Next > IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MRS. JUSTICE RATHNAKALA AND THE HON’BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL APPEAL NO.550/2012 (C) BETWEEN:
Chikkamadaiah S/o Late Kariyaiah Aged about 32 years R/a Lalithadripura Village Mysore Taluk, Mysore …Appellant (By Sri I.S.Pramod Chandra, Advocate) AND:
State of Karnataka Through Mysore rural Police, Mysore, Represented by:
State Public Prosecutor High Court Building Bangalore …Respondent (By Smt.Namitha Mahesh.B.G., HCGP) This Crl.A. is filed Under Section 374(2) of Cr.P.C by the Advocate for the Appellant/Accused No.1 praying that this Hon’ble Court may be pleased to set aside the Judgment dated 24.12.2010 / 03.01.2011 passed by the IV Addl. Dist. & S.J. Mysore, in S.C.No.122/2009-convicting the Appellant/Accused for the offence P/U/S 302 of IPC. The Appellant/Accused is sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/- (Rupees Ten Thousand Only) in default of payment of fine he shall undergo S.I. for six months for the offence P/U/S 302 of IPC.
This appeal having been heard and reserved on 16.09.2017 for judgment, coming on for pronouncement this day, K.S.Mudagal J., delivered the following:
JUDGMENT Aggrieved by the order of conviction and sentence passed by the IV Addl. District & Sessions Judge, Mysore on 24.12.2010 in S.C. No.122/2009, against accused No.1 for the offence punishable under S.302 IPC he has preferred this appeal.
2. By the impugned Judgment, the Trial Court has acquitted accused Nos.1 to 3 of the charges for the offences punishable under Ss.498-A, 114 read with S.34 of IPC and convicted accused No.1 / appellant for the offence under S.302 IPC and sentenced him to imprisonment for life and fine of Rs.10,000/-.
3. Mysore Rural Police charge-sheeted the appellant and his two brothers in Crime No.10/2009 of their Police Station for the offences punishable under Ss.498-A, 302, 114 read with S.34 of IPC, on the basis of the complaint/statement of Sakamma the wife of the appellant. Jurisdictional Magistrate took cognizance of the offences in C.C.No.74/2009 and committed the matter to the Sessions Court.
4. The case of the prosecution in brief is as follows:
Marriage of the appellant / accused No.1 with Sakamma was solemnized on 08.05.2006. The couple lived in the house of Ramamma the mother of accused No.1. Since six months prior to the incident, accused No.1 used to come home drunk and harass Sakamma for the sake of money. On 14.01.2009 at 9.00 a.m., accused No.1 usurped the gold ear-studs of Sakamma and disposed them. He returned home drunk at 10.00 p.m. Sakamma demanded her jewels or proceeds of the same, Accused No.1 quarreled with her and assaulted her. On the same mid-night at 12.00 hours, when Sakamma was asleep, accused No.1 poured kerosene on her and set her ablaze. Accused Nos.2 and 3 were also present at that time and they abetted accused No.1 to set Sakamma on fire. In the process of Sakamma protesting such violence, accused No.1 also sustained burn injuries on his hands. Sakamma suffered burn injuries. Accused Nos.2 and 3 and neighbours shifted her to K.R. Hospital Mysuru. On MLC intimation, PW-18, PSI of Mysuru South Police Station, visited the said hospital and recorded Ex.P.10 the statement of victim Sakamma and registered case against the 1st accused in Crime No.10/2009. Sakamma succumbed to injuries on 19.01.2009. In the intervening period, PW-14 - Tahsildar of Mysuru Taluk, recorded Ex.P14 the dying declaration of Sakamma on 15.01.2009 between 10.15 and 10.45 a.m.
5. The Investigating Officer filed charge-sheet against accused Nos.1 to 3 for the offences punishable under Ss.498-A, 302, 114 read with S.34 of IPC. Learned Magistrate on taking cognizance, committed the case to the Sessions Court. Sessions Court, tried accused Nos.1 to 3 and convicted accused No.1 alone as aforesaid.
6. Sri I.S. Pramod Chandra, learned counsel for the appellant, seeks to assail the impugned Judgment and Order of conviction and sentence on the following grounds:
(i) The Trial Court has convicted the accused based on the dying declaration of the injured Sakamma which is not a substantial piece of evidence.
(ii) The deceased had suffered 85 to 90 percent burn injuries. The Trial Court ought to have seen that in such condition, the victim will not be in a position to give statement.
(iii) Ex.P14 the dying declaration does not contain the certification of the Medical Officer to the effect that the victim was in a fit condition to give such statement. There is no explanation for not taking such certification of the doctor.
(iv) PWs 1 to 4 the alleged eye witnesses have not supported the prosecution theory of accused being the culprit.
(v) It was a case of attempt to commit suicide. The fact of accused No.1 suffering burns on his hands shows that he attempted to put off the fire and rescue Sakamma.
(vi) The conviction and sentence is based on unsustainable evidence.
7. In support of his contentions, he relied upon the following Judgments:
(i) RAM SWARROP Vs. STATE OF RAJASTHAN: 2004 CRL. LAW JOURNAL 5043;
(ii) NALLAPATI SIVAIAH Vs. SUB DIVISIONAL OFFICER, GUNTUR, ANDHRA PRADESH:
2007 AIR SCW 6021;
(iii) KANTI LAL Vs. STATE OF RAJASTHAN: (2010) 1 SCC 593;
(iv) GOPAL Vs. STATE OF MADHYA PRADESH: (2010) 1 SCC 659.
8. Smt.Namitha Mahesh B.G., learned HCGP, seeks to justify the Judgment on the following grounds:
(a) The offence has occurred in the house of the accused during mid-night where he ordinarily resided with the victim. The very fact of the accused suffering burns on his hands shows his presence at the scene of occurrence.
(b) The accused did not shift the injured to the hospital and he has no explanation for the same.
(c) Accused was absconding after the incident.
(d) Victim has died after four days of recording of her statement and there is no reason to disbelieve the evidence of PW-14 and PW-18 as they are independent witnesses.
9. Having regard to the rival contentions, the point that arises for consideration is, whether the impugned order of conviction and sentence is sustainable?
10. Some of the undisputed facts of this case are as follows:
Appellant – accused No.1 was married to the victim Sakamma in 2006 and they were living together in the house of mother of the appellant. The victim suffered burn injuries in the said house on 14.01.2009 at 12.00 hours in the midnight in the very house and the appellant was also present in the house. Sakamma was admitted to K.R. Hospital at Mysuru on 15.01.2009 and she died due to the burn injuries on 19.01.2009.
11. The case is based on:
i) The evidence of eye witnesses PW-1 to 3;
ii) The dying declaration said to be made in the form of first information by the deceased before PW-18-the P.S.I. of Mysore Rural police station;
iii) Ex.P14, the dying declaration said to be made before PW-14-the Taluka Executive Magistrate;
iv) The dying declaration said to be made before PW-4 – the brother of the deceased, PWs-7 and 8, the parents of the deceased;
v) The evidence of the Medical Officers-PW-15 who was allegedly present while recording the dying declaration Ex.P14 and P.W-11 who conducted the autopsy on the dead body of the deceased, vi) PW-12- who conducted the inquest on the dead body of the victim Sakamma;
vii) Police witnesses (including the I.O.).
12. The appellant and his brothers (accuses Nos.1- 3) were charge-sheeted and tried for the offences punishable under Sections 498A, 302, 114 r/w Section 34 of IPC. The Trial Court acquitted accused Nos.2 and 3 of all charges and convicted the appellant only for the charge for the offence punishable u/s 302 of IPC and acquitted him of the rest of the charges. The State has not preferred any appeal against such acquittal of accused Nos.1 to 3. Therefore, that order has attained finality.
13. PWs.-1 to 3, the alleged eye-witnesses did not support the prosecution case and they turned hostile. The trial Court convicts the appellant on the following grounds:-
i. The dying declarations made before the Taluka Executive Magistrate and the P.S.I.-P.W.-18 are proved.
ii. PWs-1 to 3 are the relatives of the accused.
Therefore, they have turned hostile.
iii. As per the judgments in Koli Chunilal Savaji and another Vs. State of Gujarath, 2000 SCC Crl.432 and Honnuri Vs. State of Karnataka by SPP, Bangalore, ILR 2004 KAR 3252, the dying declaration is an independent piece of evidence and can be acted upon without any corroboration.
iv. The evidence of PWs-4, 7 and 8 shows that the deceased revealed before them the overt act of the appellant and their evidence is acceptable.
14. In HONNURI’s case and KOLI CHUNILAL SAVAJI’s case referred to supra, it is held that, the dying declaration is substantive piece of evidence provided, if the same is found truthful, voluntary and reliable and the allegations of tutoring etc., are found baseless. In those judgments, it is not held that in a straight jacket formula that all the dying declarations shall be accepted as independent piece of evidence. Therefore, it can be said that the trial Court has misread the above said judgments.
15. Having regard to the aforesaid judgments, this Court has to find out whether the trial Court was right in holding that the dying declarations Ex.P14 before PW-15 and EX.P10 before PW-18 are proved. It is the contention of the accused that having regard to the injuries suffered by her, Sakamma was not in a position to give statement and the said statements are concocted at the behest of PWs.-4, 7 and 8.
16. In the light of such contention, this Court has to find out whether the victim is in a sound state of mind to give statement is proved. PW-18 claims that he visited the hospital and recorded the statement of the victim on 15/01/2009 between 9.15am and 9.45am. He says that after recording such statement, he returned to the police station, registered the FIR-Ex.P17 and then sent requisition to PW-18 for recording the statement of Sakamma.
17. PW-15 claims that on receiving such requisition, he visited the hospital and recorded the statement of Sakamma on the same day between 10.15am and 10.45am. Whereas, column No.3 of FIR shows that the FIR itself is registered at 10.00am. PW-18 says that on registering the FIR, he sent the same to the Court and then issued requisition to the Tahasildar to record the statement.
18. It becomes hard to believe that within 15 minutes of registration of the FIR, PW-14 receives the requisition, reaches the hospital, verifies with the doctor about the fitness of the injured to give statement, enquires her and commences recording her statement. PW-14 does not produce the requisition received from PW-18, requisition given by him to the medical officer PW-15 for recording the statement. When the FIR itself is registered on 15/1/2009 at 10.00am, PW-14 in his cross examination says that he received the police requisition during night time and directly went to the hospital and recorded the statement.
19. As per the entries in Ex.P14, he has recorded the statement between 10.15am and 10.45am. It cannot be even said that the statement is recorded between 10.15pm and 10.45 pm because PW-15 the doctor in whose presence the statement is allegedly recorded states that he was on duty in the hospital on that day between 9.00am and 4.00pm. If the version of PW-14 that he received the requisition during night time, then it has to be held that he had received the requisition even before the registration of the FIR. This is a major contradiction in the evidence of PW-18 and PW-15, Ex.P10 and 14. There is no explanation for the prosecution for not producing the said requisition.
20. PW-18 says that the left thumb finger of Sakamma was completely burnt, therefore, he took the impression of her left toe on Ex.P10. As against that, PW-
14 in his cross-examination states that Sakamma has affixed her thumb mark on Ex.P14. The thumb mark on Ex.P14 is attested as left thumb mark of Sakamma. PW-11- the doctor who conducted the autopsy of the dead body, in his report Ex.P12 states that sparing the soles, scalp, face, leg, front of chest, back of chest, both upper limbs, both lower limbs, feet, abdomen, including external genital hair were burnt and singed. PW-11 states that the victim had suffered 85%-90% burns. Even the inquest report Ex.P9 says that the victim had suffered burn injuries from head to toes. This contradiction in the evidence of PW-18 and PW-
14 creates doubt about PW-14 visiting the hospital and recording the statement Ex.P-14.
21. PW-14 says that the contents of Ex.P14 are not in his hand-writing and his case worker has scribed the same. He is unable to name that scribe. Ex.P14 does not depict that it is scribed by somebody else and the name of such scribe. PW-15, in his evidence states that he does not know Ex.P14 is in whose handwriting. He states that his declaration/certification in Ex.P14 is not in his hand writing. He states that except his signature, name and address below the same, the rest of contents of Ex.P14 are not written by him. PW-15 also does not produce any document to show that the visit of PW-14 to the hospital and the recording of statement Ex.P14 is recorded in any of the hospital records.
22. So far as the fitness of Sakamma to give statement, PW-15 and PW-11 both have deposed that she had suffered 85%-90% burns all over the body sparing the soles. PW-15 states that her mouth was burnt. PW-15 in his cross-examination admits that, with 80%-90% burns there will be dehydration in the body and trouble in neuro system. He admits that with such burns, there will be pain to the patient and the condition of the patient keeps changing. He admits that in case of burns, the injured inhales carbon monoxide and due to such inhalation there are chances of physical and mental problem.
23. PW-11 the doctor who conducted the autopsy also states the same thing. PW-11 further states that for such burn injuries, sedative drugs are administered and the said drugs make the patient drowsy. He further states that if the pain is more, the patients are injected sedative drugs. The records show that the burns became septicemic and ultimately caused her death. Under such circumstances, suppression of the case-sheet of the victim without any explanation creates doubt about her fit state to give statement.
24. Similarly, except the self serving testimony of PW-18 which is challenged by the accused, no other material is produced to show that PW-18 visited the hospital and recorded the statement Ex.P10 in the presence of the doctor. Ex.P10 is not attested by any doctor, leave alone carrying any certification of the doctor.
25. To crown all this, PW-8 the father of the deceased in his cross-examination states as follows:-
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