STATE OF KARNATAKA Vs. NAGAMMA AND OTHERS

JUDGEMENT

(1.) This is yet one more of those gory and ghastly cases of bride-burning that has come up before the Court and ironically enough one more of the series of cases where it has ended in an acquittal.

(2.) In this instance, the deceased Kalpana had sustained 100% bums and was brought to the hospital on the morning of 23-1-1991 in a serious condition. It was alleged that this was one more of the cases where cash of Rs. 13,000-00 had been paid apart from 4 grams of gold ornaments when the marriage took place on 21-5-1990 and the husband as also his sister and mother are alleged to have been torturing her to bring another Rs. 10,000-00 as and by way of additional dowry. Kalpana alleged that when she had gone into the bath room to light the oven, that the accused poured kerosene oil on her through the window as a result of which her clothes caught fire and she further alleges that they held on to the door tightly so that she could not even run and save herself though she screamed loudly. It was reported to the authorities that it was a case of accidental bums while cooking. Kalpana's mother was informed about the incident and she arrived at the hospital early the next morning. Kalpana's condition was bad and the Investigation Officer recorded her dying declaration on 25-1-1991. Her condition deteriorated and she died on 27-1 -1991. The police, principally on the basis of the complaint from Kalpana's mother who stated that her daughter was being tortured with the intention of extorting more dowry, arrested the husband, his sister and his mother and on completion of the investigation they were charge-sheeted and put up for trial before the Court of Sessions. We need to mention here that there is some evidence from two of the neighbours but this does not assist the prosecution very much because they seem to have suggested that the relationship between the parties was good, in any event these two witnesses were hostile. The mother has very clearly alleged that the accused were not satisfied with the dowry received by them and that they had tortured her daughter and she also stated that her daughter had clearly told her that it was the accused who had set her on fire after pouring kerosene oil on her clothes. The strongest piece of evidence in the case is the dying declaration in which Kalpana has very clearly stated that the accused poured kerosene oil on her through the window when she was seated in the bath room and was lighting the oven. The doctors who have treated Kalpana have also given evidence in this case and we shall refer to it at a subsequent stage because that evidence is very crucial. The learned trial Judge after assessing the evidence very carefully has acquitted the accused on the ground that the charges could not be substantiated and the State of Karnataka has assailed the correctness of the order of acquittal through the present appeal. We need to observe in passing, that it is more necessary to ensure that the investigation and the conduct of the case is done at a highly professional and honest level particularly in these categories of anti-social offences and that when the case fails for want of evidence of the requisite quality and for want of proper conduct and presentation of the case, it is of little consequence that the State tries to undo the damage merely by filing appeals against the acquittals. Where the record has been deficient or where the record is in a disastrous condition before the lower Court, there is very little that even the most competent prosecutor can do in the High Court. It would be desirable if this aspect of the matter is seriously borne in mind by the Government if at all serious about women's welfare.

(3.) Mr. Koti, learned Additional SPP has done a valiant job in a very determined manner, and a very strong effort was made to convince the Court that the dying declaration recorded in this case must be relied upon. He has started by referring to the law on the point and demonstrating to us that it is now well crystal used law that a conviction in a case of this category can rest solely on dying declaration, learned Addl. SPP is right as far as his submission is concerned, but we need sound a word of caution insofar as in such situations where liberty of the accused is at stake, that a Court will be extremely rigorous while ensuring the tests of absolute scrutiny. In this regard, Mr. Koti, learned Addl. SPP has demonstrated to us that the Investigating Officer has very clearly established that the dying declaration of Kalpana was recorded on 25-1-1991 and that he had requested the doctor to give him permission for this purpose. He also relies on the evidence of PW3 Dr. B.P. Vishwananth who has deposed to the fact that he did put some questions to the deceased and that he was satisfied that she was conscious and in a position to make a statement. Mr. Koti points out to us that the doctor's evidence has gone unchallenged and that this evidence provides the requisite certificate that a Court would insist upon before a dying declaration can be accepted. The reason for this argument is because PW3 instead of certifying on the dying declaration that the patient is conscious and that the patient is in a position to make a proper statement, has on the other hand only written the words before me. In other words, he has ratified the fact that the statement was recorded in his presence. Mr. Koti submitted that in situations such as this, the Court should not be extremely rigorous and that the Court should accept the evidence of the doctor as supplementing the validity of the dying declaration. He further points out that the Investigating Officer has very clearly indicated that the dying declaration was recorded by him and nobody else was present at that time and Mr. Koti further emphasised the fact that the dying declaration implicates all the three accused in no uncertain terms. He submits that these heads of evidence are more than sufficient to record convictions under all the charges that were framed against the accused and that the acquittal order is liable to be straightaway set aside. The respondents learned advocate drew our attention to a Division Bench decision of the Bombay High Court, Vithal Sadashiv Gaikwad Vs. State of Maharashtra, 1994 (2) Cr.LJ 2035, to which judgment one of us (Saldanha, J) was a party. The Division Bench has very clearly laid down that it is absolutely essential that the dying declaration must bear a certificate, that the maker of that statement was not only fully conscious but that the person was in a mentally fit condition to make the statement. This pre-supposes the fact that the physical condition of the patient has been assessed and that more importantly, the mental condition of the patient has been very carefully examined by the doctor. We clarify here that this would involve a study of over-all conditions of the patient and a verification of the mental condition of the patient viz., as to whether the patient's faculties are working and above all, as to what is the mental condition of the patient in relation to the levels of pain and most importantly the after effects of various drugs and medications that have been administered. Where the injuries are serious or for that matter in burning cases where the levels of pain would be excruciating, the doctors concerned will have to take into account the physical and mental shock and trauma which the person has undergone the capacity of the person to bear up with all these factors, the effect of pain killers, tranquilisers and other drugs that may have been given, the effect of injury such as loss of blood etc., and having regard to all these, whether the patient is in a position to clearly and logically recall, recreate and reproduce the incident and to give cogent and correct answers to the questions put by the person recording the dying declaration. One of the reasons why the Courts have preferred that a dying declaration must be as far as possible recorded in question and answer form and in the language best known to the maker of the statement is because the Court desire that it should be as far as possible a perfect and true record of what has been pointed out.