Karnataka High Court
Shivappa @ Shivamani S/O. Basappa ... vs The State Of Karnataka By Inspector Of ... on 12 July, 2007
Equivalent citations: ILR2007KAR4222, 2008(3)KARLJ199, 2008 CRI. L. J. (NOC) 151 (KAR.) = 2007 (6) AIR KAR R 329 (DB), 2007 (6) AIR KAR R 329
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT
1. This appeal by the accused-1 to 3 in Sessions Case No. 148/2001 on the file of the Sessions Judge, Haveri is directed against the Judgment of conviction and sentence dated 19.11.2003 wherein the accused-appellants herein have been convicted for the offences punishable Under Section 498-A, 302 r/w. 34 of IPC., and Section-4 of the Dowry Prohibition Act r/w 34 of IPC, and sentenced to undergo imprisonment for life and to pay fine of Rs. 5000/- each for the offence punishable Under Section 302 r/w. 34 of I.P.C., in default of payment of fine to undergo R.I. for one year. To undergo R.I. for three years and to pay fine of Rs. 2000/-each, in default to undergo RI for one year for the offence punishable Under Section 498-A r/w. 34 IPC, and sentencing them to undergo imprisonment for two years and to pay fine of Rs. 10,000/- each, in default to undergo RI for one year for the offence punishable Under Section 4 of the Dowry Prohibition Act r/w 34 of IPC Both the sentences are ordered to run concurrently.
2. The essential facto of the case leading up to this appeal, with reference to the rank of the partial before the trial Court are as follows:
Accused No. 1 is the son of accused No. 2 and brother of accused No. 3; that Smt. Shankaravva, the daughter of PW.7 was married to A-1 and thereafter she went to the house of accused 1 to 3 and they were staying together in Koradur village, for leading marital life. It is further case of the prosecution that accused started demanding a sum of Rs. 20,000/- towards dowry and subjecting her to cruelty and ill-treatment; that PW.7 father of Shankaravva informed the accused that he has to perform the marriage of his two more daughters and that he would pay the amount after selling the house, but however, the ill-treatment to Shankaravva continued and that Shankaravva informed him about the ill-treatment and cruelty to which she was subjected by the accused when she came to the house of her father. About 4-5 days after her visit, he received information that Shankaravva sustained burn injuries and she was admitted to the hospital for treatment; that two days after she sustained burn injuries, he went and saw his daughter in the KMC Hospital at Hubli wherein she was shifted from Haveri General Hospital to KMC hospital at Hubli for further treatment; on enquiry, Shankaravva informed his father (PW.7) that while she was sleeping in. the house, accused No. 1 had left the house informing accused Nos. 2 & 3 to finish her and thereafter, accused No. 3 caught hold her and accused No. 2 poured kerosene and set fire to her; that the neighbor of the accused namely, Shantawwa Badigera & Ranganagouda and others came and extinguished the fire; that at the first instance, Shankaravva was taken to Primary Health Center at Hosaritti and thereafter she was shifted to General Hospital at Haveri for further treatment; that while she was taking treatment in the hospital at Haveri, the ASI., of Guttal Police station, on receipt of information, waited the district hospital at Haveri and gave requisition to the duty doctor as per Ex.P.29 requesting the doctor as to whether she was conscious and she was in position to give statement, for which, the doctor has endorsed on the said requisition as per Ex.P.29(a) stating that she was conscious and was in a position to give statement and her statement was recorded in the hospital as per Ex.P.26 which bears his signature as per Ex.P.26(d) and the left thumb impression of the deceased Shankaravva was obtained on the said statement as per Ex.P.26(a) and thereafter Shankaravva was shifted to KMC hospital at Hubli. In the meanwhile, the Taluk Executive Magistrate (PW.30), on receipt of the requisition from the police, visited the KMC hospital at Hubli and recorded statement of Shankaravva on 10.05.2001 as per Ex.P.31 in the presence of the Medical Officer PW.27 and thereafter, on 14.05.2001 Shankaravva developed breathing problem and succumbed to the burn injuries and died. After completing the investigation, charge sheet was filed against accused Nos. 1 to 3 for the offences punishable Under Section 498-A, 302, 304(B) r/w. 34 of IPC., and Section-4 of the Dowry Prohibition Act r/w. 34 of IPC,
3. On committal, the Sessions Court framed the charges against the accused for the offences punishable Under Section 498-A, 302, 304(B) r/w. 34 IPC, and Section-4 of the Dowry Prohibition Act r/w. 34 of IPC. As the accused pleaded not guilty they were tried for the aforesaid offences. In order to establish the guilt of the accused, the prosecution examined PWs. 1 to 34 and got marked Ex.P.1 to P.39, the portion of the evidence of PW.8 has been marked as Ex.D.1 and 6 material objects have been marked as M.Os. 1 to 6. The statement of the accused Under Section 313 of Cr.P.C. was also recorded. No evidence was let in on behalf of the accused. The defence of accused No. 1 is that his wife Shankaravva sustained burn injuries due to accidental fire and defence of accused Nos. 2 & 3 is one total denial of the prosecution case.
4. The trial Court, on appreciation of the oral and documentary evidence and after hearing the learned Public Prosecutor and learned Counsel appearing on behalf of the accused held that the prosecution has proved beyond reasonable doubt that the accused 1 to 3 are guilty of having committed offences punishable Under Section 498-A, 302 r/w. 34 of IPC., and Section-4 of the Dowry Prohibition Act r/w. 34 of IPC. And sentenced them as stated above by its judgment dated 19.11.2003. Being aggrieved by the said Judgment of conviction and sentence, accused Nos. 1 to 3 have preferred the present appeal.
5. Accused Nos. 1 & 3 have been represented by Smt. Suman Hegde, counsel appointed by the Legal Aid Committee and as the appeal was presented through jail, Sri. H.R. Shreedhar Advocate has been appointed as Amicus Curiae to represent accused No. 2 and assist the Court.
6. We have heard the learned Counsel Sri. H.R. Shreedhar, appointed as amicus curiae for the appellant NO. 2, Smt. Suman Hegde learned Counsel appearing on behalf of the accused Nos. 1 & 3 and the learned Additional State Public Prosecutor appearing for the respondent-State and scrutinised the material on record.
7. Having heard the contentions urged by the respective counsel, the points that arise for determination in this appeal are:
1) Whether the finding of the trial Court that accused Nos. 1 to 3 have committed the offences punishable Under Section 498-A, 302 r/w. 34 of I.P.C. is justified or calls for interference in this appeal?
2) Whether the finding of the trial Court that the accused Nos. 1 to 3 have committed offence punishable Under Section 4 of the Dowry Prohibition Act r/w. 34 of IPC, is justified or calls for interference in this appeal?
3) Whether the sentence imposed upon the accused-appellants 1 to 3 for the offence punishable Under Section 498-A, 302 r/w. 34 of I.P.C., calls for interference in this appeal?
4) Whether it is necessary to modify the order of sentence imposed on the accused-appellants?
and we answer the above points as follows:
Point No. 1: The finding of the trial Court is justifiable and does not call for interference in this appeal.
Point NO. 2. Finding is entitled to be confirmed against Accused No. 1 and that accused Nos. 2 & 3 are not guilty for the offence punishable Under Section 4 of the Dowry Prohibition Act and the finding of the trial Court is requires to be interfered with to that extent in this appeal.
Point NO. 3: partly in the affirmative, Point No. 4: Partly in the affirmative holding that accused-appellants 2 & 3 have not committed offence punishable Under Section 4 of the Dowry Prohibition Act r/w. 34 of IPC., and the findings of the trial Court is liable to be modified.
REASONS
8. Learned Amicus Curiae has taken us through the evidence of PWS.1 to 34 and the contents of the documents got marked by the prosecution as per Ex.P.1 to P39 and the portion of the statement of PW.8 which is marked as EX.D.1 on behalf of the accused. He submitted that the finding of the trial Court is not justified and the same is liable to be set aside, as the trial Court has given the finding of conviction solely on the basis of the dying declaration given by deceased Shankaravva by ignoring the other material on record that she had sustained extensive burn injuries and that she was not in a position to make her statement and there is no material to prove beyond reasonable doubt that accused Nos. 1 to 3 have committed offences for which they have been found guilty of the offence and therefore, the Judgment of conviction passed by the trial Court is liable to be set aside and that the accused are entitled to be acquitted.
9. On the other hand, Sri. Bhavani Singh, learned Additional State Public Prosecutor submitted that the finding of the trial Court that the accused Nos. 1 to 3 have committed offence punishable Under Section 498-A, 302 r/w. 34 of I.P.C., and Section-4 of the Dowry Prohibition Act r/w. 34 of IPC., is justifiable, as the prosecution has proved beyond reasonable doubt that Shankaravva was in a position to give statement and she did give her oral statement regarding the cause of injury sustained by her before PWs.7, 8, 11 & 15 as well as before the Medical Officers and the Taluk Executive Magistrate (PWs. 26, 27 & 30) as per Ex.P26 and Ex.P.31 and therefore, her oral dying declaration is consistent with that of her oral statement and that She was in a fit condition to give statement and she has given the statement voluntarily and the trial Court has found that her oral statement was in consistent with her dying declaration given before the Doctor and the Taluk Executive Magistrate and it has rightly appreciated the oral and documentary evidence on record and has held that the prosecution has proved the guilt of the accused Nos. 1 to 3 and they have committed offence punishable Under Section 498-A, 302 r/w. 34 of IPC., and Section-4 of the Dowry Prohibition Act and the said finding does not call for interference in this appeal.
10. We have scrutinized the oral and documentary evidence adduced by the prosecution with reference to the findings given by the trial court and re-appreciated the evidence on record. It is clear from the perusal of the material on record that the prosecution is relying upon the oral statement given by deceased Shankaravva before the witnesses examined by the prosecution and also the statement given by her before the Taluk Executive Magistrate (PW.30) in the presence of the doctor (PW.27) and before the Assistant Sub-Inspector of Police (PW.31) as per Ex.P.26 and Ex.P.31. It is now well settled that if the statement given by the deceased is found to be voluntary, the truthfulness of the same can form the basis of conviction and if the dying declaration is found to be satisfying the conscience of the Court as to its truthfulness and the same would not require any further corroboration, as the said principle regarding the admissibility of statement given is based upon the maxim of any person "nemo moriturus proesumitur mentiri". In a recant decision in Sundar Lal v. State of Rajasthan reported in 2007 AIR Supreme Court Weekly page-3240, the Hon'ble Supreme Court, after considering the earlier decision of the Apex Court on the subject of dying declaration fans laid, down as follows:
Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not at a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any fruiter corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is coroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles gowning dying declaration, which could be summed up as under as indicated in Smt. Pandben v. State of Gujarat ;
(i) There is neither rule of law nor of prudence that dying declaration cannot be accepted upon without corroboration.
(ii) If the Court satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased, had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could newer make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration, which suffers from infirmity, cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there ore more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.
In the case on hand, the statement given by the deceased Shankaravva will have to be considered in the light of the principles laid down by the Hon'ble Supreme Court in the above cited decision.
11. P.W.7 who is the father of Shankaravva has stated in his evidence that his daughter Shankaravva was married to accused No. 1 and accused No. 2 is the mother of accused No. 1 and accused No. 3 is the daughter of accused No. 2 and sister of accused No. 1. He has further stated in his evidence that Shankaravva was married to accused No. 1 about 2 years 4 months next before the date of his evidence (witness examined on 29.07.2003) and that their marriage was performed in a mass marriage wherein 10 marriages were performed; that after marriage, Shankaravva went to the house of the accused to lead her marital life and thereafter, she returned to his house for some time and informed that accused were demanding Rs. 20,000/- as dowry. Once accused NO. 1 and his daughter came to his house and at that time, accused No. 1 demanded Rs. 200,000/-, for which, be informed accused No. 1 that he has to perform marriage of his two more daughters and after their marriage is performed, he would sell the house and give Rs. 20,000/-as demanded by accused No. 1; that said amount was demanded by A-1 after one and half month after the marriage; that Shankaravva informed him about the cruelty and ill-treatment given by accused No. 1 and his mother Accused No. 2 and her daughter accused No. 3 in connection with the demand of dowry of Rs. 20,000/- and requested him pay Rs. 20,000/- to the accused; that about 4-5 days after his daughter went to the house of the accused, he informed his daughter that he will arrange for payment of Rs. 20,000/- after the marriage of his two daughters by selling the house; that he received information to the (c)Sect that Shankaravva had sustained burn injuries and she had been admitted to Hosarittige hospital and thereafter she was shifted to district hospital at Haveri; that as he was working at Gadag at that time, two days after getting information about his daughter sustaining burn injuries, he went to the K.M.C., hospital at Hubli and saw that his daughter had sustained burn injuries all over the body, except fingers and her face; that she was conscious and in talking condition; that when he inquired with his daughter in the hospital, she informed him that on the date of incident, she was sleeping in the kitchen, accused Nos. 2 & 3 were sleeping in the padasala and that accused No. 1, while going out of the house had instructed accused Nos. 2 & 3 to finish her by pouring kerosene and setting fire and accordingly accused No. 3 came and caught hold her, accused NO. 2 poured kerosene on her body and set fire to her body by lighting match stick; that her neighbor namely, Shantavva Badigere and Ranganagouda came and poured water and extinguished fire and arranged to take her to the hospital; that his daughter was in K.M.C. hospital at Hubli for 5 days and thereafter she died; the Tahsildar has recorded statement, before whom, he has stated that his daughter died 4 months 10 days after her marriage with A-l. It is elicited in his cross-examination by the counsel appearing for the accused that police have recorded his statement and he has stated before the police that the fingers and face of his daughter has not been burnt. He has stated before the police that face of his daughter had become black but she had not sustained any bum injuries on her face and linger. A-1 owns 2 acres of land and he does coolie work also, when he had gone to the house of the accused to see his daughter informed him about the ill-treatment given to her by the accused, but he has not lodged any complaint regarding the ill-treatment given to his daughter; his daughter had been given tablets and injection. The suggestion put forth by the defence that his daughter had become unconscious and she was not in a position to give statement before him has been denied by him. Further, the other suggestions that his daughter sustained injuries due to accidental fire and that accused Nos. 1 & 2 were alone staying in the house and other accused was not staying in the house is also denied by him.
12. PW.8 Muthamma Mahadevappa who is the neighbor of the house wherein the accused and Shankaravva were staying has stated in her evidence that her house is situated by the side of the house of the accused. The father of the accused No. 1 is staying in another place and that she knew Shankaravva. She has further deposed that about 2 years next before the date of her evidence (witness examined on 29.07.2003), Shankaravva came out of the house having sustained burn injuries and at that time she was sleeping on the katta of her house and herself and C.W. 15 (PW.9), CW. 17 (Pw.10), CW. 20 and others had assembled near the house of the accused and Shankaravva informed before them that Accused Nos. 2 & 3 have set her fire by pouring kerosene and they poured water and extinguished fire; that there was no burn injuries on the face of Shankaravva and she sustained burn injuries on the back and chest. She has identified M.Os. 2, 3 & 5 as clothes of Shankaravva which were worn by her at the time when she sustained burn injuries and they were seen by them. She further deposed that Shankaravva lived happily with the accused for about 15 days after her marriage and thereafter, she was subjected to cruelty and ill treatment by demanding dowry by the accused. It is elicited in the cross-examination of this witness that there are 4-5 houses near the house of this witness and that the house of accused No. 1 to by the side of her house i.e., left aide of her house. She has stated that Shankaravva had not sustained injuries to her fingers. She has denied the suggestion that Shankaravva has not mode any statement before them and she was not in a position to make statement and that she was deposing falsely to help the prosecution, though she does not have any knowledge about the incident.
13. Pw.9 (cw.15) Ranganagouda has corroborated the evidence of Pw.8 and he has stated in his evidence that they saw Shankaravva coming out of the house with burn injuries. He informed the father of Shankaravva on phone. According to the prosecution, he is the witness before whom, also Shankaravva gave her oral statement for the cause of burn injuries sustained by her. However, he has not stated so in his evidence and he has not supported the case of the prosecution and nothing has been elicited in the cross-examination to support the case of the prosecution. PW. 10 before whom, according to the prosecution, Shankaravva had given oral statement regarding cause of burn injuries has also not supported the case of the prosecution and he has been treated as hostile and nothing has been elicited in his cross-examination to support the case of the prosecution.
14. PW.11 Veeranagouda Shambulinganagouda Patil is the relative of mother of Shankaravva i.e., the mother of Shankaravva was his paternal aunt. He has stated in his deposition that Shankaravva was married to accused No. 1, accused No. 2 is mother of accused No. 1 and accused No. 3 is the sister of accused No. 1. He further deposed that accused were subjecting Shankaravva cruelty and ill-treatment in respect of demanding dowry of Rs. 20,000/- and that they had requested the accused not to give ill-treatment to Shankaravva, about 8 days thereafter, he received telephone regarding the injuries sustained by Shankaravva and went to the hospital at Hosaritti and saw that Shankaravva had sustained burn injuries all over the body except her face and fingers. He asked Shankaravva at Hosaritti hospital as to what had happened and she informed him that accused No. 3 caught hold her and accused No. 2 poured kerosene and set fire to her and thereafter she was taken to district hospital at Haveri for further treatment. It is elicited in his cross-examination that he had gone to the house of Shankaravva; that Shankaravva was treated cordially for about one month after her marriage and that Shankaravva had come to the house of her father three times and she had complained about the ill treatment given by the accused. It is further elicited in his cross-examination that Shankaravva was taken to the hospital in a vehicle. He has volunteered that Shankaravva was in a position to talk and she was shifted to KMC hospital at Hubli from district hospital at Haveri for further treatment, since her condition become critical and he has denied the suggestion that Shankaravva had lost consciousness and that she was not in a possession to talk and that he is deposing falsely as he is related to Shankaravva.
15. PW.12 is the owner of the tractor in which Shankaravva was shifted to Primary Health Center at Hosaritti and it is elicited in his cross-examination that he does not remember as to whether Shankaravva was in a talking condition as there were many people assembled around her, PW. 13 is the person from whose house telephonic call was made to the relatives of Shankaravva. PW. 14 has spoken about the marriage of Shankaravva with accused No. 1.
16. PW.15 who is the maternal uncle of Shankaravva and has deposed in his evidence that when he went and saw Shankaravva, she had sustained burn injuries and she informed him that on the date of incident while going out of the house, accused No, 1 informed the accused Nos. 2 & 3 to finish her by pouring kerosene and setting fire and thereafter, accused No. 3 caught hold of her and accused No. 2 poured kerosene on her and set fire by lighting match stick. Shankaravva died 4-5 days after she sustained to injuries in the K.M.C. hospital at Hubil He has further deposed that Shankaravva had come to his house 3-4 days prior to the date of incident along with accused No. 1 and thereafter incident had taken place. It is elicited in his cross-examination that the incident had occurred about 4-5 days after accused No. 1 and Shankaravva had come to his house. He has denied the suggestion that Shankaravva was not in a position to give her statement and that he is deposing falsely as he is related to Shankaravva. Nothing contra has been elicited in the cross-examination of PWs.7, 11 & 15 to disbelieve their deposition with regard to oral statement made by Shankaravva about the injuries sustained by her and she was in a position to give statement. Therefore, their evidence inspires the confidence of this Court about the truthfulness of the oral statement made by Shankaravva before these witnesses. Apart from all these oral testimony of PWs.7, 8 11 & 15, the evidence of PW.26 who was working as Medical Officer in the District hospital at Haveri shows that Shankaravva was conscious when she was brought to the hospital and she was in a position to talk at the time of recording her statement as noted in the M.L.C. register as per Ex.P.28. Therefore, it is clear that the prosecution has proved beyond reasonable doubt that Shankaravva made oral statement regarding cause of burn Injuries sustained by her before PWs. 7, 8, 11 & 15 and the statement of the above witnesses is consistent and as all of them have categorically stated that Shankaravva stated before them that accused No. 1 went out of the house on the previous night asking accused Nos. 2 & 3 to finish of Shankaravva and thereafter accused No. 3 caught hold of her and accused No. 2 poured kerosene on her and set fire by lighting match stick.
17. Further, the prosecution is able to establish the fact that the deceased Shankaravva was conscious and she was in a fit condition to give statement through ocular evidence of the A.S.I., (PW31), the Taluk Executive Magistrate (PW.30) and the Doctor (PW.28) who have recorded the statement of Shankaravva as per Ex.P.26, Ex.P.31. PW.26 is the Medical Officer at Government Hospital at Haveri has stated in his evidence that he had received requisition from the police as per Ex.P.29 requesting him to state as to whether Shankaravva was in a position to give statement, on which, he endorsed as per Ex.P.29(a) stating that she was in a fit condition to give statement and he has produced M.L.C. register as per Ex.P.28 which shows that Shankaravva was conscious and that Guttal police have recorded statement of Shankaravva in his presence on which, the left thumb impression of deceased Shankaravva was taken as per Ex.P.26(a) and the same bears his signature as per Ex.P26(b). The Assistant Sub-Inspector of Police (PW.31) who has recorded the statement of Shankaravva as per Ex.P.26 has deposed that on receiving information from the police out post about the fact that Shankaravva had sustained burn injuries and she had been shifted to District hospital at Haveri, he went to District hospital at Haveri and made enquiry with the Medical Officer (PW.27) as to whether she was in a position to give statement and recorded her statement as per Ex.P.26. He has denied the suggestion in his cross-examination that Shankaravva sustained extensive burn injuries and therefore, she was not in a position to give statement and that he was deposing falsely and that Shankaravva has not given her statement before him as per Ex.P.26. Except making such suggestion to PW.31, which is denied, nothing contra has been elicited in the cross-examination of this witness to discard his evidence to the effect that he went to the hospital at Haveri and inquired with the Medical Officer as to whether Shankaravva was in a position to give statement and after confirming that she was in a fit condition to give statement, he has recorded her statement as per Ex.P.26 and therefore, the prosecution has proved beyond reasonable doubt that Shankaravva gave statement before PW.31 in the presence of the doctor PW.26 wherein she has stated that she was subjected to cruelty and ill-treatment in connection with demand for dowry and that on the date of incident her husband (accused No. 1) went away from the house instructing his mother and sister (accused Nos. 2 & 3) to finish her by pouring kerosene and setting fire and thereafter, accused No. 3 caught hold Shankaravva and accused No, 2 poured kerosene and set fire by lighting match stick.
18. Further, it is clear from the evidence of the Taluk Executive Magistrate (PW.30) who, on receipt of requisition from the police also visited the K.M.C. Hospital at Hubli and recorded the statement of Shankaravva as per Ex.P.31 in the presence of the Medical Officer (PW.27). The Taluk Executive Magistrate has stated in his evidence that on 10.05.2001, Shankaravva was in a position to give statement when he mot the Medical Officer in the ward and the Medical Officer examined Shankaravva and he informed that she was in a position to give statement and her statement is recorded in the presence of the doctor as per Ex.P.31 on which the doctor has signed as Ex.P.31 (c). Nothing has been elicited in the cross-examination of the Taluk Executive Magistrate to disbelieve his evidence regarding making statement as per Ex.P.31. The only suggestion made to him is that Shankaravva was not in a position to give statement and Shankaravva has not given her statement has been denied by this witness.
19. The Medical Officer who was working in K.M.C. hospital at Hubli has been examined as PW.27. He has deposed in his evidence that on enquiry made by the Tahsildar as to whether Shankaravva was in a position to give statement, he has examined Shankaravva and informed the Tahsildar that she was in a position to give statement He has stated in his deposition that Shankaravva gave statement as per Ex.P.31 and the same was recorded in his presence and he has also signed the statement and he has produced the case sheet as per Ex.P.32. It was elicited in his cross-examination that he has not specifically mentioned In Ex.P.31 that Shankaravva was in a position to give statement. He has identified Ex.P.31(a) as the left thumb impression of Shankaravva. It was further elicited in has crores examination as to whether Taluk Executive Magistrate asked him as to whether Shankaravva was in a position to give statement end that it was mentioned in Ex.P.32 that Shankaravva sustained 90 to 95% burn injuries. He has denied the suggestion that a person who sustained more than 70% burn injuries would not be in a position to give any statement. Thus it is clear from the evidence of PW.27 that he has examined Shankaravva and informed the Taluk Executive Magistrate PW.30 that Shankaravva was in a position to give statement and thereafter the Taluk Executive Magistrate has recorded statement of Shankaravva in the presence of the Medical Officer. In view of the categorical evidence of PW.27 the Medical Officer and the evidence of the Taluk Executive Magistrate (PW.30), the prosecution has proved beyond reasonable doubt that Shankaravva gave statement as per EX.P.31 before the Taluk Executive Magistrate.
20. The contention of Smt. Suman Hegds, learned Counsel appearing for accused Nos. 1 & 3 that when the material on record show that Shankaravva sustained 90 to 96% burn injuries, she was not in a position to give statement and therefore, the oral dying declaration said to have been given before the witnesses PWs, 7, 6, 11 & 15 and the statement given before PWs.27, 30 and 31 as per Ex-P.26 & 31 is highly improbable and the prosecution has not proved that Shankaravva was in a position to give statement before PWs. 31 & 30, as spoken to by them in their evidence cannot be accepted.
21. It is clear from the evidence of the Tahsildar and other material on record particularly, the Medico Legal Case register attract recorded at the first instance by PW.28 as per Ex.P.33 wherein it is mentioned that Shankaravva sustained 60% burn injuries and she was conscious at the time of admission and after giving preliminary treatment, she was shifted to District Hospital at Haveri. Further, Ex.P.28 which is the extract of the M.L.C. register maintained at District Hospital at Haveri clearly reveals that Shankaravva who has been referred to the district hospital from the Primary Health Center at Hosaritti at 5.25 a.m. on 10.05.2001 had sustained 78% burn injuries. PW.26, the doctor working at PHC., Hosaritti who treated the deceased Shankaravva at the first instance and who issued Ex.P.28 has stated in his evidence that Shankaravva was conscious and she was in a position to give statement. Further Ex.P.29 the requisition given by the Police to PW.26 Doctor. C.C. Angadi clearly show that the doctor has endorsed on it that she was in a position to give statement as per Ex.P.29(b) and he has also signed on the said requisition.
Further, the case sheet maintained by KMC., hospital at Hubli also show that the condition of Shankaravva detonated on 14.05.2001 as she (Sic) developed breathing problem and the died on 14.06.2001 at about 6.50 p.m. Wherefore, it is clear from the above documents produced by the prosecution and an spoken to by the witnesses also corroborates the evidence of the doctor PW.26 that Shankaravva was in a position to give statement and also the evidence of the Doctor PW.27 who was also stated that Shankaravva was in a position to give statement. Therefore, the contention of the learned Counsel appearing for accused Nos. 1 & 3 that Shankaravva was not in a position to give statement since she had sustained 95% burn injuries cannot be accepted. On the other hand, the oral statement given by the deceased Shankaravva before witnesses PWs.7, 8, 11 & 15 and the statement recorded by the ASI., (PW.31) and the Taluk Executive Magistrate (PW.30) as per Ex.P.26 and Ex.P.31 respectively conclusively proves that the prosecution has proved beyond reasonable doubt that deceased Shankaravva was in a position to give statement and the said evidence inspires the confidence of this Court about the truthfulness of the statement. Having regard to the fact that prosecution has proved beyond reasonable doubt that Shankaravva was in a position to give statement and the statement given by her is believable, no further corroboration is required to bring the guilt of the accused.
22. It in also contended by the learned Counsel appearing for accused Nos. 1 & 3 that accused was not present at the time of incident and therefore, he cannot he held guilty for offience punishable Under Section 302 of I.P.C. There is no merit in this contention also, as we have already held that the evidence of PWs. 7, 11 & 15 coupled with medical evidence that Shankaravva was in a position to give statement and her statement has been recorded as per Ex.P.26 & 31 wherein the deceased has clearly stated that her husband (accused No. 1) instructed accused Nos. 2 & 3 to finish her by pouring kerosene and setting fire and that evidence inspires the confidence of this Court regarding the truthfulness of the statement and that the statement given by the deceased would clearly show that it is accused NO. 1 who had gone out of the house during the previous night by telling accused Nos. 2 & 3 to finish Shankaravva by pouring kerosene and setting fire.
23. In view of oral statement of deceased Shankaravva made before PWs.7, 11 & 15 coupled with the evidence of PWs.26, 27, 28, 30 and 31 and on re-appreciation of the above material on record we find that the trial Court, on appreciation of the material on record in a proper perspective comes to the right conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubts and that the accused-appellants herein have committed the offence punishable Under Section 498-A, 302 r/w 34 of I.P.C. On re-appreciation of the material on record we hold that the trial court is justified in coining to such conclusion and we do not find any reasons to interfere with said findings. Accordingly, we answer point No. 1 by holding that the finding of the trial Court is justified and does not call for interference in this appeal.
24. Point No. (2): The finding of the trial Court that accused Nos. 2 & 3 are guilty of the offence punishable Under Section 4 of the Dowry Prohibition Act r/w. 34 of IPC., cannot be sustained, as, it ii clear from the material on record, as could be seen from the evidence of PW.7, the father of the deceased, According to this witness, it is the accused No. 1 the husband of Shankaravva alone came to his house and demanded Rs. 20,000/- as dowry and there in no averments in the complaint about the demand made by the accused Nos. 2 & 3 or that they had instigated the accused No. 1 to demand dowry of Rs. 20,000/-. Them is no other material on record except the oral testimony of PW.7 to the effect that accused Nos. 1 & 3 have demanded the dowry from PW.7. Pws.11 & 15 also do not speak about dowry demanded by accused Nos. 2 & 3. Therefore, the finding of the trial Court that accused Nos. 2 & 3 are guilty of the offence punishable Under Section 4 of the Dowry Prohibition Act is liable to be set aside and we hold that they are entitled to be acquitted for the said offence and we further hold that accused No. 1, the husband of the deceased alone is guilty for the offence punishable Under Section 4 of the D.P. Act. To that extent, the finding of the trial Court is liable to be modified. Accordingly, we answer the point No. 2.
25. Point Nos. 3 & 4: In view of our finding on point Nos. 1 to 3 that the order of conviction passed by the trial Court against accused Nos. 2 and 3 of having committed the offence punishable under Section 4 of the Dowry Prohibition Act read with Section 34 IPC., is liable to be set aside, the question of sentencing the accused Nos. 2 and 3 for the said offence does not arise and wherefore, the sentence imposed upon accused Nos. 2 and 3 for the offence punishable under Section 4 of the Dowry Prohibition Act read with Section 34 IPC., is liable to be set aside. However, in view of our finding on points 1 to 3, it is clear that accused Nos. 1 to 3 are to be sentenced for the offence punishable under Sections 498-A and 302 IPC, read with Section 34 IPC and accused No. 1 is to be further sentenced for the offence punishable under Section 4 of the Dowry Prohibition Act read with Section 34 IPC.
26. The trial Court has sentenced accused Nos. 1 to 3 to undergo imprisonment for life and to pay a fine of RS. 5,000/- each, and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 302 IPC., read with Section 34 IPC. Further, accused Nos. 1 to 3 have been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 496-A IPC., read with Section 34 IPC., and accused No. 1 has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 4 of the Dowry Probation Act read with Section 34 IPC.
27. Having considered the contentions of the learned Counsel appearing for the appellants-accused and the learned State Public Prosecutor, it is clear that the trial Court, having found that the offence punishable under Section 302 IPC., read with Section 34 IPC., committed is the present case by accused Nos. 1 to 3 is not one of the rarest of the rare oases attracting death penalty, ham rightly sentenced the accused Nos. 1 to 3 to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, and in default of payment of fine, to undergo rigorous imprisonment for one year and wherefore, the sentence as also the fine amount imposed upon accused Nos. 1 to 3 for the offence punishable under Section 302 IPC., read with Section 34 IPC., is entitled to he confirmed. The trial Court has also sentenced accused Nos. 1 to 3 to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 496-A IPC., read with Section 34 IPC., and has ordered that the sentences shall run concurrently and wherefore, the sentence as also the fine amount imposed on accused Nos. 1 to 3 for the offence punishable under Section 496-A read with Section 34 IPC., cannot also be said to be excessive as to call for interference in this appeal. The sentence imposed upon accused No. 1 for the offence punishable under Section 4 of the Dowry Prohibition Act read with Section 34 of IPC., to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- cannot also be said to be excessive as the said sentence is also to run concurrently with the sentence imposed for the offence punishable under Section 302 IPC., and accordingly, we answer point No. 3 and 4 and pass the following Order:
28. The appeal is allowed in part. The judgment of conviction and sentence dated 19.11.2003 pasted by the Court of Sessions Judge, Haveri, against the appellants accused Nos. 1 to 3 in S.C. No. 143/2001 of having committed the offience punishable under Section 498-A and 302 IPC., read with Section 34 IPC., is confirmed. The judgment of conviction and sentence passed against accused No. 1 (appellant No. 1) for the offence punishable under Section 4 of the Dowry Prohibition Act read with Section 34 IPC., is confirmed. The finding of conviction passed against accused Nos. 2 and 3 of having committed the offence punishable under Section 4 of the Dowry Prohibition Act read with Section 34 of IPC., is set aside and accused Nos. 2 and 3 are acquitted of the said offence.
The assistance rendered by the learned Counsel appointed as Amicus curiae is placed on record and his fee is fixed at Rs. 5,000/- (Rupees Five Thousand).