IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI CRIMINAL APPEAL No.771 OF 2014 BETWEEN:
BYREDDY @ BYRAREDDY SON OF NAREPPA AGED ABOUT 35 YEARS RESIDING AT NALAPALLI CHINTAMANI PIN:576 126 ….APPELLANT (BY SRI. A H BHAGWAN, ADVOCATE) AND:
STATE OF KARNATAKA BY CHINTAMANI TOWN POLICE STATION CHINTAMANI, REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001. …RESPONDENT (BY SRI. VIJAYKUMAR S. MAJAGE, ADDITIONAL SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 2/5.9.14 PASSED BY THE ADHOC DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT-II, CHINTAMANI IN S.C. No. 176 OF 2013 CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) AND 302 OF IPC ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the judgment of conviction dated 02.09.2014 and the order of sentence dated 05.09.2014 passed in S.C.No.176 of 2013 by the Adhoc District and Sessions Judge, Fast Track Court-II at Chintamani, the accused has filed this appeal.
2. Brief facts of the case are as follows:
That the accused married Kalyani about eight years prior to the incident. They have a son aged about six years. The allegations are that the accused was not looking after his wife properly ever since the date of marriage. He was an alcoholic. He was spending all the money on buying alcohol. He was not looking after the welfare of his wife and his son. The same was being constantly complained by the deceased to her parents. On 21.08.2013 at about 9.00 p.m. when the accused returned home after consuming alchohol, the deceased questioned him as to how she is expected to lead a life when he is not giving money for running the family. Being enraged, the accused abused her in filthy language. Further, the accused brought kerosene from the bathroom and stating that she can question him only if she is alive and so, he will murder her. Saying so, he dragged PW1 Kumari Sushmitha- cousin sister of the deceased and his son-Pruthivi and sent them out of the house from the room. Again, he went into the room, poured kerosene on the deceased and lit her on fire. Immediately, the deceased was taken to the Hospital at Chintamani and from thereon to Victoria Hospital, Bengaluru. After receipt of the Medico legal case by Victoria Hospital, the police were sent to record the statement of the deceased and her statement was recorded on 22.08.2013. The deceased succumbed to the injuries on 23.8.2013. In the interregnum, her dying declaration was recorded in terms of Ex.P9.
On the basis of statement given by the deceased on 22.8.2013, a case was registered in Crime No.193 of 2013 against the accused for the offences punishable under Section 498(A) and 307 of IPC. After the death of deceased, Section 307 of IPC was substituted by Section 302 of IPC.
Investigation was taken up. Charge sheet was filed. The accused pleaded not guilty and claimed to be tried.
In order to prove its case, the prosecution examined 14 witnesses, marked 14 exhibits among three material objects. The trial Court by the impugned order convicted the accused and sentenced him vide order dated 05.09.2014 as follows :
ORDER “The accused is sentenced to undergo simple imprisonment for 3 years and sentenced to pay fine of Rs.1,000/- for the offence punishable U/S. 498(A) of IPC.
And the accused is sentenced to undergo imprisonment for life and sentenced to pay fine of Rs.10,000/- for the offence punishable under Section 302 of IPC. In all the accused is sentenced to pay fine of Rs.11,000/-. In default of payment of fine the accused is sentenced to undergo Simple Imprisonment for 6 months.
The sentence of imprisonment shall run concurrently.”
Aggrieved by the aforesaid order, the accused has filed this appeal.
3. Sri. A.H.Bhagwan, learned counsel for the accused/appellant contends that the trial Court committed an error in misreading the evidence on record. That, PWs- 1 to 8 have turned hostile. The entire case of the prosecution appears to rest on the evidence of PW-13 Investigation officer. Allegations in the dying declaration are erroneous. The Trial Court by relying on unrelated judgments of the Supreme Court has wrongly convicted the accused, in the absence of any evidence. The order of the trial court, therefore, becomes unsustainable.
4. The same is disputed by Sri Vijaykumar S. Majage, learned Additional State Public Prosecutor. He contends that there is no error committed by the trial Court that calls for any interference. That the dying declaration of the deceased has been recorded in terms of Ex.P9 and there is nothing to disbelieve the dying declaration. If the contents of the dying declaration are considered, the same will establish the case of the prosecution. Only because some of the witnesses have turned hostile, it cannot be a ground to acquit the appellant. Hence, he pleads that the appeal be dismissed.
5. PWs- 1 to 8 have turned hostile. PW1 is the cousin sister of the deceased who was in the house, when the incident took place. PW-2 is the mother, PW-3 is the paternal uncle, PW-4 is the panch witness to Ex.P4, the inquest. PW-5 is panch witness to Ex.P5- spot mahazar, PW-6 is the elder sister. PW-7 is the person who has seen the body of the deceased in the mortuary. PW-8 is the additional panch to Ex.P5 spot mahazar. All of them have turned hostile. In fact, PW-2 as well as PW-6 have stated that the deceased poured kerosene and lit herself on fire. Therefore, the evidence of PWs-2 and 6 runs contrary to the contents of dying declaration. PWs- 5 to 14 are the official witnesses. PW-12 is the Investigating Officer and PW-13 is the Head Constable who recorded the dying declaration in the Victoria Hospital, Bengaluru. He has supported the case of the prosecution. He has stated that at the time, the dying declaration was recorded in terms of Ex.P9, PWs-2 and 6 were not present at the scene of occurrence. The sister of PW-6 and the father of the deceased have not been examined.
6. We have considered Ex.P9- the dying declaration in depth. The same would indicate that there is an endorsement stating therein that the deceased was aged 30 years and is conscious oriented and fit to give a statement. It is recorded at 12.30 p.m. on 22.8.2013. However, the prosecution has failed to bring home the fact regarding the author of this endorsement. The person who wrote this endorsement would be the ideal person to speak about the health of the deceased. Even though the endorsement exists, it is not corroborated. The prosecution was duty bound to examine the person who has made this endorsement. They have failed to do so. The case of the prosecution is weak to this extent.
7. So far as the contents of the dying declaration is concerned, the same is clear by reading it. However, what is relevant is, whether it was recorded when the deceased was in a fit state of mind to record the statement? This fit statement of mind has to be stated by a proper witness. The person who recorded the dying declaration is PW-13, the head constable. We do not find it safe to rely on the evidence of PW-13 in order to convict the accused. There has to be some amount of corroboration with regard to the evidence of PW-13. Even though, we are aware of the sensitivity in considering the dying declaration, the same cannot be accepted merely because it exists. If the contention of the learned Additional State Public Prosecutor is to be accepted, then the conviction would lie purely and simply based on the evidence of PW-13 alone. Even the person who has made the endorsement with regard to the fit state of mind has not been examined. No Medical Officer or Doctor has been examined by the prosecution. Neither the doctor who treated the deceased nor the doctor who conducted the post mortem report have been examined. However, the learned Additional State Public Prosecutor submits that the post mortem report in terms of Ex.P12 has been marked without consent and therefore, it is not necessary to examine the doctor. We cannot accept the said submission. If a document is marked without objection, the document would necessarily form part of the record but evidence would have to be led, in order to prove it. There is no doctor in order to examine the post mortem report.
8. Therefore, we find serious flaws in the case of the prosecution in not examining any medical officer with regard to the health or otherwise of the deceased. In our considered view, the trial court was at a tangent in appreciating the evidence and convicting the accused. Merely because the dying declaration exists, it does not mean that the prosecution has proved its case beyond reasonable doubt. In the absence of a reasonable amount of corroboration, such a dying declaration cannot be accepted. The conviction cannot lie purely on the evidence of PW-
13 namely, the person who recorded the statement. This is more so, in view of the fact that the sister of the deceased, who is said to have been present at the time dying declaration recorded, has not supported the case of the prosecution. The case of the prosecution that the father was also present cannot be accepted since he also has been given up and has not been examined as a witness for the prosecution.
9. Hence, for all these reasons, we are of the view that the judgment and order of conviction is perverse and interference is called for. The appreciation of evidence by the trial Court is inappropriate. The conviction cannot be based on conclusions and surmises. It should be based on the evidence and proved beyond reasonable doubt. We find that these elements are missing in this case.
10. For all the aforesaid reasons, the appeal is allowed. The judgment of conviction dated 02.09.2014 and the order of sentence dated 05.09.2014 passed in S.C.No.176 of 2013 by the Adhoc District and Sessions Judge, Fast Track Court-II at Chintamani for the offences punishable under Sections 498(A) and 302 of Indian Penal Code, is set aside.
The appellant-accused, namely, Sri Byreddy @ Byrareddy, son of Nareppa, is acquitted of the charges leveled against him. He shall be released from custody, forthwith, if not required in any other case/s.
Registry to communicate the operative portion of this order to the Parappana Agrahara Jail authorities, forthwith.
Sd/- JUDGE Sd/- JUDGE rs