IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 8 t[1 DAY OF DECEMBER 2011 PRESENT THE HON’BLE MRJUSTICE MOHAN SHANTANAGOUDAR PN 1) THE HON’BLE MR.JUSTICE RAVI MALIMATH CRIM IN 2006 C/W CRIMINAL APPEAL NO2880/2O1 I 816 2006 BETWEEN: 1. NASEERAHAMMAD, 5/0 SHABBIRAHAMMAHAD KAMATG1 AGED ABOUT 25 YEARS, 0CC: TRUCK DRIVER, RIO TAJANAGAR HUBLI, DIST, DHARWAD. 2. MUNEERAHAMMED Sb SHABBIRAHAMMAD KAMATGI AGED ABOUT 23 YEARS, 0CC: STUDENT DO. 3. S SMT. NOORAJAN. W/0 SHABBIRAHAMMED KAMATGJ AGED ABOUT 40 YERS, OC: HOUSEHOLD WORK, D0 •1’- [BY SRI. V.M. BANAKAR, ADDL. SPP] THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. BY THE ADVOCATE FOR ThE APPELLANTS AGAINST THE JUDGMENT DATED 15.3.06 PASSED BY ThE I ADDL Si., DHARAD, SiniNG AT HUBU, IN S.C.NO.71/05 CONVICTING THE APPELLANTS/ACCUSED NOS.1 TO 3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A RJW SEC. 34 OF IPC AND UNDER SECTIONS 3 AND 4 OF D.P. ACT AND SENTENCING THEM TO UNDERGO S.I. FOR A PERIOD OF ONE YEAR AND THEY SHALL PAY A FINE OF RS.1,000/- EACH FOR THE OFFENCE PUNISHABLE UNDER SECTION 498- A RR/W 34 OF IPC I.D., OF FINE THEY SHALL UNDERGO S.I. FOR 3 MONTHS AND FURTHER SENTENCING THEM TO UNDERGO S.I. FOR A PERIOD OF ONE YEAR AND THEY SHALL PAY A FINE OF RS.2,000/- EACH FOR THE OFFENCE P/U/S 3 OF THE D.P. ACT AND I.D., OF SAID FINE THEY SHALL UNDERGO S.I. FOR 3 MONTHS AND FURTHER SENTENCING THEM TO UNDERGO S.I. FOR A PERIOD OF 3 MONTHS AND THEY SHALL PAY FINE OF RS.500/- EACH FOR THE OFFENCE P/U/S 4 OF D.P. ACT I.D., OF FINE THEY SHALL UNDERGO S.I. FOR A PERIOD OF 3 MONTHS. THE SUBSTANTIAL SENTENCES OF IMPRISONMENT SHALL RUN CONCURRENTLY. IN CRL.A.NO.2880/2011 BETWEEN: SHAKEELABANU W/O ABDULMAHID AGED ABOUT 36 YEARS WA BENKIGA NEAR KANNADA SCHOOL HARIHAR DAVANGERE DISTRICT. .. APPELLANT (BY SRI. M.R. MULLA, ADV.) :3: AND: 1. NASERAMMAD, AGED ABOUT 24 YEARS, S/I SHABBIRAHAMMAD RIO TAJANAGAR, HUBLI. 2. MUNEERAHAMMED, AGED ABOUT 22 YEARS, 5/0 SHABBIRAHAMMED R/O TAJANAGAR, HUBLI. 3. SMT. NOORAJAN KOM, AGED ABOUT 40 YEARS, 5/0 SHABBIRAHAMMED R/O TAJANAGAR, HUBLI. 4. STATE OF KARNATAKA BY VIDYANAGAR POLICE STATION REPRESENTED BY ThE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, HIGH COURT, BANGALORE 560 001. .. RESPONDENTS (BY SRI. K.M. SHIRALLI, ADV. FOR R-1 TO 3. THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 CR.P.C. PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SESSIONS JUDGE, IN ACQUL i I iNG RESPONDENTS 1 TO 3 FOR OFFENCE PUNISHABLE UNDER SECTION 304-B AND 203 IPC AND CONSEQUENTLY CONVICT ThEM OF THE ALLEGED CHARGES AND ETC., THESE CRIMINAL APPEALS ARE COMING ON FOR HEARING THIS DAY, MOHAN SHANTANAGOUDAR .7., DELIVERED THE FOLLOWING: -. 4 U 0 w 0 U cn . Q CD D 3 -r 0. fl C :4 - 0. CD £J CD -( J (0 CD 0 0. UI 0 z ) r m C 5 - - U) 1) D CD j o CE) c, CU CD CU CD Z UI z n CD t 01 UI CD 0 U) UI , O - CD CU z 0 V CD (C) 0 0 w 0 c 0. 0 - C) C 4h 0 CD a CU - 0. (0 0 03 Ct) (C - 0 0 - CD CD 0 CD 4 ‘ CD & 0. CO c: Q CD o. 0 0 Cu 8 0. U) Zh 0. CD 0 ‘ CD 0. ‘ t D(0fl< 0. C D 5 0 CD 0 . C 0 0. 5 2 0 CD UI CD <U CU :i Cl -4 ‘ 0 0 C ) V CU 0 3 0 CC V CD r 0 (0 CD 0) < CD > 0 CU 0 < 01 UI 0 () < CD UI 0 0 2 - CD CD — 0. > 0 0 0 ç CD 11 00) CD CD - W — U) 3 0. £1 -‘ CD CT 0 j CD (U CX) r (ii C) C) 0. C) ,-r CD CD C) 0 0. —r c - 3 CD 0 CT -r (-. C 0. o Cl) 0. U) CD 0 CD Cl) CU CD -‘ U) 0. 4- :5: mother of accused Nos. 1 and 2. The marriage between accused No.1 and the deceased was performed on 09/06/2002. Marriage talks were held before solemnisatlon of marriage in the presence of elderly persons. It was decided that PWs.1 and 4(parents of the deceased) should pay a sum of t25,000/- towards dowry and 2½ tola of gold, a watch and other articles. The parents of the deceased agreed that a sum of ?15,000/- and 2½ toia of gold will be given at the time of marriage and balance amount of flO,000/- will be paid subsequently after the marriage. On the date of marriage I.e. on 09/06/2002, PWs. 1 and 4 paid a sum of Z15,000/- and 2½ toia goid, one gold ring etc. to the accused. After the marriage, the couple lived happily for about six months in matrimonial house. In the meanwhile, the deceased became pregnant. The victim went to her parental house for delivery and told PWs.1 and 5 that the accused are demanding the balance amount of dowry as agreed and that the accused allegedly warned PW5.1 and 4 not to visit the house of the accused. The deceased delivered a female baby. After about one month, again the accused picked up quarrel in connection with payment of ‘I’ balance amount of dowry Such dispute was placed before Jamayat and the accused were properly advised by the Jamavat In spite of the sime hararsment ont nued When such being the state of affairs PW 12 informed PWsJ and 4 that the deceased has sustained burn injuries and was admitted to KIMS Hospital, Hubli Immediately after receiving the information, PWs 1 and 4 along with their relatives rushed to the hospital and found the deceased lying unconscious because of extensivt burns sustained by iwr On enquiry the accused told PWs 1, 4 and other elatives that the victim accidentally caught fire while lighting the stove The n dent occurred 3t ab rt OMO m n 22/06/2004 At 8 30 m 24 06 004 th do ased br athe e a,t die e i e h r afte epIc’ t 3CC e dged e e r et :7: material objects. Two portions of the statements by the prosecution witnesses were marked as Exs.D-1 and D-2. The trial Court on evaluation of the material on record and after hearing, convicted the accused for an offence under Section 498-A of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act. The accused are acquitted for the offences under Sections 304-B and 203 of the Indian Penal Code. Questioning the Impugned judgment and order, these two appeals are filed. 5. Sri. Shiralll, learned advocate appearing on behalf of the convIcted accused submits that there Is inordInate delay in lodgIng the complaint Inasmuch as the complainant and her relatIves had come to the hospital Immediately after healing the news on 22/06/2004; that they were all through present In the hospItal along with the injured till her death; In spIte of the same, neither the complaInant nor any of the relatIves have lodged the complaInt against the accused. According to him, if really, the accused have committed the offence of abetment of commission of suIcide, the parents of the deceased would not :8: have failed to lodge a complaint immediately after coming to the hospital and after seeing the victim, more particularly, when the police out post is situated in the hospital wherein the victim was admitted; that the history recorded by the doctor in the case sheet as well as in the MLC register is that the burns were due to accidental fire; that the prosecution witnesses, more particularly, PWs.1, 4 to 6 have improved their versions before the Court relating to demand and payment of dowry; such improvements are proved by the defendants by confronting the Improvements to the concerned investigating officer; that the Yadi(ilst of articles given as dowry during the marriage) allegedly prepared during the talks of marriage Is not forthcoming from the record; the reasons assigned and the conclusion arrived at by the Court below while convicting the accused are not proper and correct; absolutely no allegations are found against accused Nos.2 and 3, whIch itself goes to show that the entire case as made out by the prosecution is false; the accused themselves have admitted the victim to the hospital which itself clearly reveal that they are not instrumental for 09 (a : j. 3g 03 a5 — V Ro a S as 2m a a — ) I ‘V to 1. a “< a a a :10: imagination, it cannot be said that the injuries sustained by the deceased are accidental in nature. Since the presumption is in favour of the prosecution and the said presumption is not rebutted, according to him, the accused are liable to be convicted for an offence under Section 304-B of the Indian Penal Code also. 7. Sri. Banakar, learned Additional State Public Prosecutor supports the arguments of Sri. M.R.Muiia, learned advocate. 8. Learned advocates on record have taken us through the material on record Including the judgment of the Court below. It Is not in dispute that the victim has sustained burn injuries at about 11.00 a.m. on 22/06/2004 in the matrimonial house wherein all the three accused were living with the deceased. According to the defence, the injuries sustained by the victim were accidental inasmuch as the stove got burst when the victim was preparing tea. According to the prosecution, the victim committed suicide as she couid not tolerate the ill-treatment against her by the accused by setting herself ablaze after pouring kerosene. V :11: 9. ImmedIately after the incident, at about 11.OOa.m. on 22/06/2004, the victim was admitted to KIMS Hospital, Hubli for treatment. The doctor PW-8 has admitted the victim to the hospital. The history recorded by him at the time of admission Is that of accidental burns. The patient was admitted to the hospital at 11.45 a.m. and immediately treatment was commenced by another doctor PW-7. Both the doctors PWs.7 and 8 have mentioned in the registers maintained by them that the victim has sustained 98-100% burns all over the body. However, the case sheet maintained by the said doctors reveal that the victim at the time of admission and at the initial treatment was conscious, oriented and co-operated. However, no records are forthcoming as to whether the victim was in a position to speak or not. The medical case sheet Ex.P-5 reveals that Immediately after the admission, information was sent to the police station. Immediately after receiving such an information PW-14, the head constable came to the hospital and gave a requisition to the doctor seeking permission to record the dying declaration. Copy of the requisition is found 12: at Ex.P-5. In this context, It Is argued by the defence counsel that the police after seeing the health condition of the deceased, was of the opinion that she is able to give a statement. However, the doctor PW-8 on seeing the condition of the victim has negatived the request of the police for recording the dying declaration. But another doctor, PW-9 has opined that the victIm was not in a position to give statement, therefore, the dying declaration of the victim is not recorded. However, Exs.P-5 and 6 MLC register and medical case sheet maintained by the doctors PWs.8 and 7 respectIvely reveal the history of accidental burns. On this aspect of the matter, both the doctors PWs.7 and 8 were cross-examined by the defence counsel at length. Doctor PW-8 has deposed that the history recorded by him in Ex.P-5 was as per the information given to him by accused No.3- mother-in-law of the deceased at the time of admission. Thus, according to him, accused No.3 informed that that the victim has suffered accidental burns. However according to. doctor PW-7, he has recorded the history as furnished by the deceased. In the cross-examination he admits that the patient herself has furnished the information and such 1% :13: information is noted by him in page No.2 of medial case sheet Ex.P-5. 10. From the above it is clear that two different versions are forthcoming from the record by two different doctors. Both the doctors have seen the patient at 11.45 a.m. on 22/06/2004. PW-7 has treated the victim till her death. The case sheet maintained by him is at Ex.P-5. According to him, the patient herself has furnished the information of accidental bums. 11. We are conscious of the fact that the deceased might not have been In a position to give her statement after the accidental injuries, inasmuch as she has suffered 98-100% bums all over the body. Hence, in our considered opinion, it was not possible for the victim to give such a statement before the doctor PW.7. At the same time, we cannot ignore the statement of PW-7 who treated the victim Immediately after admission to the hospital. The medicai records Exs.P-5 and 6 cieariy reveal that the victim was conscious, oriented and cooperative. Since the Doctor who treated the victim has deposed before the Court that the ‘1’ 14: victim herself gave Information relating to accidental burn Injuries and as there Is nothing on record to show that the doctor is biased In favour of the accused or against the deceased, the trial Court has given the benefit of doubt In favour of the accused by concluding that the vIctim has suffered accidental burns. 12. Admittedly there are no eyewitnesses to the Incident in question. PW5.1, 4 to 6, 10 and 12 visited the hospital after hearing the news. None of the neighboring witnesses are examined before the Court. Scene of offence panchanama Ex.P-3 though Is recorded after 3 days after the Incident, discloses the kerosene stove and kerosene can at the scene of offence. 13. We find that the reasons assigned by the Court below while coming to the conclusion that the victim has suffered accidental burns are well supported by the material on record. The reasons assigned cannot be said to be erroneous under the facts and circumstances of the case, more particularly in view of the evidence of the doctor PW-7 relating to the history furnished by the victim herself. :15: 14. It is further case of the prosecution that the accused demanded dowry In the marriage talks held prior to the marriage and accordingly 25,0OO/- was agreed to be paid by the parents of the deceased to the accused. However, It was agreed by PWs.1 and 4 that an amount of t15,000/- would be paid at the time of marriage and remaining amount of flO,000/- would be paid after the marriage. During the course of evidence, the prosecution witnesses PWs.1, 4, 5, 6, 10 & 11 have deposed that flO,000/- was paid prior to the marriage and Z5,000/- was paid after the marriage to the accused towards dowry for satisfying the demand of the accused. The consistent version of all the aforementioned witnesses before the Court below Is that accused demanded ?15,000/- and accordingly, ?1O,000/- was paid at the time of marriage and remaining amount of ?5,000/- was paid after the marriage. But, this portion of the deposItion of PWs.1, 4, 5, 6, 10 & 11 Is clearly an improvement before the Court, Inasmuch as, they have not stated these facts before the police. Though the aforementioned witnesses have asserted that they have ‘p :16: stated so before the police during the course of investigation, the investigating officers PWs.22 and 23 have admitted that the witnesses have not stated before them about the demand and payment of dowry of Z1O,000/- + ‘5,000/- respectively prior to the manlage and after the marriage. The Improved versions are confronted to the investigating officers and the Investigating officers have agreed to the suggestions of the defence that these portions are Improved versions of the witnesses. If such portions are excluded from the evidence of the prosecution witnesses PWs.1, 4, 5 ,6 10 & 11, then, nothing remains on record to show that there was demand of dowry by the accused and payment of dowry of PWs. 1 and 4. This aspect of the matter is totaiiy overlooked by the trial Court while concluding that the accused had committed the offence under Section 498-A of IPC. 15. Accused No.2 is a student aged about 19 years. Accused No.3 is the mother of accused No.1. Absolutely no specific materiai are found against each of the accused, more so against accused Nos.2 and 3. This goes to show that the I? police have tned to improve the case of the prosecution by false implication 16 Be that as it may, in the absence f my reliable material on iecord relating to demand of dowry by the accused and payment of the same by PWs I and 4 and as the versions of PWs 1, 4, 5, 6 10 & 11 are found to be improved before the Court at the time of their deposition, we are of the opinion that the trid Court is not justified in convicting tne accused for the offence under Section 498A of IPC, inasmuch as, prosecution has failed to prove its case beyond easonable doibt relating t dowry ha assment 7 As aforement oned he n ident m o rre t about 1 00 a m on 11 C 004 mn edi t I t f mt ent I I A ig I & Nn n t r n C 18 PW 14 came to the hospital He gave a requisition to the Medical Officer to give information about the fitness of the victim to give the statement Howeer he ild not r ord the statement of the victim inasmuch as the doctor has net given the positive opinion with regard to fitness of victim for giving statement But the fact remains that PW14 came to the hospital and gave requisition to the medical officer to give his opinion about the fitness of the injured PW44 being the responsible officer of the police department ought to have registered the case and ought to have commenced the investigation In the normal nurse he should ha te recorded the statemen of th€ pa ons Aho Acre it he deceased r the hosoital at lea t e hni d u n r n lit t e a d at o Aomttedl ci no 4 are pre t I pt l p h 0 0 CA 9SCC g 4 d st t .19: days after his visit to the hospital. In this context, it is relevant to note the evidence of Inspector of Police — PW 23 PW-23 has conducted the investigatior and ‘aid tI’e charge sheet after completion of Investigation. In the cross- examination he has ddmitted that H C.No 1907 (PW-14) visited KIMS and recorded the statement of the deceased on 22.6.2004 Immediately after receipt of MLC. intimation He has further admitted that PW-14 once again visited KIMS on 26.6.2004. The said statement said to have been recorded by PW-14 Is not forthcoming from the records The Head Constabie could not have visited the hospital without registenng the ase Therc. is othing reco to show a to whether the case was registered on 22 6.12004 or not. In tew of the same, the argurrent of the defer ce cour.sel hat he o’ilce have deliberately uppre ea the ...a’ qiste.re on 22.6 200 ana tfle result of the :n;.estiatin ne:c sar c eatato f r .2 2 4 .mpo’tance. In the normal co’ rse. the po Ice esou’d kac orr iIy cc ,dL tF it te er nf Ca re V t, c’ 6’it ‘‘ 3 di 1.19 C) t ‘ . ft tie .r Sr.. ,, s • sete ;—rr :r’ I ;: ‘.‘.,it . ri. ‘1.— a records Therefore, Sri Shirahalli, learned defence counsel Is justified In arguing that this material is suppressed by the prosecution and such materiai collected during the course of investigation between 22.6 2004 and 24.6 2004 is deliberately suppressed because the same would enure to the benefit of the accused, Inasmuch as, none of the witnesses whose statements are recorded in two days might not have Implicated the accused at all. The complaint came to be lodged only after two days of the death of the deceased. 18 Be that as it may, looking to the totality of the facts and circumstances of the case, we are of the opinfon that the rosecutlon has 1ot ome out with truE. vers or TI’ c. statement of tne deceased recorded by PW-14 on 22.6 2004 ic not laced beforc the Cr ‘ a o err tb d t history yen by tt e siS’m aefore the dct PW ‘S acr!dental burns. In view of t— Sam , we are i-f he Qp: ri’ tta t[ pro cu p J s c - -aasnnabie aoot. Ac’,ti;qqij -e ,.s:t 1 s..r •lrt : c’ r :21 acquitted of all the charges Hence, the following order is made: Criminal Appeal No.816/2006 is allowed. The judgment and order of conviction passed by the Court below convicting the accused for the offence under Section 498-A of IPC and SectIons 3 and 4 of the Dowry Prohibition Act is set aside. The accused are acquitted of all the charges. Criminal Appeal No.2880/2011 flied by the State stands dismissed. SdhL 3T.ik at lb ,-