of the accused persons situated at Ambalajeeranahalli village, Nagamangala accused No.1 Girisha dragged the complainant to the kitchen room, accused No.2 Smt. Jayamma poured kerosene, at that time accused No.1 Girisha lit fire, accused No.3 Venkataramanappa closed the door, caused burn injuries, thereafter deceased Smt. Leelavathi succumbed to the burn injuries on 07.11.2009 at Beedanapaly village, Nelamangala Taluk and thereby accused persons committed an offence punishable under Section 302, 304-Br/w Section 34 of IPC?
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9. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that, the prosecution proved beyond reasonable doubt that the accused Nos.1 to 3 received Rs.10,000/- and jewelleries by way of dowry and also received Rs.75,000/- toward marriage expenses at the time of marriage and thereby, committed an offence punishable under Section 3 of the Dowry Prohibition Act; and in the matrimonial home, the accused persons used to give physical and mental harassment to the deceased- Smt.Leelavathi, demanding Rs.5,000/- as part of dowry and thereby accused persons committed an offence punishable under Section 4 of the Dowry Prohibition Act. It is further recorded that the prosecution proved beyond reasonable doubt that, accused Nos.1 to 3 used to give physical and mental harassment and practiced cruelty on deceased Leelavathi and thereby committed an offence punishable under Section 498-A r/w Section 34 of the Indian Penal Code and that on 16.07.2008, at 8.30 am, in the house of the accused persons situated at Ambalajeeranahalli, Nagamangala, accused No.1 dragged the victim to the kitchen room, accused No.2 poured kerosene and at that time, accused No.1 lit the fire, accused
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CRL.A No.1058 of 2020No.3 closed the door and thereby caused burn injuries, due to which, the victim succumbed to the burn injuries on 07.11.2009 at Beedanapally village, Nelamangala Taluk and thereby, accused persons committed offences punishable under Sections 302, 304-B r/w Section 34 of the Indian Penal Code. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment of conviction and order of sentence. Hence, the present Criminal Appeal is filed.
10. Sri Hariprasad, learned counsel for the appellants/accused Nos.1 and 2 contended with vehemence that there is delay of three months in filing the complaint. Absolutely no explanation is offered by the prosecution for the delay. Thereby, after due deliberation, innocent accused persons have been falsely implicated. Thereby, the impugned judgment of conviction and order of sentence is liable to be set- aside.
11. Learned counsel further contended that the victim gave her statement on 08.11.2008 as per Ex.P.27. On the same day, the mother of the victim lodged the complaint as per Ex.P.1. Subsequent statement of the victim as per Ex.P.23 was
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CRL.A No.1058 of 2020recorded on 10.11.2008. Ex.P.27 was recorded by C.W.22- Kalappa, ASI, and he has not been examined by the prosecution as he had died by that time. Who recorded the second statement dated 10.11.2008 is not forthcoming. The said aspect of the matter has not been considered by the learned Sessions Judge. He further contended that accused Nos.1 and 2 took the victim to the hospital and admitted her. The accused No.2 was in the hospital through out the treatment. The victim was taken to home only on the advice of the doctor, after her discharge from the hospital. The conduct of the accused persons depicts that they have taken care of the victim when she was admitted in the hospital. After one year of discharge from the hospital, the victim died in the native place of her mother-P.W.1 and the death was not due to the injuries sustained in the alleged incident.
12. Learned counsel further contended that both the complainant and the accused are below poverty line. No neighbours have been examined to prove the cruelty or harassment meted out to the victim by the accused persons, as contemplated under Section 498A of the Indian Penal Code. Therefore, the allegation of demand for dowry is not proved.
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CRL.A No.1058 of 2020The victim was discharged from the hospital on the advise of the doctor-P.W.18. The victim died on account of not taking the prescribed medicines properly and not taking the follow up treatment, mainly on the negligence of P.W.1 and the victim herself. The post mortem report issued by the doctor as per Ex.P.28 clearly depicts that the death was due to septicimic shock from infection of malignant transformation of the burn scar and, not due to the injuries sustained. The victim died one year after the incident. There was no immediate threat to her life. Section 302 of the Indian Penal Code was incorporated subsequently, in collusion with police and after due deliberations. Thereby, impugned judgment of conviction and order of sentence cannot be sustained.
13. He would further contend that earlier, the learned Sessions Judge by order dated 28.06.2013 in SC No.97/2009 acquitted the accused persons for the offences made out against them in the charge memo. Against the said order passed by the learned Sessions Judge, the State has preferred Criminal Appeal No.93/2014, which came to be allowed mainly on the ground that there was failure on the part of the prosecution in not examining Professor Subbegowda,
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CRL.A No.1058 of 2020Psychiatrist, BGS Hospital, Bellur Cross, Nagamangala Taluk, who counseled the victim on 21.10.2008, wherein the victim informed him regarding she being subjected to dowry harassment and this witness is specified to be vital and his testimony is essential. Thereby, the criminal appeal was allowed and the impugned order of acquittal dated 28.06.2013 was set-aside and the matter was remanded back to the Sessions Court for recording further evidence of Professor Subbegowda, Psychiatrist, BGS Hospital, who counseled and treated the victim on 21.10.2008 i.e., prior to the registration of complaint. After remand, the learned Sessions Judge proceeded to convict the accused for the offence punishable under Sections 498A and 302 of IPC and Sections 3 and 4 of Dowry Prohibition Act without there being any merit.
14. He further contended that P.W.1-mother of the deceased partly turned hostile. P.W.21-Tahsildar, who recorded dying declaration of the deceased, has not deposed about the fit state of mind of the deceased while recording her statement. P.W.23-Doctor has partly turned hostile. Ex.P.21-copy of MLC Register Extract discloses that the mother-in-law-of the deceased requested not to make any MLC as they are relatives
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CRL.A No.1058 of 2020and the fire occurred accidentally. In support of his contention, learned counsel relied upon the dictum of the Hon'ble Supreme Court in the case of Banarsi Dass v. State of Haryana, reported in (2014) 15 SCC 485 at paragraph No.15 and prays to allow the appeal filed by the accused.
15. Per contra, Sri. Vijayakumar Majage, learned Additional SPP for the State while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge would contend that there is a delay of three months in lodging the complaint and it is not a case of the accused as P.W.1-mother of the deceased in her examination-in-chief as well as in the cross-examination clearly stated that accused Nos.1 and 2 requested her not to lodge any complaint since the accidentally fire occurred and they would bear the medical expenses of the deceased. Thereby, P.W.1 could not lodge the complaint immediately after the incident and explanation was offered to that effect. Therefore, there is no delay in lodging the complaint. He further contended that P.W.23-doctor stated on Ex.P.22 (a) that the alleged incident took place due to dowry harassment and domestic violence and the evidence of the doctor is remained unchallenged.
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CRL.A No.1058 of 2020
16. He further contended that the Tahsildar by letter dated 10.11.2008 as per Ex.P.25 requested the Chief Medical Officer, A.C. Giri Hospital, B.G. Nagar, about the fit state of mind of the victim for recording the statement of the victim, and also the Sub-Inspector of Police, as per Ex.P.26 to give a fitness certificate of the victim to record the statement. Accordingly, the statement of the injured/victim was recorded on 08.11.2008 as per Ex.P.27-first statement. The material on record clearly depicts that the statement made under Ex.P.27 first statement was the first dying declaration and the second dying declaration was recorded as per Ex.P.23 on 10.11.2008. Though there is no specific endorsement about the fitness of the victim either in Ex.P.27 or in Ex.P.23, the fact remains that the ASI, who recorded the first dying declaration of the deceased, was not examined as a scribe as he was not available on the date of the examination. The second dying declaration recorded by the Tahsildar was after getting information from the doctor that the victim was in a fit state of mind. The material on record clearly depicts that the accused involved in the homicidal death of the deceased and there was constant harassment with regard to dowry. Thereby, the
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CRL.A No.1058 of 2020learned Sessions Judge is justified in convicting the accused for the offence punishable under Sections 498A and 302 of IPC read with Section 34 of IPC and also Sections 3 and 4 of Dowry Prohibition Act. Therefore, he sought to dismiss the appeal.
17. In view of the aforesaid rival contentions urged by the learned counsel for the appellant and the learned Additional State Public Prosecutor, the points that arise for our consideration are:
"1. Whether the accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence convicting them to undergo imprisonment of life with fine of Rs.5,000/- each for the offence punishable under Section 302 of IPC?
2. Whether accused Nos.1 and 2 have made out a case to interfere with the simple imprisonment for a period of two years with fine of Rs.5,000/- each for the offence punishable under Section 498(A) of IPC and simple imprisonment for a period of five years with fine of Rs.15,000/- each for the offence punishable under Section 3 of DP Act and also simple imprisonment for a period of six months for the offence punishable under Section 4 of DP Act in
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the facts and peculiar circumstances of the present case?"
18. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record including the original records carefully.
19. This Court being the appellate Court in order to re- appreciate the entire material on record, it is relevant to consider the following evidence of the prosecution witnesses and documents relied upon:
i) P.W.1-Munilakshmamma being a mother of the deceased/ complainant deposed that she knew the accused persons. Accused No.1 is the husband of her daughter, P.W.3-Venkateshappa is her brother, P.W.4, P.W.5, P.W.6 and P.W.7 are her relatives. Accused No.2-
Jayamma and accused No.3-Venkataramanappa are parents of accused No.1-Girisha. The marriage of her daughter was solemnized with accused No.1, and her daughter gave birth to a male child. She deposed that her daughter was suffering from mental illness. On the
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CRL.A No.1058 of 2020date of the incident, on hearing the message, P.W.1 came to BGS Hospital, Bellur and found burn injuries on the body of Leelavathi and came to know that Leelavathi herself poured kerosene and lit fire. She has taken treatment at BGS Hospital, Bellur and she died at Beedanapalya village. P.W.1 nowhere stated either about the alleged harassment or about pouring kerosene, liting fire by accused Nos.1 and 2. Even she gives go-by to the case of the prosecution by denying the averments of Ex.P.1-complaint.
In the cross-examination, she deposed that she approached the police on 08.11.2008 alleging that accused Nos.1 and 2 poured kerosene and lit fire on Leelavathi and also narrated about harassment given by the accused persons. She also stated in the cross- examination to let go the accused and let them live and she turned hostile.
(ii) P.W.2-Hanumantharayappa, father of the deceased deposed that on the date of the incident, he along with others rushed to the BGS Hospital, Bellur and
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CRL.A No.1058 of 2020enquired with Leelavathi and then came to know that deceased herself poured kerosene and lit fire. He turned hostile to the case of the prosecution.
(iii) P.W.3-Venkateshappa and P.W.4-Padma deposed that they are relatives of P.W.1 and admitted about the marriage negotiation took place in the house of accused persons and marriage has been solemnized and the Leelavathi led marital life in the house of the accused persons situated at Ambajeeranahalli Village, NagamangalaTaluk. But they denied about demand of dowry, harassment given by the accused persons. As per the case of the prosecution, Ex.P.1-complaint has been written by P.W.3 in his own handwriting and admitted his signature on the complaint as per Ex.P.1(a) and they turned hostile to the case of the prosecution.
(iv) P.W.5-Thimmaiah and P.W.6-Gowramma deposed that they knew the accused persons as well as the deceased. The marriage of accused No.1 solemnized with the deceased and they attended the marriage. They also turned hostile to the case of the prosecution.
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(v) P.W.7-Jayanna, deposed that he was present at the time of the marriage negotiation, he participated in the marriage and he knew the subsequent incident, but he turned hostile to the case of the prosecution.
(vi) P.W.8-Mahesh and P.W.9-Sridhara neighbourers of the accused persons have not supported the case of the prosecution.
(vii) P.W.10-Ravi and P.W.11-Gangaraju, relatives of P.W.1 and P.W.2 deposed that they rushed to the spot and came to know about harassment given by the accused persons to the deceased and they rushed to the BGS Hospital, Bellur, Nagamangala but they have not supported the case of the prosecution.
(viii) P.W.12-Savithramma neighbourer of the accused persons, who participated in the marriage ceremony and who knew the incident, turned hostile.
(ix) P.W.13-Dr. Shivamadu deposed that he was working as Medical Officer at BGS Hospital, BG Nagar, Bellur for the last eight years. The deceased
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CRL.A No.1058 of 2020Leelavathiwas admitted to the hospital with the history of burn injuries on 16.07.2008 at 10.30 a.m., who was brought by accused No.2-Jayamma and found the following burn injuries:
1. Burn injuries on neck, left side face,
2. Burn injuries on chest (breast)
3. Burn injuries on abdomen,
4. Burn injuries on both hands,
5. Burn injuries on left side thigh.
He deposed that Leelavathi was admitted to the hospital and he has given treatment at burn ward. She was unable to move properly even unable to attend nature call. He further deposed that Smt. Leelavathi was in a fit condition on 10.11.2008 and to that effect, he produced Ex.P.24 report and entire file was certified by Dr. M. Shivanna. He further deposed that P.W.21-R. Lokanatha being a Taluk Executive Magistrate came to the hospital, enquired about the health condition of Smt. Leelavathi. At that time, she was in a fit condition to give a statement. Accordingly, P.W.21 recorded the statement
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CRL.A No.1058 of 2020of the deceased in the presence of P.W.13 and obtained his signature as per Ex.P.23(a). The evidence of the doctor is consistent with the evidence of P.W.21 with regard to recording of Ex.P.23-dying declaration. Admittedly, there is no enmity between P.W.21 and the accused persons and supported the case of the prosecution.
(x) P.W.14-Dr. M.C. Chandrashekaraiah deposed that on 08.11.2008 at 8.00 p.m. when he was at BGS Hospital, Bellur, C.W.22-H.P. Kalappa, ASI came to the hospital and enquired about the health condition of Smt. Leelavathi. On examination of Leelavathi, he made an endorsement as per Ex.P.26(a) to the effect that the deceased was in a fit state of mind to give statement. He further deposed that, at the time of recording the statement of the deceased as per Ex.P.27, deceased has stated that accused persons picked up quarrel with her in early morning hours on 16.07.2008, directed her to bring dowry amount from her parents house, when she refused to go to her parents house, at 10.30 a.m. accused No.2 poured kerosene, accused No.1 lit fire. Thereafter,
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CRL.A No.1058 of 2020accused No.3 being the father-in-law of the deceased, closed the door. As a result, she sustained burn injuries. Thereby, he supported the case of the prosecution.
(xi) P.W.15-Dr. Vinaykumar deposed that he worked as Medical Officer at PHC Nelamangala, Bangalore Rural District during the year 2006 to 2010. As per the requisition of Tahsildar, Nelamangala, he conducted postmortem on the dead body of Leelavathi on 07.11.2009 between 4.30 to 6.30 p.m. at open area of Beedanapalya Village, NelamangalaTaluk. He further deposed that he found burn injuries on the body of Leelavathi i.e., neck, ear, chest, shoulder, hands and thighs. The burn injuries are not healed and converted into form of cancer. The injuries are antemortem in nature. After examination of the body, he opined that death was due to septicemic shocks from infection of the malignant transformation of the burn scar. Burnt scars are antemortem in nature. Accordingly, he issued postmortem report as per Ex.P.28 and thereby, he supported the case of the prosecution.
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(xii) P.W.16-Rangaswamy, Circle Inspector, deposed that he took charge from C.W.23 for further investigation and conducted investigation, recorded statements of P.Ws.2, 5 and 10 and drawn mahazar and filed charge-sheet against accused persons for the offence punishable under Sections 498A, 207 and 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act and supported the case of the prosecution.
(xiii) P.W.17-Nagaraju, Police Constable deposed that he worked along with C.W.22-H.P. Kalappa, ASI for a period of three years. He deposed that C.W.22-H.P. Kalappa died later. He deposed that he can identify the signature of C.W.22-H.P. Kalappa, ASI found on Ex.P.27- dying declaration. In fact, as per his evidence, he accompanied H.P. Kalappa, ASI to BGS Hospital, Bellur and recorded the statement of the deceased Smt. Leelavathi in the presence of P.W.14-Dr. M.C. Chandrashekaraiah. He reduced into writing as per the statement given by Smt. Leelavathi. Later, H.P. Kalappa, ASI took the signature of Smt. Leelavathi as per Ex.P.27(b) and also identified the signature of H.P.
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CRL.A No.1058 of 2020Kalappa, ASI as per Ex.P.27(c) and supported the case of the prosecution.
(xiv) P.W.18-Dr. Mahimanjan Singh deposed that the deceased admitted to the hospital on 16.07.2008 at 11.45 a.m. with the history of burn injuries. He examined the deceased and the deceased took treatment upto 12.11.2008 under his supervision and she was conscious. He further deposed that the relative of the deceased Leelavathi got her discharged from the hospital against the advice of the doctors and also obtained consent letter of P.W.1 as per Ex.P.24 (d). He opined that the burn injuries may turn into wound like cancer, which may result in death.
(xv) P.W.19-T.D. Raju, CPI deposed that he took further investigation on 29.11.2009 from PSI, Bellur Police Station in Crime No.254/2008. He deposed that he came to know that the deceased died due to burn injuries as per Ex.P.28-Post Mortem report. Accordingly, he filed additional charge-sheet on 25.11.2009 by producing inquest mahazar, postmortem report for the offence
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CRL.A No.1058 of 2020punishable under Section 302 of IPC. Thereby, he supported the case of the prosecution.
(xvi) P.W.20-K.M. Manju, Police Sub-Inspector deposed that he was working as PSI at Bellur Police Station. He took investigation from C.W.22-H.P. Kalappa. He deposed that C.W.22 is no more and he can identify the signature of ASI found on Ex.P.1(b). He further deposed that he had been to BGS Hospital and found burn injuries on the body of Leelavathi and he came to know from P.W.1 that the accused persons gave harassment to Leelavathi. Accordingly, he took Ex.P.1- complaint to the police station, registered a criminal case, forwarded Ex.P.29 report to the Court and as per directions of CPI, he arrested the accused persons and produced the accused persons before P.W.16 and thereby, supported the case of the prosecution.
(xvii) P.W.21-R. Lokanathan, Taluk Executive Magistrate deposed that he was working as Tahsildar from 2007 in Nagamangala Taluk. On 10.11.2008, he received requisition from Bellur Police Station to record
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CRL.A No.1058 of 2020the statement of deceased Leelavathi. Accordingly, he had been to BGS Hospital, Bellur, interacted with Leelavathi and came to know that she sustained burn injuries. When, he enquired the victim she stated that accused Nos.1 to 3 gave harassment by demanding dowry and accused No.2 poured kerosene and accused No.1 lit the fire. As a result, she sustained burn injuries and was admitted to the hospital. He recorded statement as per Ex.P.23 and admits his signature found on Ex.P.23 as Ex.P.23(c) and supported the case of the prosecution.
(xviii) P.W.22-Gopalaiah,Taluk Executive Magistrate deposed that he was working as Tahsildar at NelamangalaTaluk Office, Bangalore Rural District. As per the request of Bellur Police, he had been to Beedanapalya Village, NelamangalaTaluk on 07.11.2009, conducted inquest mahazar as per Ex.P.19 on the dead body of Smt. Leelavathi, found burn injuries on the cheek, neck, chest, abdomen, hands. He recorded the statement of the mother of the deceased. The fact of death, conducting inquest mahazar on the dead body of
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CRL.A No.1058 of 2020Smt. Leelavathi are not in dispute. Similarly, burn injuries found on the dead body is not in dispute. Thereafter, he recorded statement of mother of the deceased and supported the case of the prosecution.
(xix) P.W.23-Dr. S.K. Subbegowda deposed that he was working as Psychiatric Professor at Adichunchanagiri Medical College during the year 2001- 2009. Deceased Leelavathi was admitted to the hospital with a history of burn injuries and she has been referred to his department on 21.10.2008 at 10.45 a.m. On examination, he found burn injuries to an extent of 70%. He interacted with Smt. Leelavathi, enquired about the injuries and family background. At that time, Leelavathi said that accused persons used to gave harassment by demanding dowry but her parents did not turn up, as a result, accused persons continued their harassment, when she is unable to explain, the accused persons poured kerosene, lit the fire and thereby, partly supported the case of the prosecution.
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CRL.A No.1058 of 2020Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused persons.
20. By plain reading of Ex.P.1-complaint by P.W.1- mother of the deceased and first dying declaration of the deceased-Leelavathi as per Ex.P.27 on 08.11.2008, recorded by C.W.22 clearly depicts that the marriage of accused No.1 and the deceased took place on 20.08.2006 and though accused Nos.1 to 3 received a sum of Rs.10,000/- and gold ornaments as dowry as on the date of the marriage, they gave harassment to the deceased demanding to bring further dowry. When she refused to go to her parent house to get additional dowry, accused No.2 poured kerosene, accused No.1 lit the fire and accused No.2 locked the door. The same statement was also given in the second dying declaration as per Ex.P.23 recorded on 10.11.2008.
21. By careful perusal of first statement/dying declaration as per Ex.P.27 on 08.11.2008 recorded by C.W.22, the case was not registered. Admittedly, C.W.22-ASI, who recorded the first dying declaration of the victim as per Ex.P.27
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CRL.A No.1058 of 2020was not examined since he was dead as on the date of the evidence. By careful perusal of the said document clearly depicts that the victim's statement after her death on 07.11.2009, has become dying declaration and it does not depict the endorsement with regard to fit state of mind of the victim by the concerned doctor to record her statement.
22. Ex.P.23-second dying declaration does not disclose that the Tahsildar recorded the statement, however, it shows that the same was recorded in the presence of Tahsildar and who recorded the second dying declaration of the deceased is not forthcoming and even in the second statement/dying declaration as per Ex.P.23, which is recorded by the Tahsildar, also does not disclose the endorsement regarding fit state of mind of the victim.
23. By careful reading of the material on record, it is admitted fact that the marriage of the deceased and accused No.1 took place on 28.06.2006 and the alleged incident took place on 16.07.2008. The complaint was lodged by P.W.1 and the dying declaration was recorded on 08.11.2008 and 10.11.2008. Thereby, there is a delay of three months.
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CRL.A No.1058 of 2020
24. Though learned SPP brought to our notice the evidence of P.W.1-mother of the deceased, who specifically deposed that accused persons are relatives and the accused persons requested her not to lodge any complaint since they will pay the entire medical expenses of the deceased, she has not lodged any complaint. If the fire accident occurred on 16.07.2008 and when she was admitted to the hospital why she has not made a statement before the doctor is not forthcoming. Though the complaint was received on 08.11.2008 i.e., after more than three months, P.W.1 has not disclosed about why she has not informed the concerned police or the doctor as to what happened on 16.07.2008.
25. The evidence of P.W.1 clearly depicts that the deceased- Leelavathi was very sensitive and deceased was suffering from mental depression and all the accused persons were doing coolie to meet their day to day expenses and she further stated that the accused persons is noway responsible for the death of her daughter deceased-Leelavathi. Thereby, she has partly turned hostile to the case of the prosecution. Though there was a delay in lodging the complaint and the
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CRL.A No.1058 of 2020same was explained by mother of the deceased that the accused persons are relatives of the deceased and therefore they have not lodged the complaint immediately. Within two years of marriage, the unfortunate incident happened in the house of the accused and admittedly, after fire incident occurred in the house of accused, accused Nos.1 and 2 shifted the deceased to the hospital and in the hospital, accused No.2- Jayamma-mother-in-law of the deceased was alone taking care of the deceased, which clearly depicts that the unfortunate incident occurred in the house of the accused. Thereby, the accused has to disclose as to what happened on the day of the incident. They have not adduced any evidence except accused No.1 who stated that his wife-the deceased was suffering from mental illness and she used to take the decisions suddenly without knowing the consequence. Thereby, she herself poured kerosene and lit the fire and immediately, himself, his father and his mother extinguished the fire and immediately, she was taken to the hospital and they spent towards medical expenses and taken care of the deceased. If really the alleged incident had not happened and if it was a self accident by pouring kerosene herself and lit the fire, the deceased could not have
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CRL.A No.1058 of 2020made two statements before the Tahsildar as well as before the Sub-Inspector of Police in the presence of the doctors. Though both the dying declarations/statements were not endorsed by the doctor about fit state of mind of the deceased, but has been spoken to by P.W.13 and P.W.14 that she was in a fit state of mind while recording her statement as per Exs.P.27 and 23. In the cross-examination, there is no defence to put forth to P.W.13 and P.W.14 to the effect that she was not fit state of mind. Thereby, the unfortunate incident happened within two years of marriage. Though the learned Sessions Judge proceeded to convict the accused under Section 302 of IPC, the fact remains that she died on 07.11.2009 in the native place of P.W.1 i.e., after more than one year of the incident. The same was admitted to by the parents of the deceased.
26. It is also in the evidence of P.W.18 that the treatment was given to Smt. Leelavathi upto 12.11.2008 and she was conscious and in a fit state of mind. Accordingly, he issued Ex.P.24-copy of the medical treatment sheets and on insistence made by P.W.1, he discharged Smt. Leelavathi from the hospital against the advice of the doctor and took consent letter of P.W.1 as per Ex.P.24(d). He opined in the discharge
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CRL.A No.1058 of 2020summary that he has disclosed that deceased sustained burns injuries to an extent of 30% to 37%.
27. P.W.15-Doctor who conducted postmortem of the deceased deposed that he was working as Medical Officer at P.H.C., Nelamangala during the year 2006 to 2010. On the requisition made by the Tahsildar, Nelamangala, he conducted postmortem on the dead body of Smt. Leelavathi on 07.11.2009 between 4.30 to 6.30 p.m. at the open area of Beedanapalya Village, Nelamangala Taluk. He found burn injuries on the body of Leelavathi i.e., neck, ear, chest, shoulder, hands and thigh. The burn injuries are not healed and converted into form of cancer and accordingly, he issued Ex.P.28-postmortem report.
28. A careful reading of evidence of P.W.13, who deposed that when P.W.21-Taluk Executive Magistrate submitted a requisition as per Ex.P.25, he made an endorsement stating that Leelavathi was in a fit state of mind to give statement on 10.11.2008 at 2.00 p.m. The doctor after examination of the health condition of the deceased had permitted to record the statement. Accordingly, the Tahsildar
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CRL.A No.1058 of 2020recorded the statement of the deceased as per Ex.P.23-second dying declaration of the deceased. Infact, the deceased categorically stated that, accused persons gave harassment to her to bring dowry and on the date of the incident, accused No.2 poured kerosene, accused No.1 lit the fire.
29. The evidence of P.W.13 is consistent with the evidence of P.W.21-Taluk Executive Magistrate, who specifically stated that when he was working as Tahsildar, Nagamangala Taluk, he received a requisition of Bellur police. On the requisition, he had been to Adichunchagiri hospital on 10.11.2008, interacted with Smt. Leelavath, came to know that she sustained burn injuries. When he enquired, she stated that accused No.1 to 3 gave harassment to her by demanding the dowry and on 16.7.2008 at 10.30 a.m. accused No.2 poured kerosene, accused No.1 lit the fire. As a result, she sustained burn injuries and admitted to the hospital. He recorded the said statement of Leelavathi as per Ex.P.23 and read over the contents and explained to Leelavathi-the injured and obtained her signature as per Ex.P.23(b) and he subscribed his signature as per Ex.P.23(c) and also took signature of Medical Officer as per Ex.P.23(a). The evidence of P.W.21 is also consistent with
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CRL.A No.1058 of 2020the evidence of P.W.13 with regard to Ex.P.23-second dying declaration.
30. The material on record clearly depicts that nothing has been elicited to disbelieve the statements either of P.W.13 or P.W.21 or P.W.14, P.W.17 about the incident occurred. Except the statement made by the accused in 313 (5) of Cr.P.C., neither evidence is adduced to prove that it was self humiliation by the deceased herself nor examined any defence witnesses on their behalf. The fact remains that the unfortunate incident took place in the house of the accused on 16.07.2008 and Leelavathi died in the native place of P.W.1 on 07.11.2009. Thereby, the learned Sessions Judge was not justified in convicting accused Nos.1 and 2 under the provisions of Section 302 of IPC as admittedly, at the first instance, the case was registered only under Sections 498A and 307 read with Section 34 of IPC.
31. It is evident from the evidence of P.W.18 that against medical advice given by the doctors, P.W.1-mother of the deceased discharged the deceased from the hospital on 12.11.2008 by signing the risk consent and thereafter, the
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CRL.A No.1058 of 2020deceased died on 07.11.2009 after one year in the native place of P.W.1 and thereby, there cannot be attribution by accused Nos.1 and 2 to attract the provisions of Section 302 of IPC. Thereby, the question before this Court is whether accused Nos.1 and 2 have been convicted for the offence under Section 302 read with Section 34 of IPC when the deceased died due to septicemic shock from the infection of malignant transformation of the bun scars after more than one year. Medical evidence clearly depicts that death was not due to burns but it is due to septicemic infection, which could be avoided a by a proper care by P.W.1 and injured herself.
32. Considering the dictum of the Hon'ble Supreme Court in the case of Sanjay Vs. State of Uttar Pradesh reported in (2016) 3 SCC 62 the conviction of the accused for the offence punishable under Section 302 of IPC recorded by the learned Sessions Judge is not gravity of the offence is made out and utmost the case falls under Section 304 Part I of the IPC as held by the Hon'ble Supreme Court in the case of State of U.P. Vs. Subhash reported in (2022) 6 SCC 508 at paragraph 22 has held as under:
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"22. Now, the next question, which is posed for consideration of this Court is whether respondent- accused can be convicted for the offence punishable under Section 302 IPC read with Section 149 IPC when the deceased died due to septicaemia after a period of thirty days. Considering the decision of this Court in Sanjay [Sanjay v. State of U.P., (2016) 3 SCC 62 : (2016) 1 SCC (Cri) 712] , the conviction of the respondent-accused for the offence punishable under Section 302 read with Section 149 IPC is not warranted and the case may fall within Section 304 Part I IPC."
33. Though, the incident occurred in the house of accused Nos.1 and 2 on 16.07.2008, accused No.2 denied in toto in Section 313 Cr.P.C. statement. However, accused No.1 has taken plea of alibi that the deceased is mentally ill and she herself by humiliation poured kerosene and lit fire. It is for him to prove that by giving cogent evidence. Once the prosecution proves the initial burden and when the accused taken a plea of alibi, he has to prove in view of provision of Section 103 of the Evidence Act as held by the Hon'ble Supreme Court in the case of State of Haryana vs. Sher Singh & Ors reported in AIR (1981) SC 1021 in para No.4:
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'4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:
"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
34. Taking into consideration the material evidence on record and on re-appreciation of the oral and documentary evidence, it is clear that the unfortunate incident occurred within two years from the date of the marriage i.e., on 16.07.2008 and marriage took place on 20.08.2006 and the incident occurred in the house of accused persons. In the absence of proper explanation by accused No.1 and 2, the learned Sessions Judge was justified in convicting the accused under Section 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act but not justified in convicting the accused under Section 302 of IPC.
35. On careful perusal of the material on record, clearly depicts that the unfortunate incident happened on 16.07.2008 and she died in the village of P.W.1 on 11.07.2009. Thereby,
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CRL.A No.1058 of 2020keeping in view the principles as contemplated under Section 300 of Cr.P.C., it is not a case to impose extreme punishment as contemplated under Section 302 of IPC as the death of the deceased had no nexus with the death occurred after more than one year. Thereby, the case falls under Section 300 Part I of Cr.P.C.
36. It is also relevant to state at this stage that earlier on the very charges framed under Section 498A and 307 read with Section 34 of IPC and Sections 3 and 4 of DP Act, the learned Sessions Judge by the impugned judgment of acquittal order dated 28.06.2013 acquitted all the accused persons but on the appeal filed by the State, the learned Single Judge of this Court in Crl. A. No.93/2014 dated 14.10.2019 has set- aside the acquittal order mainly on the ground that one of the evidence i.e., Dr. S.K. Subbegowda, Psychiatric Professor, who counseled and treated the deceased on 21.10.2008 would be very essential and his evidence was not considered. Thereby, the entire order was set-aside and matter was remanded.
37. Insofar as delay in filing the complaint is concerned, P.W.1 given explanation in the complaint as well as
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CRL.A No.1058 of 2020in her evidence that the accused persons are close relatives of the deceased and on the request made by them that they would bear the medical expenses and requested not to lodge the complaint, is accepted. Therefore, the satisfactory explanation has been made by the complainant and therefore, it is not the factual case of the prosecution.
38. After remand, the learned Sessions Judge convicted the accused persons under Section 302 of IPC ignoring the fact that she died after one year of the incident. Admittedly, the case was registered on 08.11.2008 on the complaint made by P.W.1. Admittedly, she died on 07.11.2009 at the native place of P.W.1. Thereby, there cannot be link with the death as the doctor specifically stated that P.W.1 discharged the injured against the medical advice by signing the risk consent. Thereby, there is attribution of negligence on the part of P.W.2 as well as the deceased. Thereby, it is not the case of the prosecution. Accordingly, point No.1 raised in the present appeal is answered partly in the affirmative holding that the accused have made out a case to interfere with the impugned judgment of conviction and order of sentence, convicting the accused for the offence punishable under Section 302 of IPC
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CRL.A No.1058 of 2020and to modify the same. Point No.2 is answered in the Negative holding that the accused have not made out a case to interfere with the judgment of conviction and order of sentence convicting the accused under Section 498A of IPC and Sections 3 and 4 of DP Act.
39. In view of the above, we pass the following:
ORDER
i) The Criminal Appeal filed by accused Nos.1 and 2 is allowed-in-part.
ii) The impugned judgment of conviction dated 17.08.2020 and order of sentence dated 19.08.2020 made in S.C. No.97/2009 on the file of the Principal Sessions Judge at Mandya, convicting and sentencing the appellants/accused Nos.1 and 2 for imprisonment of life for the offence punishable under the provisions of Section 302 of IPC, is hereby set-aside.
iii) The appellants/accused Nos.1 and 2 is hereby convicted for the offence punishable under the provisions of Section 304 Part I of IPC and sentenced to undergo simple imprisonment for a period of six years and to pay a fine of Rs.5,000/- each (Rupees Five Thousand only) and in default of
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CRL.A No.1058 of 2020payment of fine, to undergo simple imprisonment for a further period of one year;
iv) The impugned judgment of conviction, convicting the accused for the offence punishable under the provisions of Section 498 (A) of IPC and Sections 3 and 4 of Dowry Prohibition Act is hereby confirmed;
v) The appellants/accused Nos.1 and 2 are entitled to the benefit of set off under the provision of Section 428 of the Code of Criminal Procedure;
vi) All the sentences shall run concurrently.
vii) The jurisdictional Superintendent is hereby directed to release the appellants/accused Nos.1 and 2 on completion of six years imprisonment imposed by this Court (after calculation of sentence undergone by the appellants/accused Nos.1 and 2) and on payment of fine, in accordance with law, if they are not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE kcm paragraphs 1 to 12 MBM paragraphs 13 till end