SIDDESHA Vs. STATE

JUDGEMENT

(1.) THIS appeal which concerns one more sad and horrifying wife burning instance is directed against the judgment dt. 13-2-1995 in Sessions Case No. 49/1992 from the Court of the Principal Sessions Judge at Hassan. The prosecution alleged that deceased-Vedavathi had been married to Accused No. 1 Siddesha about two-and-half years prior to the date of incident which is 13-2-1992. The couple were living with Siddesha's parents accused No. 2 Mallamma and accused No. 6 Muddegowda as also with the sister Suma and brothers Manjunatha and Virupaksha. The prosecution alleges that on the evening of 13-2-1992 the six accused forcibly dragged deceased- Vedavathi to the bathing room of their house, poured kerosene on her and that accused No. 1 set her clothes on fire. Vedavathi screamed in pain at which time the accused themselves poured water and put out the flames, they changed her clothes and thereafter took her to the hospital. In her statement to the doctor, Vedavathi stated that she was being constantly harassed and tortured because the accused had originally demanded a dowry of Rs. 25,000/- plus certain items of jewellery and that her mother and brother were only able to pay Rs. 10,000/- and the jewellery and that the accused were demanding that she get the balance Rs. 15,000/- and since she had failed to ensure that this money was paid that they assaulted her and set fire on her. The police Head Constable PW. 20 came to the hospital and recorded Vedavathi's complaint which is treated as the F. I. R. and which is Ex. P. 18 in which she has elaborately described the background to the incident. At that point of time, the version put forward by her which tallies with the version given to the doctor, was to the effect that because of the assaults on her and the constant torture, that Vedavathi has poured kerosene on her clothes and committed suicide. Since her condition was rather bad, she was referred to the Government Hospital at Chikmagalur. After admission to the hospital there, the P. S. I. who is PW-21 recorded her statement which is in fact a dying declaration on 18-2-1992. In this statement, Vedavathi has indicated that her husband and the family members who took her to the hospital had threatened her that they would finish off her brother if she implicated any of them and that she should at all times tell the doctor that it was a case of attempted suicide. Vedavathi has stated that on the evening of the incident her husband had assaulted her, that accused No. 2 the mother-in-law had caught her by the hair and that all the accused had dragged her to the bathroom and poured kerosene oil on her and that it was the husband Siddesha who set her clothes on fire. This is the version that she has relayed to her mother PW-1 and to her brother PW-18. Vedavathi died on 19-2-1992 and it is of some relevance to mention that we have on record the evidence of PW. 7 Sudha who is a lady social worker and who claims to have been visiting PW-17 Geetha who was a burns patient in the adjoining bed. Both PW-7 and PW-17 also deposed to the effect that the version as set out in the dying declaration Ex. P-9 is correct. Pursuant to the death of Vedavathi, the police arrested all the six accused and on completion of the investigation sent them up for trial. The trial Court acquitted accused Nos. 3, 4 and 5. Accused No. 1 and accused No. 2 were convicted of the offences punishable under S. 304-B, I. P. C. and awarded sentences of 7 years' rigorous imprisonment and fine of Rs. 5000/- each in default, to undergo rigorous imprisonment for one year each. They were convicted of the offence punishable under Section 498-A, I. P. C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/- each in default, to undergo simple imprisonment for one year. Accused Nos. 1, 2 and 6 were also convicted of the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and awarded a sentence of rigorous imprisonment for six months, substantive sentences to run concurrently. The present appeal is directed against the aforesaid convictions and sentences.

(2.) AT the hearing of the appeal, the appellants learned Advocate seriously assailed the findings recorded by the trial Court which in this case are effectively based on the two documents Ex. P-18 which is the first statement of the deceased Vedavathi recorded on 13-2-1992 and which incidentally has been treated by the investigating authorities as the F. I. R. and the second statement or dying declaration which was recorded on 18-2-1992 at about 10. 25 a. m. and which is Ex. P-9. The first head of attack proceeds on the footing that these documents essentially contradict each other. What the learned counsel emphasises is that at the earliest point of time, deceased-Vedavathi has stated that she had attempted to commit suicide though she has given certain reasons for it which do incriminate the accused. Five days later she has virtually somersaulted and materially altered the allegations to the extent that she has stated that the accused persons poured kerosene on her clothes and set her on fire. The learned Advocate submitted that in a case where there are only very minor variations that a Court may either reconcile them or may also overlook them provided it does not essentially affect or alter the main thrust of the accusations. He submitted that in this case the deceased has swung from suicide to homicide and with such grave and material alterations that no Court can rely on either of these dying declarations. I do not need to recount the case law on the point which has been relied upon by the learned counsel because the legal position is very well crystallized to the extent that if there are multiple dying declarations and the deceased has given different versions at different times then a Court will be left with no option except to hold that it is unsafe to rely on any of the particular statements to the exclusion of the others. The learned Advocate also submitted that in those of the cases such as the present one where it is not possible to reconcile the diametrically opposing versions that it would be totally unsafe for the Court to base a conviction virtually on this material. On the other hand, the learned Addl. S. P. P. submitted that if a particular statement be it the version at the earliest point of time or the one which emerges later when the deponent was in a better position to tell the truth, meets with the confidence of the Court, that it is certainly open to accept that part of the evidence to the exclusion of the other. What he relies upon is that undoubtedly at the earliest point of time Vedavathi indicated that she has attempted to commit suicide but he states that it is one of the rare and unusual cases in which at a later point of time the deponent has very clearly explained and indicated why she had put forward something other than the truth at an earlier stage and he submits that if the explanation appears to be quite plausible that it would then mean that the subsequent and better statement virtually substitutes for the earlier one which would really have to be treated as being amended in the light of what has been pointed out. It is his submission that there is supportive evidence in this case from the oral evidence of the prosecution witnesses particularly PW-1 Eramma and PW-7 Sudha, the social worker as also PW-17 Geetha who was the patient in the adjoining bed, all of which fully supported the view that Ex. P-9 which is the dying declaration recorded on 18-2-1992 is in fact a reliable document. I may mention in brief that PW-1 Eramma as also the brother PW-18 Mahendra are quite categorical about the generality of the allegations and in particular, Vedavathi's charge that she was being ill-treated and tortured for purposes of extorting the balance of the dowry amount. The evidence even indicates that accused No. 2 had gone to the extent of stating to the deceased that the purpose of getting rid of her was in order to ensure that her son accused No. 1 could remarry and secure a handsome dowry. The learned Counsel submitted that this evidence has got to be looked at in the light of Vedavathi's explanation that she had been threatened by the accused persons that if she implicated them in the incident they would kill her brother Mahendra and that this was the reason why she put forward the suicide theory. The submission proceeded on the line that if the explanation was a valid and correct one, then it would have the effect of nullifying the versions put out in Ex. P-18 and upholding that which appears in Ex. P-9.

(3.) IN order to resolve this controversy, I have very carefully assessed the evidence of PW-1 Eramma, PW-7 Sudha who is the social worker and PW-17 Geetha who was the patient in the adjoining bed. PW-17's evidence does support the view that deceased-Vedavathi was constantly talking to her and that she consistently told her about the problem relating to the dowry and the ill-treatment at the hands of the accused and lastly, the fact that the deceased was pressurised into putting forward an incorrect version at the earliest point of time purely due to fear. This view is totally reinforced by the evidence of PW-7 Sudha who is a social worker who was admittedly visiting the hospital for purposes of meeting PW-17 Geetha and who had occasion to talk to the deceased. Unless the deceased had in fact told her about the harassment and the subsequent manner in which her clothes were set on fire by accused No. 1, it is most unlikely that an independent social worker like PW-7 would have fabricated the evidence against the accused with whom she had absolutely no connection or adverse relationship. If this evidence along with that of the mother and brother who are PW-1 and PW-18 is to be accepted, we have in this case an unusual situation where two conflicting dying declarations get resolved and the conflict gets eliminated, If the accused were not in any way responsible for the death of Vedavathi, it would be difficult to understand as to why there would be any need to either put her on caution or to threaten her. Vedavathi is a simple rustic girl and it would be too much to assume that she would have the capacity to fabricate a statement of this type. It is also unlikely that this could have been done at the instance of the police because in that event we would not have had the independent evidence of PW-7 and PW-17 to support the prosecution. In totality, therefore, we are left with a situation wherein there is a perfectly plausible and acceptable explanation for the divergence between the two statements. In the majority of the reported cases, there was no such explanation on record and there was no material evidence to support such an explanation. This is a rare and an unusual case but it also throws up a new angle of the law in so far as it would have to be held that where the divergent statements are capable of being fully and totally reconciled that the Court need not reject them merely because prima facie they read differently.