Court:Karnataka High Court
Bench: JUSTICE C Ullal, V Jagannathan
State of Karnataka By Mahila Police vs Gnanendra And Ors On 23 March 2006
Once the demand of dowry is not there, and there is no evidence to back it, question of Sections 3 and 4 of Dowry Prohibition Act coming into operation will not arise. No case under section 498A made out.
1. The State has questioned the judgment and order of acquittal passed by the learned Sessions Judge, Mysore, dated 15-9-1999 acquitting the respondents herein of the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961, Sections 498-A and 302 read with Section 34 of the IPC. Though there were four accused persons initially, the second accused, namely, the mother of first accused died and hence, the case was proceeded against only the other three accused who are respondents 1 to 3 before this Court.
2. The charge against the accused persons was that the first respondent being the husband, second respondent and third respondent being the brother-in-law and sister-in-law of deceased Kavita, along with deceased Rukminiamma who was the mother-in-law of Kavita, subjected the said Kavita to cruel treatment in connection with demand of dowry of Rs. 50,000/- along with jewels, and subsequent demand of Rs. 3 lakhs as dowry and in addition to this, the accused persons also gave ill-treatment to the deceased Kavita and to cap it all, the husband of deceased Kavita, that is the first respondent before us, was having illicit relationship with the third respondent-Shobha and this was witnessed by deceased Kavita on the night of the fateful day and following this, the accused persons set fire to Kavita, inasmuch as, the respondents before us held deceased Kavita and deceased Rukminiamma, the mother-in-law of Kavita caused several burn injuries on Kavita by keeping on her body, kerosene soaked cloth, which was set on fire and thus, Kavita died of the burn injuries sustained in the aforesaid manner and hence, the charge against the accused persons.
3. But however, the broad features of the prosecution case as revealed during trial may be stated as under:
Deceased Kavita was a convent read, well-educated and a beautiful girl and she was the only daughter of the complainant-Shivaramaiah (P.W. 2) and the said Shivaramaiah had retired from service as a Physical Training Instructor in a school and was residing in Dooravaninagar, ITI Colony, Bangalore, at the relevant time. Kavita’s marriage with the first respondent-Gnanendra took place on 21-6-1991 and at the time of marriage, there was no demand of dowry by any of the accused, much less, by the first respondent-husband. But, however, soon after Kavita entered her matrimonial home, the trouble started. It is the prosecution case that Kavita was subjected to cruel treatment and she felt like a prisoner in the house of the accused and further there was constant demand by the accused persons for dowry to the tune of Rs. 3 lakhs and in addition to the said demand for dowry and cruel treatment, it was alleged by the prosecution, that Kavita’s husband, namely Gnanendra, was found to have illicit relationship with his sister-in-law i.e., the third respondent herein and this was witnessed by Kavita on the night of 12-9-1994, when Kavita’s husband who went to attend nature’s call to the bathroom did not return for long and therefore out of curiosity, Kavita checked as to where her husband was and she saw him in the company of the third respondent-Shobha. On coming to know of this fact, all the accused persons took Kavita to the kitchen and she was set on fire in the manner described above. Following the bum injuries sustained, Kavita was taken to the hospital for treatment. At the hospital, the history of the bum injuries was given as due to accidental burn following the incident of Kavita trying to get the milk boiled to give to her child and in the process, her saree caught fire and thus she sustained burn injuries. Kavita was given treatment at the hospital.
4. P.W. 6-Devanna Naik, the Head Constable of Jayalakshmipuram Police Station, Mysore, received a Medicolegal intimation from B.M. Hospital, Mysore as per Ex. P. 28 and went to the Hospital around 10.15 a.m. and contacted the injured Kavita who had burn injuries and on being satisfied that Kavita was in a fit condition to make her statement, following the enquiry with the Medical Officer, P.W. 6 recorded the statement of Kavita as per Ex. P. 29 and obtained the doctor’s endorsement on it, though not the thumb impression of Kavita. The first respondent-husband was present in the hospital at that time, but he was sent out during the recording of statement-Ex. P. 29. P.W. 7-Marimalegowda was also present along with P.W. 6 when the above statement of deceased Kavita was recorded and in fact, it was P.W. 7 who wrote Ex. P. 29 and read the same to Kavita.
5. The ‘treatment given to Kavita did not enable her to come back to life, but on the other hand, she breathed her last in the hospital on 23-9-1994 at 7.30 a.m. P.W. 8-Padma, the Woman Police Constable accompanied by the Woman Sub-Inspector gave a requisition to the Tahsildar to conduct inquest over the dead body of Kavita. Accordingly, the Tahsildar-P.W. 21 conducted inquest and at that time, the complainant-Shivaramaiah was also present. Ex. P. 7 is the inquest panchanama and it also contained the statement of Shivaramaiah. The dead body was subjected to post-mortem examination and it was P.W. 18 Dr. Ravichandar who conducted the post-mortem and gave his report as per Ex. P. 33. The doctor opined that the cause of death of Kavita was due to septicaemia consequent to burns sustained by her.
6. P.W. 2-Shivaramaiah, the father of deceased Kavita on being informed about Kavita being admitted to hospital for burn injuries, came to Mysore and he met his daughter in the hospital and according to the prosecution, the deceased made a oral dying declaration before P.W. 2 by stating that she was set on fire by the accused persons as she had witnessed her husband in the company of her sister-in-law-Shobha. P.W. 2 thereafterwards gave his complaint in writing to P.W. 1-Santhosham, the Woman Police Sub-Inspector and the said Police Officer relying on the written complaint given by P.W. 2 and also on the strength of the death intimation she got from the B.M. Hospital, registered a U.D.R. case in No. 1/94 and submitted FIR to the Taluk Executive Magistrate. The Taluk Executive Magistrate, as already mentioned by us, in the course of his enquiry and on the strength of the statement made by the complainant-P.W. 2, came to the belief that it was a case of dowry death and therefore directed a detailed investigation. The complaint given by P.W. 2 before P.W. 1 is at Ex. P. 5 and Ex. P. 3 is the FIR which was sent by P.W. 1.
7. P.W. 22-Manjula Devaraj, the Woman Police Inspector of Anti-Dowry Cell, took up further investigation of this case for the offences punishable under Section 302 of the IPC read with Sections 3 and 4 of Dowry Prohibition Act and she obtained sketch map of the scene of offence as per Ex. P. 37 and also the statement of the doctors at B.M. Hospital and she further obtained clarification from Dr. Ravichandar with regard to the burn injuries on the deceased as per Ex. P. 34. P.W. 23-Mahadevaiah, the Police Inspector took part in the conduct of spot mahazar as per Ex. P. 39 and recovered the gold ornaments of the deceased as per Ex. P. 40. P.W. 20-Rajendra Kumar who was the Assistant Commissioner of Police at Mysore, on his part, arrested the accused and the gold ornaments referred to above were seized under Ex. P. 32 and he also recorded the statement of many of the prosecution witnesses and collected the Xerox copies of the typed letters said to have been sent by the deceased to her father. These letters are Exs. P. 12 to P. 15. P.W. 22 on completion of investigation, submitted the charge-sheet against the accused persons.
8. The prosecution in order to establish this case against the accused respondents, examined at the trial P.Ws. 1 to 24 and got marked documents Exs. P. 1 to P. 43. After the recoding of prosecution evidence, accused statement came to be recorded. Stand of the accused persons was one of total denial, as regards the incriminating circumstances appearing in the evidence against them, On their part, the accused let in the defence evidence by examining Dr. S.P. Harale as D.W. 1 and got marked documents Exs. D. 1 to D. 16.
9. The learned Trial Judge after appreciating the evidence on record, in the light of the submissions made, came to the conclusion that the prosecution had failed to establish the charge levelled against the accused persons and the prosecution case had several infirmities, giving rise to serious doubt and therefore, the Trial Court thought it fit to extend the benefit of doubt, to the accused. The circumstances on which the prosecution had placed reliance were found to be wanting as regards their reliability and acceptability and the Trial Court had also noticed several improvements in the evidence of prosecution witnesses and therefore, it ultimately acquitted the accused of all the offences with which they stood charged. It is this order of acquittal of the Trial Court that is assailed before us in this appeal.
10. We have heard the submissions made by the learned Additional State Public Prosecutor, Sri B.V. Pinto as well as the submissions of the learned Counsel, Sri C.V. Nagesh for the respondents and with their assistance, have gone through meticulously, the entire evidence on record as well as the Trial Court reasoning for acquittal.
11. Learned State Counsel, Sri B.V. Pinto, referring to the evidence on record, submitted that the deceased died a homicidal death and the evidence placed by the prosecution, particularly, that of P.W. 2 would go to show that the deceased Kavita made oral dying declaration before her father and therefore, if the said evidence of P.W. 2 is read along with the other evidence placed on record with regard to cruelty and illicit relationship the first respondent had with the third respondent, the case of the prosecution has been proved beyond reasonable doubt. So far as the statement of the deceased recorded by P.W. 6 as per Ex. P. 29 is concerned, it was submitted that the said statement of the deceased purporting to be a dying declaration, does not bear the signature or thumb impression of the deceased and it does not contain the endorsement of the Doctor to the effect that deceased was in a fit state of mind and that the statement was recorded in the presence of the doctor and further in view of the said statement being recorded by P.W. 7 at the instance of P.W. 6, both of whom being Police Officials, these circumstances taken together, gave rise to doubt the veracity of the statement Ex. P. 29 and the chances of the accused trying to wriggle out of the situation by creating Ex. P. 29 cannot be ruled out and this submission is sought to be reinforced by submitting that the conduct of the accused persons also speaks volume and as such, in view of these factors, no reliance can be placed on Ex. P. 29. It was argued on the same lines that, in view of the evidence of P.W. 2 that he was forced to sign on the written complaint-Ex. P. 5, no reliance can be placed on Ex. P. 5 also and if these two documents are taken out of the reckoning, what remains is the oral dying declaration made by deceased Kavita before her father and this is an important piece of evidence which points to the guilt of the accused persons and coupled with this is the evidence of the doctor-P.W. 18 and those of the other close relations of the deceased as well as the close friend of the deceased, all of which would go to indicate that Kavita was set on fire by the accused following the cruel treatment given to her and the demand made for dowry and more importantly, because of Kavita witnessing her husband in the company of third respondent-Shobha. Hence, learned State Counsel submitted that the Trial Court had failed to appreciate the evidence in proper perspective and thus, there has been miscarriage of justice.
12. On the other hand, learned Counsel, Sri C.V. Nagesh for the respondents, argued at great length and took us through the evidence of almost all the witnesses and in particular, he laid emphasis on what the witnesses have said in the course of their cross-examination and the sum and substance of the submissions made by the learned Counsel for the respondents in as under:
It was submitted that the prosecution had to establish that the death of Kavita was a homicidal one. The evidence on record, if closely scrutinised will go to establish that deceased Kavita died not a homicidal death, but it was accidental, in the sense that she died due to accidental burns sustained by her while she was boiling the milk on the stove. To support this contention, reliance was placed on the evidence of P.W. 18, the doctor, who in the course of his cross-examination has clearly stated that the burn injuries on the deceased suggested that it was accidental burn injuries. Since doctor has opined that death was due to septicaemia, consequent to burns, the fact that deceased died due to burns is not in dispute. But it was contended that the burn injuries sustained by Kavita was due to accident and it was not a case of homicidal burn injuries. It was also submitted that there were no eye-witnesses to the incident in question and the medical records of the hospital where Kavita was admitted, would go to establish that the deceased sustained burn injuries due to accidental fire and not due to any act on the part of the accused persons. Ex. P. 29, the statement of the deceased also supports the above view of the defence.
13. It was further submitted that insofar as the dowry harassment is concerned, the prosecution witnesses have not stated that there was demand of dowry, but on the other hand, the very prosecution case itself is that the first respondent married Kavita without demanding any dowry and this fact is admitted by none other than P.W. 2 who is the complainant and father of the deceased and also by other witnesses. Therefore, the question of dowry harassment does not arise and this fact was sought to be fortified by submitting that in Exs. P. 12 to P. 15, purported to be written by the deceased, there is no whisper about any cruel treatment or any demand made in connection with dowry. Exs. D. 4 to D. 9 also reflects the same position. Therefore, no case under the Dowry Act has been made out, is the submission made by the learned Counsel.
14. As regards the application of Section 498-A of the Cr. P.C. is concerned, it was submitted by referring to the provision of law that in order to attract Section 498-A, the prosecution will have to establish that the deceased was subjected to cruelty and for the said purpose, cruelty as explained in Section 498-A, Clause (a) or Clause (b) will have to be proved. In this connection, it was submitted that Clause (a) of the explanation does not get attracted to the case on hand because it is nobody’s case that Kavita died a suicidal death or natural death. Since Kavita died due to accidental burns as has been established by the medical records as well as the statement of deceased-Ex. P. 29 and the complaint Ex. P. 5, the question of Clause (a) of Section 498-A being attracted has to be ruled out. Even assuming that the deceased was subjected to some kind of harassment by the accused persons, yet it falls short of Clause (a) of the explanation since death of Kavita was neither suicidal nor was there any grave injury or damage to her limb or health. So far as the application of Clause (b) of the explanation is concerned, it was submitted that unless there is positive evidence to show that the harassment of Kavita was on account of demand of dowry, question of Clause (b) coming into operation will not arise and in the instant case, the prosecution evidence is that there was no demand for dowry by the accused. Therefore, Section 498-A of the IPC also does not get attracted to the case on hand.
15. Learned Counsel for the respondents further submitted that if the entire evidence on record is taken together, it would go to reveal that the complainant gave a twist to the whole case only when his statement was recorded by the Anti-Dowry Cell Inspector, almost 20 days after the death of Kavita. Therefore, all the evidence that is placed before the Court by P.W. 2 and others is nothing, but an improvement over the earliest version given before the doctor and the earliest version is that found both in the statement of the deceased-Ex. P. 29 and complaint-Ex. P. 5. It was also submitted that the complainant has resorted to falsity of the documents and this is evident from the very letters produced at Exs. P. 12 to P. 15, a reading of which would leave no one in doubt as to the improbability of the deceased having typed those letters to her husband.
16. Learned Counsel Sri C.V. Nagesh in support of the above submissions placed reliance on the decisions in Giridhar Shankar Tawade v. State of Maharashtra and Gaffar Badshaha Pathan v. State of Maharashtra 2004 SCC (Cri.) 2037.
17. By way of reply, learned State Counsel submitted that the fact that deceased Kavita died within seven years of her marriage and the further fact that at the time when she was found with burn injuries in her house, only the respondents-accused were present and none-else, it was the duty of the accused to have explained as to how Kavita sustained those burn injuries and in the absence of any explanation forthcoming from the accused in this regard, as could be seen from the answers given by them in their 313 statement and the conduct of the accused in not informing P.W. 2 about the burn injuries would therefore put the obligation on the accused to explain the injuries sustained by the deceased and therefore, a case under Section 302 of the IPC has been made out. In the alternative, it was submitted that, taking note of the facts and circumstances of the case that death of Kavita took place within seven years of her marriage. Sections 113-A and 113-B of the IPC can be pressed into service and a case under Section 304-B cannot be ruled out and if this Court were to come to the said view, Section 222 of the Cr. P.C. gives scope to convict the accused persons for a lesser offence.
18. Having thus heard the submissions made by both sides at the bar, the point for consideration is whether the State has made out a case for us to interfere in this appeal with regard to the judgment and order of acquittal passed by the Trial Court.
19. Before we proceed to deal with the contentions urged before us, it has to be mentioned that, though the Appellate Court has no limit on its power to re-appreciate its evidence while hearing the appeal, it is also a settled position in law that if the evidence on record permits two views being possible and if the Trial Court accepts one view that is in favour of the accused, the Appellate Court cannot disturb the said view of the Trial Court, merely because another view is also possible of the evidence on record, but the Appellate Court would interfere only when it is shown that the finding of the Trial Court is either perverse or unreasonable or contrary to the evidence on record. Unless these circumstances do exist, the Appellate Court would not normally interfere with the judgment of the Trial Court.
20. Keeping the above position in law in the background, we proceed to examine the evidence on record in the light of the submissions made before us.
21. The prosecution case is that, deceased Kavita was subjected to cruelty and there was demand of dowry and that as she had seen her husband in the company of third respondent, the accused set her on fire. Therefore, before the prosecution could bring home the guilt of the accused, it has to be established that the deceased died a homicidal death.
22. The evidence of P.W. 18-Dr. Ravichandar is to the effect that he conducted the post-mortem examination on the dead body of Kavita between 4.55 p.m. and 6.00 p.m. on 23-9-1994 and on examination, he noted the following injuries:
(1) Epidermal bums (partially healed) were present on the anterior aspect of the right forearm, right breast, left upper limb, left breast surrounding the nipple and areola, a band of size, sized the palm, encircling the whole body in the epigastrium level, a localised area on the anterior abdominal wall were present;
(2) Dermal partially healed burns were present on both the lower limbs, except the dorsum of the feet.
The Doctor has deposed that the death was due to septicaemia consequent to burns sustained. He has also stated in the course of his examination-in-chief that, Ex. P. 33 is the post-mortem report and he also gave clarifications to the Investigating Officer as per Ex. P. 34 and he has furnished his opinion in the form of answers to questions put to him and has opined that the burn injuries on the deceased could be possible by lighting a kerosene soaked cloth tied to a stick and putting it on the body and this is clear from the typical distribution of multiple, localised burn injuries over the body. He has also stated that the burn injuries mentioned by him could be caused by others and not by self. At the end of his examination-in-chief, P.W. 18 has stated that the injuries found on the dead body was suggestive not of suicide in nature. Thus the doctor has ruled out suicide death of the deceased.
23. However, in the cross-examination, the doctor does a somersault, in the sense that, when questioned by the defence, he has stated that by having regard to the nature, extent and non-uniformity of the burns, they are suggestive of accidental burns and this evidence of the doctor is further confirmed by the prosecution by re-examining him and in his re-examination also, P.W. 18 has stated in clear terms that the nature, distribution and non-uniformity of the burns suggest that it was one of accidental death. The doctor has admitted that he has not stated so in his post-mortem report or Ex. P. 34. The doctor’s answer that the nature of burn injuries suggested that it was accidental death is in response to the question posed to him as to whether the death was accidental, suicidal or homicidal having regard to the nature of burns found on the dead body. In other words, the evidence of the doctor gives an indication that the burn injuries sustained by the deceased and the death that ensued afterwards, were both accidental. In other words, the doctor’s evidence has ruled out the possibility of the death being either homicidal or suicidal.
24. The above evidence of the doctor is also confirmed from the other evidence placed by the prosecution on record. The medical records of B.M. Hospital which have been produced and marked as Exs. P. 42 and P. 43 mention that the patient was brought to the hospital with the history of accidental bums. Ex. P. 28-the Medicolegal intimation also mentions that the history of burn injuries was due to accidental burns caused while boiling the milk.
25. Thus, a reading of the above evidence cumulatively, will lead to the inference that deceased Kavita died due to accidental burns. In other words, burns sustained by her was accidental.
26. In addition to the evidence of P.W. 18 and the other documents referred to above, we also have the complaint-Ex. P. 5 lodged by P.W. 2, wherein the cause of the burn injuries has been described as due to accidental burns. Therefore, the very prosecution evidence placed on record, itself indicates that the deceased died due to accidental burns.
27. As against the above medical evidence and documentary evidence placed by the prosecution itself, we also have the oral evidence of P.W. 2 to the effect that he was told by his deceased daughter Kavita, that she was set on fire by the accused persons. Excepting the uncorroborated alleged oral dying declaration said to have been made by the deceased before P.W. 2, there is no other evidence on record to indicate as to the cause of death of the deceased. The only evidence is the medical evidence referred to above and the other documents-Exs. P. 42, P. 43 and P. 5-the complaint. Therefore, we are in agreement with the submission made by the learned Counsel for the respondents that the evidence on record does not establish beyond all reasonable doubt that deceased Kavita died in homicidal death, but on the other hand, the positive evidence placed by the prosecution is to the effect that deceased died due to accidental bums. It has to be mentioned at this juncture that the prosecution has not treated doctor-P.W. 18 hostile, nor has the prosecution placed any other evidence to show that the deceased died only a homicidal death. Hence, the medical evidence has clearly ruled out homicidal death of the deceased.
28. Coming to the dying declaration on which the prosecution has placed reliance, it has to be stated that this is a very peculiar case, in the sense that, here is a case where the prosecution has placed on record two sets of dying declaration. One is Ex. P. 29 which was given before P.W. 6 and recorded by P.W. 7 and certified by Dr. Manjula; the other set of oral dying declaration is the one alleged to have been made before P.W. 2 by deceased Kavita. As regards the acceptance of the dying declaration-Ex. P. 29 is concerned, P.Ws. 6 and 7 are the official witnesses and both of them have spoken on the same lines with regard to Kavita making her statement as per Ex. P. 29. These two witnesses have not been declared hostile by the prosecution and in other words, it means that the prosecution wants to place reliance on the testimony of both P.Ws. 6 and 7. No doubt Ex. P. 29 does not contain the signature or thumb mark of the deceased, but P.W. 6 has explained in the course of his evidence that Kavita has sustained burn injuries on both her hands and therefore, she could not sign it nor could be obtain her thumb impression. This evidence of P.W. 6 has remained intact. No effort has been made by the prosecution to treat the witness hostile if the prosecution case is that the deceased was in a position to put the signature on Ex, P. 29.
29. D.W. 1-Dr. Harale examined by the defence has stated in the course of his evidence that it is possible that the hands and fingers of Kavita might have been burnt and he has also stated that there was no impediment to obtain signature of the deceased, but adds that he did not record the previous history of the patient. But he found it already in the record of the hospital when he came for duty on the morning of 13-9-1994.
30. Therefore, the evidence of the above witnesses would go to indicate that the deceased did make her statement as per Ex. P. 29 as disposed by P.Ws. 6 and 7 and it is difficult to disbelieve their version as they are the witnesses for the prosecution and more so, they are the police officials and it is rather, unjust to them to doubt the veracity of their testimony, when nothing has been put to these two witnesses in the cross-examination to the said effect. The fact that Ex. P. 29 is signed by Dr. Manjula is also spoken to by P.W. 24-Dr. Rajagopal. This doctor has stated in the course of his examination-in-chief that Ex. P. 29(a) is the signature of Dr. Manjula and therefore, this evidence of P.W. 24 confirms that Dr. Manjula was working in B.M. Hospital as the lady Duty Medical Officer and her signature is found on Ex. P. 29.
31. At this stage, it has to be mentioned that, it was contended by the learned State Counsel that there was no endorsement in Ex. P. 29 that deceased was in a fit state of mind to give a statement. We do not find any force in the said submission, because it is also the prosecution case that when P.W. 2 went to the hospital almost 10 days later, he found his daughter in a position to speak to him as well as speak to P.W. 5-Govindan. Therefore, when Kavita had sustained 30% burn injuries and when she could speak to P.W. 2 as alleged by him in his evidence, almost 10 -days later, it is rather inconceivable that she could not have been in a position to speak to P.Ws. 6 and 7 on the very day she was taken to the hospital.
32. Once Ex. P. 29 is accepted as the statement of the deceased made before P.W. 6 and recorded by P.W. 7, and signed by Dr. Manjula, as testified by P.W. 24, the prosecution itself has come up with the theory that deceased died on account of accidental burns as could be seen from the contents of Ex. P. 29. In Ex. P. 29, deceased has not stated that it was the accused who set her on fire. Therefore, once Ex. P. 29 is accepted as the earliest version with regard to injuries found on the deceased, question of the accused persons setting the deceased on fire will not arise.
33. For a moment, we shall keep Ex. P. 29 aside and examine the evidence of P.W. 2 with regard to the alleged oral dying declaration made by the deceased before him. If the prosecution is able to show that the deceased did make her oral dying declaration before P.W. 2 and if the said evidence is found to be worthy of acceptance and credible, then the case of the prosecution would stand on a better footing.
34. P.W. 2 has deposed in the course of his evidence that when he wont to the hospital and met his daughter, she told him that she had been admitted to the hospital two days back and that the incident had occurred about 12 days back and nearly for a period of 3 to 4 days, she was not given any treatment and she was found shivering and when enquired by P.W. 2 she told him that the accused caused those burn injuries to her. If this evidence of P.W. 2 were to be accepted that the deceased made oral dying declaration before him, there was no impediment on the part of P.W. 2 to have stated so in his written complaint-Ex. P. 5. But this is not the case. Ex. P. 5 is the written complaint lodged by P.W. 2 and he makes no mention of the oral dying declaration made before him by his deceased daughter. Secondly, Ex. P. 7 which is the inquest report recorded on 23-9-1994, also does not indicate that the deceased made oral dying declaration to the above effect before P.W. 2. In fact, Ex. P. 7 is totally silent with regard to oral dying declaration made by deceased before P.W. 2. That apart, we also have the evidence of P.W. 5-Govindan, a close family friend of P.W. 2 and the said witness. P.W. 5 has deposed in his evidence that he was with P.W. 2 throughout in the hospital and both of them spoke to Kavita and she is turn spoke to P.Ws. 2 and 5. Nowhere in the course of his evidence this witness has stated that the deceased Kavita made oral dying declaration before P.W. 2 as alleged by P.W. 2 in the course of his evidence. On the contrary, in the course of his evidence, P.W. 5 has also stated that accused 1, accused 4 and another lady were found attending Kavita and in their presence ‘he’ enquired with Kavita. If at all the deceased had made oral dying declaration before P.W. 2, P.W. 5 would not have failed to mention this important fact during the course of his evidence, considering the fact that P.W. 5 was a close friend of P.W. 2. Therefore, serious doubt arises with regard to the testimony of P.W. 2 that the deceased made oral dying declaration before him.
35. Even in Ex. P. 1 which is the report of the Tahsildar in regard to which P.W. 1 has deposed in the course of her evidence, there is a mention of the fact that deceased was set on fire by the father-in-law and husband of Kavita, whereas, the specific case of the prosecution as per the charge levelled against the accused persons is that, it was accused 1, accused 3 and accused 4 who held the deceased and it was accused 2 who set fire to the deceased. Apart from the above serious discrepancy in the prosecution evidence itself with regard to dying declaration alleged to have been made by the deceased, as already mentioned by us, nothing prevented P.W. 2 to have mentioned the same in his complaint-Ex. P. 5 when the complainant was in the habit of writing letters to his daughter very often in chaste English.
36. Therefore, in the case on hand, the prosecution has placed two sets of dying declaration, one as per Ex. P. 29 with regard to which P,Ws. 6 and 7 have spoken and it is also supported by Exs. P. 42 and P. 43 and all this evidence remains intact, and on the other, there is alleged oral dying declaration, which we have found on close examination as above, which is not free from doubt and lacking in trustworthiness and the complaint Ex. P. 5 itself rules out any oral dying declaration made by the deceased before P.W. 2. Such being the evidence placed by the prosecution with regard to the dying declaration, the Trial Court has therefore rightly rejected the evidence of P.W. 2 with regard to the alleged oral dying declaration made by the deceased before him in the face of positive evidence placed by P.Ws. 6 and 7 and that evidence is supported by Exs. P. 42 and P. 43. Therefore, the prosecution case that the deceased made oral dying declaration before P.W. 2 has to be rejected as lacking in trustworthiness and thus re-examination of the entire evidence on record leaves us with no other option than to conclude that the deceased made her dying declaration as per Ex. P. 29 and there was no other dying declaration made by her. The evidence of P.W. 2 that deceased made oral dying declaration before him is therefore an after thought and nothing more.
37. Having thus seen that the prosecution has failed to establish, firstly, a homicidal death of deceased Kavita and secondly, having failed to establish by convincing and reliable evidence, the oral dying declaration made by the deceased before P.W. 2, the only evidence that is left behind for consideration is the statement of the deceased as per Ex. P. 29, which is supported by the complaint-Ex. P. 5.
38. A reading of the said two documents, goes to establish that there was absolutely no allegation of dowry demand or any harassment, much less, cruel treatment given to the deceased by the accused persons. P.W. 2 himself has admitted in his evidence that the first respondent-accused came forward to take the hand of Kavita in marriage, without demanding any dowry, but on the other hand, because Kavita was found to be good-looking and beautiful. This is the evidence of almost all the prosecution witnesses as could be seen from their cross-examination and whatever they have stated in the course of their examination-in-chief has been rendered unreliable in the cross-examination and the impression that the witnesses have improved their case before the Court is irresistable.
39. Once the demand of dowry is not there, and there is no evidence to back it, question of Sections 3 and 4 of Dowry Prohibition Act coming into operation will not arise. Whatever jewels that was given to Kavita in marriage was given, according to the prosecution witnesses, as part of the family custom and the said jewels belonged to the deceased’s mother and it was given to Kavita during her marriage. P.W. 2 himself admits in his evidence that he never made a statement before Police that there was demand of Rs. 3 lakhs by the accused.
40. So far as Section 498-A application is concerned, the only harassment to which the deceased was subjected, as could be seen from the evidence of the prosecution witnesses was that, she was made to do household work and her husband refused to set up a separate house at her request. There are no other allegations of harassment and all the letter produced by the prosecution as per Exs. P. 12 to P. 15 and Exs. D. 4 to D, 9 go to indicate that deceased was happy in her matrimonial house and she was in love with her husband and there was not even a remote indication in all those letters about any harassment given by the accused to her with regard a demand of dowry or cruel treatment. One of those letters was about 18 days prior to death of Kavita and the other one was written about 2 to 3 months earlier to her death and even in those letters also, Kavita had not alleged any harassment by the accused either for dowry or there being cruel treatment in her matrimonial house. Therefore, application of Section 498-A, Clause (b) will not get attracted. As already mentioned by us, even to bring in application of Explanation (a) of Section 498-A, the death of Kavita being an accidental one, it falls short of Section 498-A, Explanation (a).
41. In this connection, the decisions referred to by the learned Counsel for the respondents will have to be pressed into service. In Giridhar Shankar Tawade’s case, the Apex Court has observed as under:
16. We have already noted Section 498-A hereinbefore in this judgment and as such, we need not delve upon the same in greater detail herein except recording that the same stands attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman. Admittedly, the finding of the Trial Court as regards the death negated suicide with a positive finding of accidental death. If suicide is ruled out then in that event applicability of Section 498-A can be had only in terms of Explanation (b) thereto which in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her of any person related to her to meet such demand – there is total absence of any of the requirements of the statute in terms of Section 498-A. The three letters said to have been written and as noticed earlier cannot possibly lend any credence to the requirement of the statute or even a simple demand for dowry.
17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal of the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary, neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereon – the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute; even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl’s in-laws’ place and requests the husband to treat her well – at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day.
18. A faint attempt has been made during the course of submissions that Explanation (a) to the section stands attracted and as such, no fault can be attributed to the judgment. This, in our view, is a wholly fallacious approach to the matter by reason of the specific finding of the Trial Court and the High Court concurred therewith that the death unfortunately was an accidental death and not suicide. If suicide is left out, then in that event question of applicability of Explanation (a) would not arise -neither the second limb to cause injury and danger to life or limb or health would be attracted. In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A and not de hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of Explanation (b). The letters by themselves though may depict a reprehensible conduct, would not, however, bring home the charge of Section 498-A against the accused. Acquittal of a charge under Section 306, as noticed hereinbefore, though not by itself a ground for acquittal under Section 498-A, but some cogent evidence is required to bring home the charge of Section 498-A as well, without which the charge cannot be said to be maintained. Presently, we have no such evidence available on record.
42. Having regard to the above provision of law regarding Section 498-A of the IPC, even in the case on hand, the evidence on record does not bring the case under Section 498-A and within the Explanation (a) or (b) of the said Section.
43. Learned State Counsel contended among other things, that the burden is on the accused to prove that death of Kavita was accidental and the conduct of the accused also gives rise to doubt their stand. We do not find any force in the said submission also because it is a settled law that the prosecution will have to stand or fall on its own legs and all that is required on the part of the defence is only to probabilise the defence version. In other words, the burden of proof is lighter on the side of the defence than on the side of the prosecution. In the instant case, the defence has by placing reliance on the very prosecution evidence of P.Ws. 6, 7 and 18 and the documentary evidence, namely dying declaration – Ex. Pi 29, the complaint of P.W. 2-Ex. P. 5 and the medical records Exs. P. 42 and P. 43 and death intimation – Ex. P. 28 has raised the Refence version which is probabilised and as has been observed by the Apex Court in the case of Gaffar Badshaha Pathan, whether the death in question was accidental or not, the burden of proof was on the prosecution and it was not for the accused because the burden on the accused is much lighter and accused only had to prove reasonable probability. The Court also observed in the said case that the fact that the dying declaration was recorded by a Police Constable was found to be not doubtful and the endorsement of the doctor confirmed the true state of the deceased and therefore, the above observation was made by the Apex Court in the context of said facts and circumstances. In the case on hand also, the prosecution itself has placed on record convincing and positive evidence to the effect that death of Kavita was due to accidental burns and when that is the case, it is not for the accused to come up with his evidence to prove the very same thing when that task has been discharged by the prosecution itself by placing evidence to the said effect.
44. To one other point which we would like to refer is, the attention drawn by the learned Counsel for the respondents as regards the appeal ground 6 taken in the Appeal Memo. The State in its appeal memo has stated at para 6 thus:
6. The Trial Court has erred in disbelieving Ex. P. 29 the dying declaration recorded by P.W. 6-Devanna Nayak. It has come in the evidence that the deceased was in a fit state of mind and the doctor who was treating the injured has stated that she was in a position to make a statement and it is only thereafter, Ex, P. 29 was recorded by P.W. 6, the evidence of P.W. 6 is corroborated by P.W. 7-Mahadev who was accompanying P.W. 6. Both these witnesses are the official witnesses and have no animosity against the accused. Further, the evidence of P.W. 6 as to the recording of Ex. P. 29 has remained unchallenged. In view of these attending circumstances, the Trial Court should have believed Ex. P. 29. Not doing so, the same has resulted in miscarriage of justice.
45. It is therefore clear that the contention urged in the appeal memo is for this Court to believe Ex. P. 29 and if the said document is believed, it does not advance the case of the prosecution any further, but on the other hand, it destroys the testimony of P.W. 2 that deceased made oral dying declaration before him. When there are two declarations made, it is the earliest version that has to be given the due importance, unless there is evidence to show that the earliest version was not found to be a trustworthy one. In the case on hand, we have seen that Ex. P. 29 suffers from no infirmity whatsoever and once it is accepted, the prosecution argument that deceased made dying declaration orally before P.W. 2 has to be rejected. We have also seen from the evidence on record that the evidence of P.W. 2 with regard to oral dying declaration made by the deceased is unreliable and lacks credit worthiness and also lacks corroboration from the other evidence on record.
46. To sum up, the view taken by the Trial Court in the case on hand appears to us to be a reasonable and a possible view of the evidence on record and as such, there are no compelling reasons for us to interfere in this appeal or to interfere with the order of acquittal passed by the Trial Court.
47. In the result, State appeal stands dismissed.
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