IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.631 OF 2013 BETWEEN:
1. ASMA BANU W/O. SHAHBUDDIN, AGED ABOUT 36 YEARS.
2. PARVEEZ S/O. ABDUL ZABBAR, AGED ABOUT 38 YEARS.
3. WASIM @ WASIM PASHA S/O. ABDUL JABBAR, AGED ABOUT 36 YEARS.
ALL ARE RESIDING AT REVENUE SITE, 14TH CROSS, HYDERALI BLOCK, GHOUSIA NAGAR, MYSORE.
... APPELLANTS (BY SRI HASHMATH PASHA, SENIOR COUNSEL, FOR M/S. HASHMATH PASHA ASSOCIATES) AND:
STATE OF KARNATAKA BY UDAYAGIRI POLICE, MYSORE, REPRESENTED BY STATE PUBLIC PROSECUTOR.
... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 28-5-2013 PASSED BY THE PRESIDING OFFICER, F.T.C.-IV, MYSORE, IN S.C. No.220 OF 2012 CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34 OF THE I.P.C.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 4-2-2019 COMING ON FOR PRONOUNCEMENT, THIS DAY, K. NATARAJAN J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T This appeal is preferred by accused Nos.1 to 3 being aggrieved by the judgment of conviction and order of sentence dated 28-5-2013 passed by the Presiding Officer, Fast Track Court-IV, Mysore, in Sessions Case No.220 of 2012.
2. We have heard the learned counsel for the appellants Nos.1 to 3 as well as the learned Additional State Public Prosecutor for the respondent – State.
3. Before adverting to the arguments addressed by the learned counsel, it is worth to mention the factual matrix of this case.
4. The State, by Udayagiri Police, Mysore, on 11-2-2012, registered a case in Crime No.22 of 2012 for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code, 1860 (for short, the I.P.C.’) based upon the statement of the deceased, Fareen Taz, recorded in K.R. Hospital, Mysore, made before P.W.14 and P.W.15. Later, the deceased succumbed to burn injuries in the hospital. Therefore, the charge-sheet was filed for the offence punishable under Section 302 read with Section 34 of the I.P.C. The statement of the deceased made before the Police, which is later turned into a dying declaration, marked as Ex.P.6 wherein, the deceased alleged that her father, P.W.3, Shahabuddin @ Sathu, has three wives. Accused No.1 is the second wife. Her mother, P.W.12, Munni Taj, is the third wife to her father-P.W.3 and having two children and her mother had three children through her first husband and she was the eldest daughter born through first husband. Accused No.1 was quarreling with P.W.3 as he left accused No.1 and married her mother, P.W.12. On 11-2-2012, at about 12:30 p.m., when she was in the house, her mother had gone to purchase grocery, her brother and sisters were playing outside, her father had gone to work, accused Nos.1 to 3 came to her house, took up quarrel with the deceased, at that time, accused No.1 held her, accused No.2 poured kerosene on her and accused No.3 lit fire with match-stick and went away. The deceased came down from the first floor by screaming and after hearing the screaming sound, P.W.2, the neighbour of the deceased, brought a blanket. P.W.1, P.W.2 and others extinguished the fire. Then, immediately, they called an auto-rickshaw. P.W.6, the Driver of the auto-rickshaw, brought auto and shifted the deceased to K.R. Hospital. In the meanwhile, P.W.3, the father of the deceased, was intimated about the incident. Later, a Memo was sent by the Hospital to Udayagiri Police.
5. P.W.14, R. Pruthviraje Urs, Assistant Sub- Inspector of Police, went to the hospital, obtained the permission of the Doctor and recorded the statement of the deceased in the presence of P.W.17, Dr. Prakash S.S., and P.W.15, C.P. Doreswamay. After coming back to the Police Station, he registered a case, thereafter the Investigating Officer, visited the spot, prepared the panchanama, recovered the kerosene can and match- stick. On the next date, the accused were arrested and sent to judicial custody. During treatment, the deceased died on 15-2-2012 at 8:10 p.m. Accordingly, the Police have investigated the case and after recording the statement of witnesses, obtained post-mortem examination report and filed the charge-sheet against the accused. After the committal proceedings, the trial Court secured the presence of the accused persons and charges were framed against them. They pleaded not guilty and hence, the accused were put on trial.
6. The prosecution has examined in all 18 witnesses as P.W.1 to P.W.18 and got marked 14 documents as per Ex.P.1 to Ex.P.14(a) and also marked two material objects as per M.Os.1 and 2. The defence also got marked 6 documents as per Ex.D.1 to Ex.D.6(a) during cross- examination of the prosecution witnesses. After the closure of the evidence on prosecution side, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. Accused denied the incriminating circumstances against them, but not entered any defence. After hearing the arguments, the trial Court found accused Nos.1 to 3 guilty for the offence punishable under Section 302 read with Section 34 of the I.P.C. and convicted and sentenced them to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of one year and out of the fine amount, it was ordered to pay Rs.25,000/- as compensation to P.W.12. Being aggrieved by the same, the accused filed this appeal on various grounds.
7. Sri Hashmath Pasha, the learned Senior Counsel for the appellants/accused, contended that the entire prosecution case is based upon the dying declaration of the deceased made before P.W.14. Even though the deceased was survived for more than four days till 15-2-2012, the Investigating Officer has not made any attempt to secure the presence of Taluka Executive Magistrate for recording the dying declaration and statement of the deceased alone cannot be considered for basing conviction. He would further submit that even otherwise, it is not corroborated with any of the witnesses since the deceased alleged to have told before P.Ws.1 and 2 while shifting to the hospital, accused Nos.1 to 3 committed the offence, but there was no names of the accused mentioned in the case history sheet of the patient maintained in the hospital as per Ex.P.10 and the evidence of P.Ws.4 and 5 even P.W.6 do not implicate accused Nos.2 and 3. It is further contented that at one stretch, the victim said that, appellant No.1 and her brothers committed the offence, she named only accused No.1 and in another stretch, she has implicated accused No.3 and not accused No.2, therefore, when the dying declaration of the deceased was indefinite, it requires corroboration of other witnesses, hence, involvement of the accused is doubtful. Though it is alleged that, accused No.1 has committed the offence, but the evidence of P.W.3 was not satisfactory for implicating accused No.1. The learned senior counsel also contended that none of the witnesses either P.Ws.1 and 2 or P.Ws.4 to 6 have stated anything about the presence of the accused persons on the spot, immediately or soon after the incident, it is not the case of the prosecution that, the accused were found on the spot. The prosecution story was silent in this regard and it is contended that accused were arrested in their house on the next day morning. If the accused have committed the offence, they would not have stayed in their house. Therefore, he has contended that the benefit of doubt shall be extended to the accused. He also contended that there is no motive for commission of offence by the accused persons. Apart from that, as per the evidence of P.Ws.3 and 7, the sisters and the brother of the deceased have seen the accused while running away from the incident spot, but the prosecution failed to examine the child witnesses, who are natural witnesses, which is fatal to the case of the prosecution. Apart from that, P.W.1 and 4 are not reliable, who are interested witnesses, therefore, their evidence shall not be acceptable. Apart from that, even though P.W.3 was present and his signature was obtained on Ex.D.2 - M.L.C.
Register Extract, the names of the assailant were not mentioned, except showing burn injuries. Accused No.3 is a rowdy-sheeter and many numbers of cases are registered against him. Therefore, conduct of this witness is not good and therefore, his evidence is not believable. It is contended that, on perusal of Ex.P.6, there was some manipulation on the bottom of the document. It is not natural flow and there was some restriction in the hand writing, there is no reasons for concluding the entire thing in first page itself, they left blank in second page. Therefore, it creates a doubt, but the Court below not properly appreciated the evidence and the document. There is lot of contradictions in the statement of witnesses, which was brought in the evidence of the Investigating Officer, the same was not considered. Therefore, he prayed for allowing the appeal and to set aside the judgment.
8. Per contra, Sri Vijayakumar Majage, the learned Additional State Public Prosecutor, strenuously argued that at the time of shifting the deceased to the hospital, the victim has disclosed the names of the accused persons to P.Ws.1 and 2 and the same is also heard by P.W.6 - Driver of the auto, and they have stated the same before the Court. These witnesses are natural witnesses and independent witnesses. Their evidence corroborates with the victim’s dying declaration - Ex.P.6 recorded by P.W.14. Ex.P.6 - statement of the victim becomes dying declaration, after the death of the deceased, previously, it was only statement to register a case against the accused to put the law into motion. P.W.15 - Sri C.P. Doreswamy, Police Constable, has clearly stated that he has written the statement as narrated by the victim.
P.W.17 - Dr. Prakash S.S., who gave the certificate of fitness in respect of the condition of the victim and he was also present while recording the statement and their signatures have been obtained in Ex.P.6 and it is also clear that, a carbon copy was also taken and in order to avoid the impression on the page, they have not used second page and the same was explained by the Doctor in his cross-examination. Even without corroborating any other witness, the Court can rely on the sole statement of the deceased which is dying declaration and there was no apprehension that she was in critical condition while recording her statement. Therefore, the Investigating Officer has not requested the Tahsildar for recording the dying declaration. There is ample evidence in the dying declaration. It is further argued that, P.Ws.1, 2 and 6 have clearly stated that the victim told the names of the accused. Apart from that, Ex.P.10 – case history sheet of the deceased is a public document written by the public authorities which also corroborates the evidence of independent witnesses, even on excluding the evidence of parents, the prosecution establishes its case against the accused beyond reasonable doubt that they have committed the offence. Therefore, it is contended that there is no illegality or error committed by the trial Court in the impugned judgment. Therefore, he prayed for dismissing the appeal.
9. Upon hearing the arguments of the learned counsel on both side, it is necessary to have a cursory look at the prosecution evidence before the Trial Court. P.W.1, Aleem Pasha, deposes that on the date of incident, when he was in his shop, he heard that fire was set to the house of P.W.3 and also heard hue and cry, he went there and at that time, he found the deceased with burning flames on her body and was coming down from upstairs. She was shouting as bachao.. bachao.. (‘save.. save..’) and he approached the opposite shop owner, Fazil Ahamad, who brought the gunny bag, they tried to extinguish the fire, by that time, P.W.2 brought the blanket and with the help of blanket, they extinguished the fire. At that time, the deceased told that accused Nos.1, 2 and 3 poured kerosene and lit fire on her. They called an auto-
rickshaw and shifted the deceased to K.R. Hospital, while on the way, the deceased told to save her and again she informed to P.Ws.1 and 2 that accused Nos.1 to 3 poured kerosene and lit fire on her. Later, she died after four to five days. P.W.1 is the neighbour of P.W.3 and states that P.W.3 is having two wives, there was some quarrel in respect of the house, therefore, the accused were waiting for a chance and assaulted the deceased.
9.1. P.W.2, Akila @ Mujeen, who is also neighbour of P.W.3. She has stated that on 11-2-2012 at about 12:00 p.m., when she returned back after purchasing the grocery from the fare price shop, she was about to bring a tea for her husband, at that time, she heard the noise of quarrel and P.W.3’s daughter was burning with fire. She went there, at that time, P.W.4 was extinguishing the fire and some gents requested her to bring blanket and she went to bring the blanket from her house and with the help of the blanket, they extinguished the fire. When she enquired with the deceased, the deceased told her that accused Nos.1 to 3 have set fire on her. P.W.1 and herself have shifted the deceased in an auto-rickshaw to the hospital. On the way to the hospital, the deceased again told that accused Nos.1 to 3 poured kerosene and lit fire on her. They got admitted the deceased to the hospital. Later, the deceased died after four days of the incident. She also gave statement to the Police. The remaining part of the evidence of P.Ws.1 and 2 will be discussed little later while appreciating the dying declaration.
9.2. P.W.3, Shahabuddin @ Sathu, who is the father of the deceased has deposed that he is working as a Tourist Guide and residing in the house belonging to him at Ghousia Nagar No.1009. He has three wives. First wife is Asma Banu, second wife is Asma Taj (accused No.1) and third wife is P.W.12 and stated that he has given divorce to his first wife. He also stated that P.W.12 had three children through her first husband and after marrying P.W.12, he has two children. The deceased was the daughter of P.W.12 born out of her first marriage with some other person. Accused No.1 used to quarrel with him and asked him to join their company. He further deposes that on the date of incident, he went out. When he was near the Church, at about 12:45 p.m., he received a phone call from P.W.7 stating that accused persons have lit fire on the deceased and she was screaming. P.W.1 also informed the same over phone and asked him to come soon. When he came near the house, he came to know that P.Ws.1 and 2 have already shifted the deceased to the K.R. Hospital, therefore, he went to the hospital. P.Ws.1 and 2 were present in the hospital. He also saw the daughter, who had sustained burn injuries. He also deposed that on enquiry with his daughter, she told that accused Nos.1 to 3 lit fire by pouring kerosene on her. When he asked about the mother, she told that her mother had gone to bring mutton. He also stated that at that time, his children namely Sumaiah Banu, Mohammed Kaif and Afreen, who are aged five, six and seven years respectively witnessed that accused Nos.2 and 3 were running by jumping the compound and accused No.1 went through front door. When the deceased screamed for help, P.Ws.1 and 2 along with other persons extinguished the fire and P.Ws.1 and 2 shifted the deceased to the hospital. Police came to the spot on 12-2-2012 and prepared spot panchanama, seized kerosene can - M.O.1, match-stick-M.O.2 and he identified the same and gave statement to the Police. His evidence will be discussed little later.
9.3. P.W.4, Fazil Ahamed, who is running furniture shop in front of the house of P.W.3, deposed that P.W.5 has computer shop in the building of P.W.3. He heard the screaming of the deceased and she was burning with fire. He went there, but since the deceased had no clothes on her, he informed the neighbouring lady. At that time, one of his relatives, P.W.1, came there. P.W.1 and others extinguished the fire. He says because the deceased was a girl and at the time of burning of fire, since she had no clothes on her, he did not go near her. So far as this witness is concerned, he saw the deceased coming down by screaming with flame of fire, he has not implicated any person in his evidence. However, during cross- examination, the learned counsel marked Ex.D.4 – statement before the Investigating Officer that he has not given statement before the Police that he has informed P.W.3 about the incident, and further in his cross- examination, Exs.D.4(a) and (b) were marked. This witness has not implicated any of the accused, except stating that he is running the shop in front of the house of P.W.3. In the afternoon, he saw the deceased screaming and asked the help of neighbouring lady to extinguish the fire, i.e. P.W.2. This witness is a natural witness and he is unable to say the name of the deceased and therefore, even if Exs.D.4(a) and (b) marked in the cross-examination that will not help the accused. On the other hand, though he has stated on the date of incident, he saw 15 to 20 persons gathered and unable to say the name of those persons and he never went near the victim girl, therefore, except the circumstances that he has witnessed the burning of the deceased with fire, no other incriminating evidence against the accused persons. Since the burning of the deceased with fire was not in dispute, therefore, there is no much significance in the documents marked by the defence in his cross- examination.
9.4. P.W.5, Pathu @ Khizer, deposed in his evidence that he is running a computer center in the building of P.W.3. He knows P.W.3 and he having two wives and five children. On 11-2-2012 at about 12:30 p.m., since there was no power in his shop, he went to drink tea. At that time, P.W.4 informed him that daughter of P.W.3 was calling him. After taking the tea, when he came back, people gathered and with a help of tarpaulin, they extinguished the fire on the deceased. He further says that deceased was telling that accused Nos.2 and 3 have lit fire on her. He further says that, the victim was taken to hospital in an auto-rickshaw and identified Parveez and Wasim as accused Nos.2 and 3 respectively. As per the evidence of this witness, he heard from the deceased that accused Nos.2 and 3 have lit fire on her and he also identified accused Nos.2 and 3 in the Court. In the cross- examination, he has stated that the Police called him to the Police Station and obtained his statement and no other persons were present at that time. He further confirms in his statement that the deceased told that the accused Nos.2 and 3 lit fire on her. The learned counsel for the accused suggested that he used to chit-chat with the deceased and since when the deceased called him, he did not visit her house, therefore, due to angry, the deceased has committed suicide by pouring kerosene and litting fire on herself. The same was denied by him stating that he is not aware about it. In the cross-examination, he has stated that he is married and having a child and unable to say the date of birth of his child and his date of marriage. Except the same, nothing has been elicited to disbelieve this witness in respect of shifting the deceased to the hospital by P.Ws.1 and 2 and as per his evidence, the victim told that accused Nos.2 and 3 burnt her. The arguments of the learned counsel for the accused in respect of implicating accused Nos.2 and 3 will be considered little later.
9.5. P.W.6, Mohammed Waseem, the auto Driver who shifted the deceased to hospital, has deposed that he is running an auto-rickshaw. On 11-2-2012 at about 12:30 p.m., he came near Ghousia Nagar, Sultan Road for drinking tea. At that time, four to five persons came by running and requested him to bring the auto to shift the victim to the hospital. Immediately, he came to the incident spot. Two persons along with the victim boarded the auto-rickshaw. On the way to the hospital, the victim girl told that she will not survive and accused No.2-Parveez and accused No.1-Asma Banu burnt her. Then, after dropping them to the hospital, he went away. He also deposed that since he has not seen accused Nos.2 and 1, he is unable to identify them, who were present before the Court. During cross-examination, nothing has been elicited by the learned counsel to disbelieve this witness and he has confirmed that Police recorded his statement on the next date of the incident. He has not met any of the relatives of the deceased. In the cross- examination, it was suggested that he has not stated before the Police that the victim told in the auto that accused Nos.2 and 1 burnt her. There is some discrepancy in his evidence that in his chief-examination, he has stated that deceased told accused Nos.1 and 2 burnt her. He has stated that he has not seen the hands of the deceased, which was fully burnt. This witness being the circumstantial witness, who shifted the victim to the hospital in his auto-rickshaw and stated what he has heard from the deceased, he has stated before the Court. In respect of non-mentioning the name of accused No.3 will be discussed later.
9.6. P.W.7, Afzar Pasha, stated in his evidence that he is running a grocery shop and on 11-2-2012 around 12 noon, P.W.12 came to his shop for purchasing groceries and after purchasing, she went to mutton stall. After five minutes, younger daughter of P.W.3, aged seven years, came running, asking for her mother and he told that her mother went to mutton stall to bring mutton. At that time, girl told that her elder sister, Fareen Taj, has been set ablaze by pouring kerosene and also requested him to send her mother immediately. Then he had gone near the house, by that time, the deceased was already shifted to the hospital. Police also recorded his statement. During cross-examination, nothing has been elicited to disbelieve his evidence and as per evidence of this witness, he came to know through younger daughter of P.W.3 that somebody put fire on the victim girl. Since the deceased was admitted to the hospital with burn injuries was not in dispute. Therefore, the evidence of this witness is not much significant, except he came to know about the incident.
9.7. P.W.8, Nasir Khan, is witness to Ex.P.2 – inquest mahazar, which is prepared by the Police on the dead body of the deceased, which is not in dispute.
9.8. P.W.9, Amzad Pasha, is a pancha witness to Ex.P.1 - spot panchanama conducted in the house of P.W.3. Since the learned counsel for the accused contended that it was suicidal fire and not homicidal, therefore, the place of incident was not in dispute. Hence, the evidence of this witness is also not having much significance.
9.9. P.W.10, Shivashankara Aradya, Junior Engineer, P.W.D, went to the house of P.W.3, prepared sketch of the spot as per Ex.P.3. Since the place of incident, i.e. house of P.W.3, was not in dispute, therefore, his evidence also does not have much significance.
9.10. P.W.11, Dr. Chandrashekar T. N., conducted the autopsy on the dead body the deceased. He has given the Post-Mortem report as per Ex.P.5. According to him, he found second and third degree burn injuries in some parts. According to his opinion, the burn injuries are ante-mortem and the deceased died due to septicemia of burn injuries. In his cross-examination, the learned counsel for the accused tried to bring that the burnt was suicidal and not homicidal burnt. But nothing has been elicited from the mouth of this witness that the victim sustained burn injuries due to suicidal fire. On the other hand, this witness confirms that the finger-print will not be visible, when the victim sustained burn injuries.
9.11. P.W.12, Munni Taj, wife of P.W.3 and mother of the victim, has deposed that she married P.W.3 and having two children. Prior to her marriage with P.W.3, she had married some other person and having three children. Out of three children, the victim was the eldest daughter. She has also stated that P.W.3 had married to accused No.1 and having children. There was quarrel between accused No.1 and P.W.3 in respect of the fact that P.W.3 not visiting the house of accused No.1. She further deposed that on 11-2-2012 at 12:30 p.m., she went to mutton stall. While coming back, she saw people gathered in front of her house, at that time, her children Afreen and Sumaiah Banu told that accused Nos.1 to 3 set ablaze on their sister and went away. P.Ws.1 and 2 shifted the deceased to the hospital. She telephoned her husband -
P.W.3 and he in turn informed her to come to the hospital as he was already there in the hospital. Thereafter, she went to the hospital and saw deceased was in emergency ward. On enquiry from her daughter, she revealed that accused Nos.1 to 3 set ablaze on her. This witness also stated that her daughter was in speaking condition and later, died. During cross-examination of this witness, the learned counsel for the accused tried to elicit that her first husband, Abeebulla, was quarreling as she was not at all given Talak. Except some unnecessary cross- examination, nothing has been elicited to disbelieve her evidence.
9.12. P.W.13, Margaret Mari, Women Head Constable, who carried M.Os.1 and 2 to the F.S.L. and the same is not disputed by the learned counsel for the accused in the cross-examination and stated no-cross.
9.13. P.W.14, R. Pruthviraje Urs, Assistant Sub- Inspector of Police, working in the Udayagiri Police Station, who has recorded the dying declaration of the deceased in the presence of the duty Doctor, P.W.17, later he went back to the Police Station and handed over the statement of the victim to P.W.16, Sub-Inspector of Police, and on his direction, he himself registered a case in Crime No.22 of 2012 for the offence punishable under Section 307 read with Section 34 of the I.P.C. He has identified Ex.P.6 is the statement of the deceased and Ex.P.7 is F.I.R. The evidence of this witness will be discussed in detail little later.
9.14. P.W.15, C.P. Doreswamy, Police Constable, has stated that on 11-2-2012, when he was in the Police Station, he accompanied P.W.14 to the hospital and recorded the statement of the deceased as stated by her in the presence of the Doctor. He also identified his signature on Ex.P.6(b). His evidence will also be discussed along with P.W.14.
9.15. P.W.16, V.M. Guruprasad, Police Sub- Inspector, deposes that on 12-2-2012, he took up the investigation from P.W.14 and went to the spot, i.e. house of P.W.3, prepared spot panchanama as per Ex.P.1. He has seized a kerosene can, a match-box and two burnt match-sticks in the presence of panchas. He recorded the statement of P.Ws.1, 2, 4, 6 and statement of P.W.15. On 13-2-2012, the accused were produced before him and at 10:45 a.m., he arrested and sent them to the Court. On 15-2-2012, he handed over the investigation to P.W.17, Circle Inspector of Police, due to the death of the deceased. This witness is partial Investigating Officer.
9.16. P.W.17, Dr. Prakash S.S., is a witness present at the time of recording the statement of the victim. He has certified that the victim was mentally and physically sound to give her statement and he has identified Ex.P.6 is the statement of the victim and his signature.
9.17. P.W.18, K.T. Mathews Thomas, Circle Inspector of Police, investigated the case and filed the charge-sheet.
10. On careful analysing the evidence of prosecution witnesses, the prosecution mainly relies on the multiple dying declaration of the victim made before P.Ws.14 and 15 and oral dying declaration made before P.Ws.1, 2, 4, 5 and 6 that they heard the incident from the deceased.
Admittedly, there is no eyewitness to the incident and none of the witnesses have seen the accused at the time of the incident or subsequent to the incident near the shop.
P.W.3 and P.W.12 are the parents of the deceased. They also gave statement before the Police that they came to know the incident through their deceased daughter, which is oral dying declaration. Criminal prosecution came to be launched on the basis of the information or statement given by the victim as per Ex.P.6. Subsequently, the same has been termed as dying declaration, after the death of the deceased. Therefore, the Court is required to consider, whether the dying declaration of the deceased is trustworthy and reliable to base the conviction. It is well settled principle by the Hon’ble Apex Court in the case of P. MANI v. STATE OF TAMIL NADU reported in 2006(2) CRIMES 9 (SC), held that indisputably conviction can be recorded on the basis of dying declaration alone, but the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence.
11. By keeping the principles laid down by the Hon’ble Supreme Court and looking to the multiple dying declaration of the deceased, one is the statement of the victim under Ex.P.6 before P.W.14, Assistant Sub- Inspector of Police, P.W.15, Police Constable, who scribed the same and P.W.17, the Doctor, who certified the victim for giving statement and oral dying declaration made before P.Ws.1, 2 and 6 and also before her parents, P.Ws.3 and 12.
12. Firstly, let us take the evidence of P.Ws.14, 15 and 17 in respect of Ex.P.6, where P.W.14 deposed that on 11-2-2012, when he was in the Station at about 6:00 p.m., he received intimation from the Devaraja Sub- Police Station that they received a Memo, therefore, he along with P.W.15, Constable, went to the Devaraja Sub-
Police Station, collected the memo and approached P.W.17, the Doctor, to certify the condition of the victim, whether she is able to give statement. After the Doctor certified that she is in a fit condition to give statement, he also requested the Doctor to be present near the victim while recording the statement. Accordingly, the Doctor was also present and before P.W.14, the victim stated that her father had two wives, first wife name is Asma Banu (accused No.1) and second wife is her mother, Munni Taj (P.W.12). Accused No.1 was not happy when her father married P.W.12 and she used to quarrel frequently. Therefore, her father, made a separate house for accused No.1 and her children at Hyderali Block. They are residing at Ghousia Nagar, Sultan Road. She further stated that on 11-2-2012, her mother had gone out to bring groceries and her father went out for job, her sisters and brother went out for playing and she was alone in the house, at that time, accused No.1 and her elder and younger brother came to their house at 12:30 p.m. and abused her in filthy language that her family members spoiled their family and by picking quarrel, they told that she should die. At that time, accused No.1 held her, accused No.2 poured kerosene on her and accused No.3 lit fire and went away. She was screaming, then the neighbours extinguished the fire and later, P.Ws.1 and 2 shifted her in an auto-rickshaw to the K.R. Hospital. She further stated that with an intention to kill her, the accused have committed the offence. Ex.P.6 - the statement of the deceased was scribed by P.W.15, C.P. Doreswamy, Police Constable and P.W.14, R. Pruthviraje Urs, Assistant Sub-Inspector of Police, who recorded the statement and identifies the same as Ex.P.6. He obtained the right thumb impression of the victim as he could not take the left thumb impression of the victim due to burn injuries. Then P.W.14 came to the Police Station and registered a case in Crime No.22 of 2012 for the offence punishable under Section 307 read with Section 34 of the I.P.C. against the accused. In the cross-
examination, this witness again asserts that, he went to the hospital at 6:45 p.m., he has dictated the statement of the victim to the Police Constable P.W.15 and P.W.15 scribed the same. It is disputed that there is some correction made in respect of time which was mentioned as 7:00 p.m. For that, this witness clarifies it was done by Doctor and it was not a correction. Further, he has stated that there are two signatures made by the Doctor. For that, he said he does not know why the Doctor has to affix two signatures. He further says, he has affixed his signature twice, one at the shara, i.e. endorsement and another signature affixed by him at the request of the Doctor, after the statement. He has also explained there is some omission in respect of some Section. Therefore, with the help of whitener, he has written the Section and it was suggested that in the presence of P.W.3, the statement was recorded. The same was denied by him and again this witness stated that the victim was in fit condition to give statement at the time of recording the statement. Except this suggestion, there is nothing brought on evidence by the learned counsel for the accused to disbelieve the evidence of P.W.14.
13. The evidence of P.W.14 also corroborates with the evidence of P.W.15, C.P. Doreswamy, Police Constable, who scribed the statement of the victim. He also clearly spoken that himself and P.W.14 went to the hospital and requested the Doctor and the Doctor examined the victim and certified that the victim was in fit condition to give statement and thereafter, in the presence of the Doctor;
P.W.14 asked the victim about the incident and victim told about the incident and the same was recorded as it is by him. He also identifies his signature as per Ex.P.6(b). In the cross-examination, nothing has been elicited and again this witness clearly stated that the victim was in fit condition to give statement before them.
14. P.W.17, Dr. Prakash S.S., also corroborates the evidence of P.Ws.14 and 15, who has deposed that on 11-2-2012, P.W.14 approached him for certifying the victim girl to record her statement and then he has certified, after examining her that she was in fit state of mind and thereafter, in his presence, the victim gave statement as per Ex.P.6. He also identified his signature as Ex.P.6(c). In the cross-examination, he has stated that there was a separate duty Doctor for burns Ward and Chief Doctor under whom other Doctors are working. However, this witness says no Doctor would be available after 4:00 p.m. and he used to be present as a duty Doctor for 24 hours and he has denied the suggestion that separate Doctor will be present in the emergency (burns) Ward. From evidence of this witness, it is clear that, this Doctor, being a duty Doctor, was present on the date of the recording statement of the deceased and though he was not the treating Doctor at burns Ward, but this Doctor, who examined the victim, only for the purpose of recording the statement and after referring the case-sheet, again he has ascertained that it was mentioned in the case-sheet, it is stated that the first wife of her father and her younger brother burnt her. He has further stated in the cross-examination that breathing condition of the victim was good and it was suggested and questioned this witness as to why second page of Ex.P.6 was not used for writing even though it was blank and tried to complete the statement in the first page itself. For that, this witness clarifies that, since they used the carbon copy, the carbon impression may overlap on the writing, therefore, they tried to complete the statement of the victim and their signatures on the first page itself.
15. On perusal of Ex.P.6, which shows the writing from the top by mentioning the name, age and address with phone number of the deceased and at the end of the statement, right side edge, thumb impression of the victim is obtained and endorsement is also made that right thumb impression was obtained since left thumb was burnt. In the left side, Doctor certified that “the patient is conscious, co-operative, oriented. Patient is fit while taking statement before him” and he has signed the same. Again in the margin, it was endorsed by C.P. Doreswamy, Constable, stating that he has written the same and his signature is found. P.W.14 has also signed the statement. Another signature is in respect of endorsement made by P.W.14 only for the purpose of registering the case and mentioned as Crime No.22 of 2012 under Section 307 read with Section 34 of the I.P.C. where he has wiped with whitener and mentioned or added the words read with Section 34 of the I.P.C. But in the body of the statement, absolutely, there is no correction or manipulation or alteration found by this Court. The correction i.e. carried out with whitener in respect of the provisions of the Section which was done in the Police Station while registering the case and hence, from the evidence of P.Ws.14, 15 and 17, it is clear that the victim was fit in state of mind to give statement. Apart from that, the carbon copy of the statement i.e., Ex.P.6 was also taken and kept in the case-sheet, which is available under Ex.P.10. Therefore, the evidence of P.Ws.14, 15 and 17 go to show that they tried to complete the statement on the first page itself without going to second page. There is no reason for suspecting Ex.P.6 and also there is no reason for disbelieving the evidence of P.Ws.14, 15 and 17 in respect of recording the statement made by the victim in their presence. Even Ex.P.10 - case-sheet also reveals that the Police gave requisition to the duty Doctor requesting to certify the fitness of the victim and also requested to be present while recording the statement.
P.W.17 received the requisition and he has endorsed that the patient was conscious, co-operative and oriented and also stated the patient is in fit condition to give statement and after recording the statement, he has signed on Ex.P.6. It is also undisputed fact that the victim survived in the hospital for four days and died only on 15-2-2012 at 8:10 p.m. That means the victim was admitted to the hospital on the afternoon of 11-2-2012 and she survived for more than four days. It is also mentioned in the case- sheet, the burn injuries were not 100%, but it was up to 70-75% i.e. II and III grade burn injuries. Previously, it was shown as 45-50% and it was corrected as 70-75% under case-sheet which is also marked by the defence under Ex.D.2, which is not useful to the defence, as the victim died due to septicemia developed due to burn injuries, after four days of the incident and it is not the case that she was in comma or unconscious stage at the time of treatment.
16. One of the contentions of the learned counsel for the accused that there is discrepancy in the statement of the victim in respect of implicating names of the accused persons in her statement under Ex.P.6 and there was ambiguity in the statement made by her, while she was brought to the hospital that she has not mentioned the names of all the accused persons, but she has stated that her father’s first wife and her brothers poured kerosene and lit fire on her. Another contention of the learned counsel is that as per the evidence of P.W.5, Pathu @ Khizer, the victim was telling while extinguishing the fire, accused Nos.2 and 3 have burnt her. P.W.5 also identified accused Nos.2 and 3 before the Court. As per the evidence of P.W.5, the name of accused No.1 was not at all mentioned and as per evidence of P.W.6, Mohammed Waseem, Driver of the auto, while shifting the victim to the hospital, the victim was telling accused Nos.1 and 2 burnt her. Therefore, he contended that there is lot of discrepancy and indefinite information in Ex.P.6-dying declaration made by the victim. Therefore, he prayed for discarding the dying declaration. Of course, on perusal of the evidence of P.W.5, who has deposed that he came near the spot at the time of people extinguishing the fire, by wrapping with tarpaulin and the victim has stated accused Nos.2 and 3 burnt her. He also identifies them as accused Nos.2 and 3. This witness neither accompanied the victim to the hospital nor came to extinguish the fire, but he heard only the names of accused Nos.2 and 3 and may not have heard properly all the names of the accused. Even otherwise, as per statement of the victim, accused No.2 poured kerosene and accused No.3 lit fire, but accused No.1 was holding the victim. Apart from that, P.W.6, Driver of the auto, while shifting the victim to the hospital would have heard only the names of accused Nos.1 and 2 and he may not have fully heard the names of all the accused and he never questioned the victim, how she caught fire. He has heard the same, when victim was telling the same to P.Ws.1 and 2, while shifting the victim to the hospital. Even on perusal of Ex.P.10, case-sheet, it was also mentioned that while the patient was brought to the hospital, she said to have informed that her father’s wife and brothers have poured kerosene and lit fire. There is little discrepancy in respect of the evidence of P.Ws.5 and 6 because they heard from the victim at the time of shifting her to the hospital and while admitting to the hospital, she could have narrated the relationship without naming the accused. But that little discrepancy cannot be a ground to disbelieve the dying declaration of the deceased. On the other hand, the evidence of P.Ws1. and 2, who are independent witnesses, both of them extinguished the fire and they shifted the victim to the hospital, they have categorically stated that accused Nos.1 to 3 came to house and burnt the deceased. Therefore, even if the statement of the victim, when she was heard by the Doctor while admitting not naming the accused, and as per the evidence of P.Ws.5 and 6 not naming all the three accused persons, but the evidence of P.Ws.5 and 6 go to show that it was accused No.1 and her brothers burnt her. Even her dying declaration corroborates with the evidence of P.Ws.1 and 2 before whom oral dying declaration was made at the earliest point of time. Even discarding the evidence of her parents, P.Ws.3 and 12, who also heard from the victim and the victim made oral dying declaration before them by naming the accused persons, there was no enmity between the deceased and the accused persons and there is no reason for the victim to implicate accused Nos.1 to 3 by leaving the real culprit, who has committed the offence. The learned counsel for the appellants relied upon the judgment of the Hon’ble Supreme Court in the case of MOTI SINGH AND ANOTHER v. THE STATE OF U.P. reported in AIR 1964 SC 900 in respect of indefinite dying declaration, wherein in the said case, the deceased has received gunshot injuries and gave statement by giving name of some of the accused persons and discharged from the hospital and after 20 days, he died in the house and later, the case was converted into 302 of the I.P.C., on that context, the Supreme Court disbelieved the dying declaration and also held that under Section 32(1) of the Evidence Act makes a statement of a person, who was died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, therefore, the Hon’ble Apex Court discarded the dying declaration. But here in this case, the victim was admitted to the hospital on the afternoon of 11-2-2012, she survived for four days and while taking treatment, she died in the hospital on 15-2-2012. As per the evidence of P.W.11, Dr. Chandrashekar T. N., who did Post-Mortem examination and issued a report as per Ex.P.5 clearly stated the death was due to septicemia as a result of infection consequent to the burn injuries. Ex.P.10, case- sheet, also clearly reveals the continuous treatment given to the victim and she died in the hospital due to the burn injuries. Therefore, the statement of the victim is admissible under Section 32(1) of the Evidence Act as in the case stated supra.
17. Even otherwise, if we consider the statement of the victim, the dying declaration, which requires corroboration of other witnesses, then the evidence of P.Ws.1 and 2, P.W.6-auto Driver and the evidence of P.Ws.3 and 12, parents of the deceased, before whom the deceased made oral dying declaration and the evidence of P.Ws.14, 15 and 17 before whom the dying declaration made by the deceased corroborates with each other. All the multiple oral dying declaration of the victim made before P.Ws.1, 2 and 6 and later before her parents P.Ws.3 and 12 and dying declaration made before P.Ws.14, 15 and 17 are all consistent with each other and this Court do not find any discrepancies in the multiple dying declaration. Therefore, the arguments addressed by the learned counsel for the appellants cannot be acceptable. On the other hand, the dying declaration of the victim - Ex.P.6 is consistent, credit trustworthy and acceptable one. Thereby, the prosecution successfully established that accused Nos.1 to 3 have committed the offence by pouring kerosene and litting fire with an intention to kill the deceased. There is nothing to disbelieve Ex.P.6 and the evidence of P.Ws.1, 2, 6, 12, 14, 15 and 17 to hold that accused Nos.1 to 3 are the perpetrators of the crime and they have committed the offence. Therefore, we hold the appeal is devoid of merit and liable to be dismissed. Accordingly, the appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE kvk