1. This appeal is filed challenging the judgment of acquittal passed in SC.No.40/2008, dated 4th day of November, 2010, on the file of IV Additional District and Sessions Judge, Mysore.
2. The factual matrix of the case is that the daughter of Balraj by name Bindu was residing at Shayamapura Street in Nanjangud Village. On 27.3.2007 at about 6.00 pm., the accused Nos.1 to 9 with their common intention went near her house and abused her in a filthy language and asked her to marry accused No.1- Ravi and if she does not marry him, she should not marry anybody and also abused her stating Gudashatti Mundi and asked her go somewhere and die. With this background, due to humiliation, victim Bindu made an attempt to commit suicide at 6.45 pm., in the first floor of her house by pouring kerosene and setting fire. Thereafter, she was taken to Nanjangud Hospital and subsequently, taken to K.R.Hospital, Mysore, but on 28.3.2007 at about 2.30 am., she succumbed to the injuries. Hence, a case was registered against accused persons for the offences punishable under sections 504, 306 r/w 34 of IPC. Accused Nos.1 to 9 appeared before the trial court and denied the charges leveled against them.
3. The prosecution examined PWs.1 to 16 and got marked Exs.P1 to P14 and M.Os 1 to 5. The statement of accused under Section 313 of Cr.PC was recorded. The trial Court after considering both oral and documentary evidence acquitted the accused persons.
4. The prosecution mainly relied upon the evidence of PWs.1 to 16 and out of PWs.1 to 16, PWs.1, 2, 4, 5, 13, 14 and 15 are the material witnesses and other witnesses have not supported the case of the prosecution. The learned HCGP appearing for the State would submit that the trial judge has not considered the evidence of these material witnesses even though they have supported the case of the prosecution. He would further submit that PW.1 who found the injured and PW.2 who took the injured to the hospital, both have categorically deposed that they have shifted the injured to the hospital. PW.3 is the PC who took the FIR. PW.4 is the father and PW.5 is the mother. PW.13 is the Doctor and PW.14 is the Investigating Officer and PW.15 is the grand mother. The trial court has given the reasoning that the witnesses who have supported the case of the prosecution are the interested witnesses and their evidence cannot be believed. The said approach of the trial court is erroneous. The learned HCGP mainly relied upon Ex.P1, the statement of injured which was allegedly made before the Doctor and the Police Inspector and contended that the same has to be treated as dying declaration. He submits that when there is a dying declaration of the victim, the trial judge ought not to have acquitted the accused persons.
5. Per contra, the learned counsel appearing for the accused would submit that it is the case of the prosecution that an incident had taken place at 6.00 pm., however, there is no material before the Court that an incident took place at 6.00 p.m., and none of the witnesses have spoken about the same. He would also submit that PW.2 in his evidence had categorically admitted that he alone took the injured to the hospital, but PW.1 claims that he also went along with PW.2 and there are contradictions in the evidence of PWs.1 and 2. He would further contend that PWs.4 and 5 are the father and mother of the victim and their evidence also does not support the case of the prosecution. Their evidence is also contrary to each other. It is elicited in their cross-examination that even the police had advised not to lodge any false complaint against the accused persons. Further, it is also emerged in their evidence that they had filed complaints against the accused baselessly and hence, the trial judge has rightly come to the conclusion that they are the interested witnesses. The evidence of PWs.13 and 14 also does not inspire confidence of the Court that victim herself has made statement before the police and their evidence is also contrary to each other. Hence, Ex.P1 cannot be relied upon to convict the accused persons.
6. Having heard the learned HCGP for State and also learned counsel appearing for accused and also keeping in mind the grounds urged in the appeal and the respective submissions of the learned counsel for the parties, the points that arise for consideration of this Court are:
1) Whether the trial court has committed an error in acquitting the accused?
2) What order?
7. Having heard the respective counsels and also on perusal of the records, it is seen that it is the case of the prosecution that an incident had taken place on 27.3.2007 in the house of the victim when all these accused persons went and threatened the victim to marry accused No.1 and abused her stating that if she does not marry him, they will not allow her to marry anybody else. They also abused her stating that go somewhere and die and also abused her stating Gudashatti Mundi . According to the prosecution, this incident had taken place at 6.00 pm. It is the case of the prosecution that due to the said incident and humiliation on the same day at 6.45 pm., the victim went to the upstairs of her house, poured kerosene on herself and tried to commit suicide. When the same came to the knowledge of PW.2, he shifted her to the hospital and subsequently, she succumbed to the injuries. The prosecution in order to prove the charges relied upon the evidence of PW.1.
8. Pw.1 states that the victim is the daughter of his elder sister and accused No.1 was insisting her to marry him. When the victim refused to marry accused No.1, all these accused persons came and threatened her. The aforesaid incident occurred on 27.3.2007 at about 6.30 pm. He witnessed the incident. The people who gathered near his house were stating that some flames and smoke are coming out of the first floor of the house of victim Bindu. Immediately, he went to the house of Bindu and found that she was set ablaze. Then, he extinguished the fire with the help of Bed sheet. In the meanwhile, PW.2 Ravindra brought an Autorickshaw and both of them took the victim to the hospital and thereafter, she was taken to K.R.Hospital, Mysore, where she passed away. It is stated in his crossexamination that prior to this incident, 3 to 4 days earlier an incident had taken place during which time accused persons came and quarreled near the house of the victim. Except that quarrel, no other quarrel had taken place in respect of the marriage of the victim. Further PW.1 states that a complaint was given three days earlier and the police have not registered any case. But, police have called the victim and secured the accused persons without registering the case advised them. He admits that after the death of victim Bindu, it was published in newspaper called as Mysore Kathe stating that Bindu was loving accused No.1 since last 2 years, but actually she was not loving accused No.1. It is suggested that the accused persons have not abused and harassed said Bindu and the said suggestion was denied. He admits that police have filed a case against him alleging that he damaged the autorickshaw of accused No.1. He also admits that he cannot state which parts of the body of victim were burnt. But he admits that he himself and Ravindra took the victim to hospital in an Autorickshaw and that he does not know who was driving the said Autorickshaw. He also admits that victim was not talking while going to hospital but she was demanding water. He admits that in Autorickshaw victim told about accused No.1 harassing her and Ravindra was present at that time. He also claims that after the first aid treatment, on the same day the victim gave statement before the Doctor and at that time, himself and Ravindra were present. But her parents were not present and some other persons had surrounded the victim while she was giving statement before the Doctor. He states that he was in the hospital till victim was taken to K.R.Hopsital, Mysore. Inspector Ragupathi and two police officials came to hospital. He says that the police have recorded the statement.
9. Pw.2 is the uncle of victim. In his evidence, he states that on 27.3.2007 at about 6.00 pm., all the accused came and pelted stones at the house of victim and abused her in a filthy language as gundasetty and also abused her stating to go and die. He pacified the said quarrel. Bindu had refused to marry accused No.1. But accused told Bindu that if she does not marry accused No.1, she should not marry any other person. Thereafter, he went to do his business and Bindu was alone in the house. She was weeping due to the incident. After sending the accused, he went to collect money of his flower business. When he came back around 6.45 pm., he saw people gathered in front of the house of Bindu. He went to the first floor and CW.11 was present and the face of Bindu was burnt. They covered her with a bed sheet and brought an Autorickshaw and took her to the hospital. The victim has revealed that she herself set ablaze by pouring kerosene. Bindu narrated all this before the Doctor in the Government hospital and the police have also video recorded the statement given by the Victim to the Doctor.
In the cross-examination he admits that he alone shifted the injured to hospital in an Autorickshaw. Victim Bindu was talking to him in the Autorickshaw and when he took the victim to hospital he was sent out and doctors took the victim inside the hospital and recorded the statement of victim and he also signed the statement recorded by the doctor. The doctor has told that she has given statement against 9 accused persons. During the recording of statement, the police inspector and compounder were there. He did not witness giving the statement by victim. Her father came to hospital at 9.30 pm. PW.2 also admits that a panchayath was held on 23.2.2007 and a complaint was given to the police i.e., prior to the incident. But the police have not registered the complaint. Likewise, they have given complaints before the police 2 to 3 times and police did not take any action against the accused. It is suggested that victim told before the police that she fell in love with accused and would marry him only. The said suggestion was denied. It is further suggested that his brother and sister-in-law did not agree to perform the marriage of victim with accused No.1 and hence, she committed suicide and the said suggestion was denied. He claims that accused persons have abused the victim in a filthy language, but he cannot state what are all the words used while abusing.
10. The other witness is PW.3 who carried FIR to the court and same was given on the next day at 2.00 pm.
11. Pw.4 is the father. He also reiterated that there was an incident three days prior to this incident. He claims that on 24.1.2007 he went to attend the funeral of their relative and accused persons came and assaulted his daughter. Hence, he took his daughter to police station and police secured accused persons and obtained an undertaking from them. During that time, the village elders were also present. The accused persons were causing harassment and abusing his daughter to go and die. He also repeats with regard to the incident of 6.00 pm., and he came to know about the same through his wife and doctor has recorded the statement of his daughter and on the advice of doctor, he took her daughter to K.R.Hospital, Mysore, where she succumbed to the injuries. In the cross-examination, he states that when a complaint was given against accused persons when they threatened that they are going to pour acid, the police called the victim and enquired her, but did not register any case.
He also stated that when he went to hospital, his daughter was in a position to speak and he also enquired with his daughter, but he has not given any statement to police in the hospital. He also admits that prior to the death of his daughter, when they gave complaints against accused four times, his daughter was called and enquired. It is suggested that his daughter told in the police station that she is in love with accused No.1, hence they have not taken any action and the said suggestion was denied. He also admits that through PW.2 another case was given against the accused persons with regard to abusing PW.2 s daughter when she was proceeding in the road and accused Chikkabettaravi holding her hand and her hair. It is also suggested in this regard that they gave a complaint that an attempt was made to commit rape and said suggestion was denied. He did not give any complaint when he came to know about the incident, when he went to hospital and he was providing treatment to his daughter.
12. Pw.5 is the mother. She also reiterated the evidence of PW.4. She was subjected to cross examination. In the cross- examination she admits that 4 to 5 times when they gave complaints the village elders used to settle the dispute among them. PW.5 also admits that in connection with her daughter Bindu, the same was discussed with the elders of village on several occasions. PW.5 categorically admits that when the complaint was given to the police, her daughter was called by the police and the elders of the village and they told that her daughter was having love affair with accused No.1 and this fact was known to the public 2 to 3 months prior to the incident. PW.5 further admits that accused No.1 is not equal to their status and the sister of the victim was given to marriage higher than their status and hence, they were having intention to perform the marriage of victim also to an educated and financially sound. PW.5 categorically admits that police have not recorded the statement of victim in her presence and that police had already recorded the statement and the victim gave statement before the police and doctor and the same was video graphed. PW.5 stated that PW.2 also gave a complaint against accused Nos.2, 6 and 9 after this incident and when he lodged the said complaint, the higher officials advised them not to give such false complaints. PW.1 further admits that 10 to 15 complaints were given and police scolded them when they filed said complaints.
13. The other witness is PW.13 doctor, who gave first aid to the victim and he states that PW.2 brought her to the hospital and he noticed burn injuries and thereafter, he sent information to the police and the same was acknowledged at 8.20 pm. Thereafter, police came around 8.40 pm., and made a request whether victim is able to give statement and he examined and told that victim is able to give statement and in this regard, he also made an endorsement on the statement of the victim. In the cross-examination, he admits that burn injuries are to the extent of 85% to 90%. It is suggested that if such burn injuries are found, the victim can be saved and he replies that it would be a miracle to save. He states that PSI- PW.14 recorded the statement of the victim and he made an endorsement on that. He states that he cannot say whether any relatives were present at the time of recording the statement and he cannot say what are all the statements given by the victim and he did not observe the same and he was only observing the physical and mental condition of the victim. He also states that he did not observe about the naming of the accused persons and whether she named the names of accused persons as named before him. He admits that if lips are burnt, it is very difficult to give any statement.
14. Pw.14 is PSI who recorded the statement. He claims that he recorded the statement of victim between 8.45 pm., to 9.15 pm., and after recording the statement he registered C.Misc.98/2007 and when he came to know about the death of victim, he registered FIR and sent the FIR to the Court and conducted investigation and registered the case. He was subjected to cross-examination wherein he categorically admits that he only completed the entire investigation and registered the case. He states that he did not enquire whether victim has given statement in front of anybody else prior to recording the statement by him. He states that he sent a request to the doctor at 8.45 pm., and doctor has expressed his opinion that victim is able to give statement. He states that he cannot tell in which room victim was getting treatment and same is not mentioned in Ex.P1 and also he cannot tell ward or room number in which statement of victim was recorded. He claims that while recording the statement, himself, doctor and his staff Girish were there. He did not find PWs.1 and 2 in the hospital and they may be available. He also states that the relatives of the victim did not come forward to give any statement before him.
15. Having considered the material available on record both oral and documentary evidence, it is noticed that the evidence of PWs.1 and 2 is contrary to each other. PW.2 claims that he went alone along with the victim to the hospital and PW.1 says that both PWs.1 and 2 went to hospital. PW.1 claims that victim was not talking when they were proceeding in autorickshaw and she was only asking for water. But PW.2 claims that she was talking in autorickshaw and she only revealed with regard to the incident. Though PW.2 claims that he was very much present at the time of incident at 6 o clock, but he claims thereafter he went to collect the money in connection with his business and PWs.4 and 5 were not present at the time of alleged incident taken place at 6.00 pm. The prosecution mainly relied upon the evidence of PWs.1 and 2 with regard to the incident and PW.1 states that he came to know about the incident through PW.2. However, there is no positive evidence before the court with regard to the incident taken place at 6.00 pm.
16. It is important to note that the learned HCGP vehemently contended that Ex.P1 statement of the victim has to be treated as dying declaration. Nodoubt, Ex.P1 is the statement given before the doctor as well as Investigating Officer as claimed by them. It is important to note that PW.13 doctor states that he gave intimation at 8.10 and same was acknowledged at 8.20 pm., by PSI and PSI came and requested at 8.40 pm. But PW.14 PSI claims that he recorded the statement of victim from 8.45 to 9.15 pm. It is also important to note that PW.13 states that he was not observing what statement victim gave before the police and he was only observing her physical and mental condition. PW.13 states that PW.14 recorded the statement and by that time, the relatives of the victim were also present. But PW.14 investigating officer states that doctor, himself and his staff Girish were there. PW.13 claims that PW.14 has recorded the statement and PW.14 states that the same is in the hand writing of his staff Girish. Hence, there are contradictions in the evidence of PWs.13 and 14 also with regard to the recording of statement of the victim. The evidence of PWs.13 and 14 is contrary to each other regarding the presence of the relatives. Hence, recording of the statement of the victim itself is doubtful. No doubt, PW.13 states that burn injuries are to the extent of 85% to 90%. Hence, this court also cannot come to a conclusion that a person who had burn injuries to the extent of 85% to 90% is not able to give any statement. Further, the evidence of PWs.13 and 14 is contrary to each other with regard to the presence of the persons while recording the statement. It is also important to note that though PW.14 claims that he went and recorded the statement of the victim and both doctor and investigating officer state that victim had pointed out the names of accused 1 to 9. But, the investigating officer did not register the case, instead he registers C.Misc., and case was registered only on the next day and FIR was sent to the Court after the case was registered on the next day. If really the victim mentioned the names of all the nine accused no explanation is forthcoming as to why the case has not been registered immediately and registered only C.Misc., case.
17. All these circumstances, clearly disclose that the document at Ex.P1 came in to existence only as an afterthought and the same does not inspire confidence of this Court to come to a conclusion that Ex.P1 can be treated as dying declaration. The very existence of document Ex.P1 and the statement of victim was recorded in the presence of doctor-PW.13 by PW.14, is doubtful. The very endorsement of the doctor also creates doubt as he claims that he did not observe anything about the statement given by the victim and PW.14 Investigating officer is also not in a position to state whether anybody else were present when the statement of the victim was recorded. The very presence of the doctor is doubtful and recording of the statement by P.W.14 is also doubtful. Hence, it is clear that Ex.P1 came in to existence in doubtful circumstances. It is important to note that while invoking section 306 of IPC, there must be a direct material with regard to abetment to commit suicide. In the instant case, though prosecution case was that an incident took place at 6.00 pm., and victim committed suicide at 6.45 pm., in order to link the earlier incident at 6.00 pm., there is no material before the court
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and none of the witnesses speak with regard to the earlier incident. The evidence of PW.2 regarding earlier incident also not inspires. When there is no immediate cause for taking the extreme step to commit suicide, this Court cannot form an opinion that there was an abetment to commit suicide. Apart from that, the evidence of PW.5 mother is very clear that when they gave complaint, the police and elders of the village called the victim and thereafter told that victim was fell in love with accused No.1. The evidence emerged in the cross-examination of PW.5 is also clear that said fact was known to everyone 2 to 3 months prior to the incident of committing suicide by the victim. Hence, it is clear that there was love affair between the victim and accused No.1, therefore, the victim was not agreeable to marry any other person when PWs.4 and 5 made their attempts to perform her marriage with some other person and all these ingredients clearly show that there was no ingredient for invoking Section 306 of IPC. 18. It is also important to note that the witnesses who have been examined before the trial court are all relatives of the victim and PWs.4 and 5 and none of the independent witnesses have been examined and the said interested witnesses have supported the case of the prosecution. Therefore, there is no error on the part of the trial court in considering the evidence of PWs.1 to 4, 5, 13 and 14, hence, I am of the opinion that this Court cannot find fault with the trial court and not a case to reverse the finding of the trial court. It is settled law that the appellate court can reverse the judgment of the trial court only when the court finds perversity and mistake apparent on record that the trial court has not considered the material on record. The learned trial judge while acquitting the accused also formed an opinion after discussing several judgments that Section 306 of IPC cannot be invoked and the witnesses who have supported the case of the prosecution are all relatives and interested witnesses and their evidence cannot be relied. Hence, I do not find any error committed by the trial court in acquitting the accused persons and it is not a fit case to interfere with the finding of the trial court. 19. In view of the discussion made above, I pass the following: ORDER The appeal is dismissed.