IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE B.A.PATIL AND THE HON’BLE MR. JUSTICE R.DEVDAS CRIMINAL APPEAL NO.58 OF 2015 BETWEEN LAKSHMANA @ LACCHA S/O SANJEEVAPPA AGED ABOUT 42 YEARS HINDU KURUBA COMMUNITY R/O VEDALAVENI GRAMA GOWRIBIDANURU TALUK (By SRI ARUNA SHYAM.M, ADV.) AND THE STATE OF KARNATAKA THROUGH GOWRIBIDANURU RURAL POLICE STATION CHIKKABALLAPURA REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE 560 001 ... APPELLANT ... RESPONDENT (By SRI VIJAY KUMAR MAJAGE, ADDL.SPP ) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 18.6.2014 PASSED BY THE ADDL. DIST. AND S.J., CHIKKABALLAPURA IN S.C.NO.82/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 498A AND 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
J U D G M E N T The present appeal has been preferred by the accused/appellant assailing the judgment of conviction and order of sentence passed by the Additional District and Sessions Judge, Chikkaballapura in S.C.No.82/2013 dated: 18.06.2014, whereunder the accused was convicted for the offences punishable under Section 498A and 302 of Indian Penal Code (hereinafter in short called IPC)and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of 3 months for the offence punishable under Section 498A of IPC and has to further undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for six months for the offence punishable under Section 302 of IPC. Assailing the same, the accused/appellant is before this Court.
2. We have heard the learned Counsel Sri Aruna Shyam.M, for the appellant and Additional State Public Prosecutor Sri Vijaykumar Majage.
3. The gist of the complaint registered on the basis of the statement given by the deceased are that she is resident of Vedalaveni Village, Gowribidanur Taluk and about 10 years back she got married with the accused and they have begotten a female child. It is further alleged that her husband by consuming alcohol used to make galata, she tolerated under the impression that it might cool and subsequently her life may get settled. She also used to inform the said fact to her parents and they also advised the accused. It is further stated in the complaint that on 10.07.2012 at about 7.00 p.m., the accused demanded an amount of Rs.500/- out of Rs.5,000/- received from Stree Shakthi Sanga and when the deceased told that since morning he has been consuming alcohol and it is more than sufficient. Being enraged by the said words, immediately he took out kerosene and by pouring the same, he set her ablaze with an intention to kill her and as a result of the same, she sustained the burn injuries to both hands, legs, chest, near the neck and back and she made hue and cry. Listening to her screams, the neighbours by name Alumelamma and Gangamma came and extinguished the fire and by calling 108 Ambulance they sent the deceased to the Gowribidanur Government Hospital and an intimation was given to the police and police recorded the statement as per Ex.P11 and on the basis of the same, a case was registered in Crime No.132/2012. Thereafter, investigation was conducted and charge sheet has been filed against the accused.
4. In order to prove the case of the prosecution, the prosecution examined 15 witnesses and got marked 17 documents and also MOs 1 and 2. Thereafter, after closure of the prosecution evidence, statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied the said questions and he has not led in any evidence. After hearing the learned counsel for the parties, the Court below having come to the conclusion that the prosecution has proved the guilt of the accused, convicted the accused. Assailing the same, the accused is before this Court.
5. It is the submission of the learned counsel for the accused/appellant that the material witnesses examined before the court below have not supported the case of the prosecution. Under such circumstances, the court below ought not to have relied upon the evidence of PW9 and PW11 and also ought not to have relied upon Ex.P11 and P8-the dying declaration said to have been given by the deceased. He further submitted that Ex.P8-the dying declaration said to have been given by the deceased is having inherent defects and improbabilities, which could not persuade the Court to consider the same as dying declaration and even the truthful and genuineness of the witnesses has not been proved by the prosecution. He further submitted that Ex.P11 has been recorded by PW11, which is in detail and in the form of narration. Under such circumstances, it cannot be considered as dying declaration. He further submitted by referring to Ex.P8 that the Doctor who has certified has only stated that the deceased was in a fit condition, but she has not specifically stated that she was in a fit state of mind so as to give the said dying declaration. He further by referring to the evidence of PW9 submitted that the said evidence clearly goes to show that the deceased was not in a fit state of mind to give the statement and the said dying declaration has been recorded on the basis of the gestures made by the deceased. There are various suspicious circumstances which creates doubt in the case of the prosecution. He further referring to the evidence of PW13 clearly mentioned that the Tahsildar and the police have come together and thereafter the statement has been recorded. Under such circumstances, it creates a doubt that the deceased was not in fit state of mind to give the statement as per Ex.P8. The Court below without considering the said facts has wrongly come to the wrong conclusion and has wrongly convicted the accused/appellant. The accused/appellant has not committed any offence as alleged. He further submits that by relying upon information given to the police, if really the accused/appellant has poured kerosene and lit fire and in the intimation, in history there has been only burn injuries, without mentioning as to who poured kerosene and lit fire. All these circumstances creates doubt in the case of the prosecution. The court below ought to have given benefit of doubt to the accused and ought not to have convicted the accused/appellant. On these grounds he prays to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
6. Per contra, learned Additional State Public Prosecutor vehemently argues and submits that the alleged incident has taken place on 10.07.2012 at about 7.00 p.m. and Ex.P11 came to be recorded in between 8.00 to 9.00 p..m. and immediately after the incident, the said statement of the deceased has been recorded and there is a corroboration that the dying declaration has been recorded by the PW9 as per Ex.P8. He also further submitted that though the material witnesses have turned hostile, even the court, on the basis of the sole dying declaration given by the deceased, can convict the accused/appellant. The Court below by taking into consideration the evidence of PW9, PW11, PW12 and PW13 and also Ex.P8 and P11 has rightly come to the conclusion that it is the accused who poured the kerosene and lit the fire and he has ill treated and harassed the deceased and has rightly convicted the accused for the offence punishable under Section 498A. He further submitted that the Doctor has certified on Ex.P8 to the effect that patient was fit to give the statement. That itself clearly goes to show that the deceased was in a fit state of mind to give a statement and same can be relied upon and the appeal may be dismissed as devoid of merits.
7. We have carefully and cautiously heard the submissions made by both the parties and we have also gone through the evidence and the materials placed before the court below.
8. The prosecution in order to prove its case has got examined 15 witnesses. PW1 is the daughter of the accused and she is the eye witness to the alleged incident. PW2 had seen the incident about the demand for money and forced by the accused and he was also the witness to the spot mahazar Ex.P2 and Ex.P3 and P4 is the witness with regard to the galata, demand of money and pouring of kerosene by the accused. PW5 is the neighbour who heard the galata and came to the spot and extinguished the fire and sent the injured to the hospital. PW6 has also reiterated the evidence of PW5. PW7 and PW8 are witnesses to spot mahazar Ex.P2, whereunder the kerosene can and other materials have been recovered from the spot. All these witnesses have not supported the case of the prosecution. Even in the cross-examination by the learned prosecutor nothing has been elicited so as to accept the evidence of these witnesses. PW9 is the Thasildar, who recorded the dying declaration of the deceased. In his evidence he has deposed that as per the requisition he went to government hospital and Smt. Ningamma was admitted as inpatient and he has recorded the dying declaration. He has further deposed that the said Ningamma has deposed before him stating that she has received Rs.5,000/- from Stree Shakthi Sanga and her husband forced her to give Rs.500/- and he was consuming alcohol since morning and she asked why he want money and at that time her husband by pouring the kerosene, lit fire and thereafter one Alumelamma and Gangamma had brought her to the hospital and got her admitted. He has further deposed that, at that time Dr. D.Jagadeshwari, who was present said that Smt.Ningamma was in a talking position. During the course of cross-examination he has deposed that when he recorded the statement, 5 persons were there i.e., Ningamma, Alumelamma, Gangamma, Dr.D.Jagadeshwari and a nurse. He has further deposed that the dying declaration has been recorded as per the dictation given by him to his clerk and he is not in a position to tell the name of the said clerk. When the question has been posed to him that there is difference of handwriting in the dying declaration and the prayer, the witness has answered that while writing there is difference of writing one it is written in hurried manner another was written slowly. He has further deposed that he has also carried format along with him.
9. Deceased has suffered 80% of burn injuries and she has suffered injury to her hand, face, and other parts and further he has deposed that he did not remember how much injuries is caused to the deceased. He has further deposed that the deceased has given her statement orally and when Ex.P8, page 3 was confronted he has admitted the said fact while under treatment, the said Ningamma has given the answers by gestures. He has further answered that she used to gesture as well as she used to talk. Other suggestions have been denied by this witnesses. He has further deposed that when he had been to hospital, it was at 7.30 p.m. and when started writing Ex.P8, he does not remember the time and he has taken one hour time to record the said dying declaration. This witness was however examined by the learned prosecutor. He has deposed that he has also subsequently recorded such declaration in the format and he has further deposed that he has not recorded dying declaration in the format but he attended the hospital immediately. He had carried the white paper and reduced into writing and thereafter copied the same in the format. The prosecution has also got examined PW11 the Police Inspector, who recorded Ex.P11. In his evidence he has deposed that he received the requisition on 10.07.2012 at about 7.50 p.m. and immediately he visited the hospital and recorded her statement as per Ex.P11 and thereafter he came to the police station at about 9.15 p.m. and registered a crime No.132/2012. He has also deposed with regard to further investigation conducted by him. He has further deposed during the course of cross-examination that after registering the case he has sent the requisition to record the statement of the deceased by the Thasildar PW9. The other suggestions have been denied. PW12 is the Doctor, who has conducted autopsy over the body of the deceased and post mortem report issued as per Ex.P15. PW13 is the Doctor, who has certified about the condition of the said injured while recording Ex.P8 and she has also identified her signatures on Ex.P8 as Ex.P8(c). During the course of cross-examination it has been elicited that the deceased had burn injuries and she has been treated with medicine and along with Tahsildar, even police were also there in the hospital. The other suggestions have been denied by this witness. PW14 is the CPI, who partly investigated the case and PW15 is the Police Inspector, who further investigated and filed the charge sheet against the accused.
10. Admittedly, in the instant case on hand, the material witnesses have not supported the case of the prosecution and they have been turned hostile. The court below after considering the evidence of the hostile witnesses, by relying upon the Ex.P8 has convicted the accused. We are also of the considered opinion that all the close relatives have not supported the case of the prosecution and the entire prosecution case now rests upon Exs.P8 and P11. The statement said to have been given by the deceased before PW9. In order to consider Ex.P8 and P11 there are certain aspects which the Court has to keep in mind i.e., whether the deceased was conscious and was in a fit mental condition to make voluntary disclosure of the incident before PW9- Tahsildar, who recorded her statement and by going through Ex.P8- dying declaration by PW9, therein PW13 has only mentioned that “Patient fit to give the statement” and thereafter that she has signed. All that PW13 has stated is that the said injured was fit to give the statement but she has not specifically stated that injured was in a fit state of mind to make statement to record the same as per Ex.P8. Even as could be seen from the evidence of PW9 the Tahsildar it discloses that the said evidence is also not reposing any confidence in the mind of this Court to show that the same has been recorded in accordance with law. At one stretch, he has deposed that the said injured was in a position to speak and as stated by her, he recorded the said dying declaration as per Ex.P8. During the course of cross- examination, he has also deposed that she has also given gestures and on the basis of the gestures and answers he has recorded the said dying declaration. Even as could be seen from the evidence of PW13 it disclosed the fact that the police and PW9 came together to the hospital and even the evidence of PW9 indicates the fact that he has recorded the said dying declaration at about 7.30 p.m and he did not know what is time when it was completed. But as could be seen from Ex.P11 and the intimation from hospital to the police that the requisition itself has been received by the police at about 7.50 p.m. and thereafter he has deposed that the requisition has been sent to PW9 to record the dying declaration. If the requisition itself has been sent by PW11 after 9.15 p.m. after registration of the case, then under such circumstances, the recording of the dying declaration by PW9 from 7.30 p.m. itself creates a doubt.
11. Be that as it may, even assuming for the purpose of this case, if the said dying declaration has been recorded from 7.30 p.m., then under such circumstances that will become the first information to be registered in accordance, with law as a complaint instead of registering the case as per Ex.P11 which has been recorded only after 7.50 p.m. and even that Ex.P11 will also create a doubt that which has been recorded after 7.30 p.m. when already PW9 has deposed before the Court that he has stated that recorded at about 7.30 p.m., the evidence of PW13 which discloses the fact that the Tahsildar and police come together. It substantiates the fact that the said statement of the deceased has been recorded as per Ex.P8 and subsequently the Ex.P11 has been created and thereafter case has been registered, it clearly goes to show that already the investigation has been started and thereafter the case has been registered as per Ex.P11. In this behalf also the said aspect creates a doubt in the case of the prosecution. Even as could be seen from the evidence of PW10 during the course of cross- examination she has deposed that deceased herself poured the kerosene and lit fire and she was not in a state of position to give the statement. When all these circumstances that are looked into, thus we find it difficult to accept the fact that the said Ex.P8 or P11 as the dying declaration and to rely upon the same so as to bring the guilt of the accused without any corroboration.
12. On perusal of Ex.P10, the requisition which has been sent from the hospital to the police authorities, therein also it has been given history as patient and it is also specifically stated that the injuries have been sustained due to litting of fire by the accused. The evidence of the witnesses produced before the court clearly go to show that the said injured has sustained burn injuries to her hand and other parts of the body and she was not in a position to hold any articles. When she was not in a position to hold any articles, then under such circumstances, she signing either on Ex.P11 and P8 also doubtful. We are conscious of the fact that signature is not Sine Qua Non an essential aspect, if other factors are established. But when Ex.P8 and 11 bears the signature in that light it makes much difference.
13. We have carefully gone through Ex.P8 and P11. As it is noticed that there are so many infirmities, which were found both in Ex.P8 and P11 and even recording of the Ex.P8 – the Tahsildar-Ex.P11 reiterated the same in the format and there are also so many infirmities even in the evidence of PW9 and PW11 that there are contradictions with regard to recording of the timings. It is well settled principles of law that if there are serious infirmities in the dying declaration, then under such circumstances, it is unsafe to base the conviction of the accused solely on such dying declaration. These principles of law has been laid down by the Hon’ble Apex Court in the case of PAPARAMBAKA ROSAMMA AND OTHERS/vs./ STATE OF A.P., reported in 1999(7)SCC 695. It has been observed as under:
”8. The main question is as to whether she was conscious and was in a fit mental condition to make a voluntary disclosure of the incident. Dr K. Vishnupriya Devi (PW 10) who was attached to Tenali Government Hospital examined Smt Venkata Ramana on 4-3-1994 at 1.30 p.m. She then sent a requisition (Ex. P-9) to the Magistrate Shri K. Lakshmana Rao (PW 13) to record the dying declaration of the injured. All that Dr K. Vishnupriya Devi has stated is that the injured was conscious but she has not deposed that the injured was in a fit state of mind to make a statement. It has come on record that Smt Venkata Ramana had sustained 90% burn injuries. K. Lakshmana Rao (PW 13) who recorded the dying declaration has made a note in Ex. P-14 — the dying declaration after putting some preliminary questions to the injured and it reads as under:
“On the basis of answers elicited from the declarant to the above questions I am satisfied that she is in a fit disposing state of mind to make a declaration.”
Thereafter, the learned Magistrate proceeded to record the dying declaration. At the end, Dr K. Vishnupriya Devi (PW 10) has appended a certificate saying “patient is conscious while recording the statement”. The question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration. In our opinion, in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. It is a case of circumstantial evidence and the only circumstances relied upon by the prosecution is the dying declaration.
9. It is true that the medical officer Dr K. Vishnupriya Devi (PW 10) at the end of the dying declaration had certified “patient is conscious while recording the statement”. It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (PW 9) who performed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the statement”. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P- 14) as true and genuine and as made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly they erred in accepting the said dying declaration (Ex. P-14) as true, genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.
10. Apart from these serious lacunae, mentioned hereinabove, we find some more infirmities in the dying declaration (Ex. P-14). In the dying declaration, Smt Venkata Ramana had stated that A-1 to A-3 poured kerosene on her and thereafter she also poured kerosene on herself. Then she stated “they have burnt me with a lighted matchstick”. It is difficult to understand as to why she poured kerosene on herself. It has also come on the record that on an earlier occasion, Smt Venkata Ramana (since deceased) had tried to commit suicide. In her dying declaration (Ex. P-14) she had stated “I had not taken food for days”. These circumstances again are pointer to the fact that Smt Venkata Ramana (since deceased) was disappointed and frustrated in her married life. It is in these circumstances, we find it difficult to accept the dying declaration wherein all the three appellants are alleged to have committed the crime. It is difficult to understand as to why the three persons poured the kerosene and again all the three persons burnt her with a lighted matchstick. The above statements in the dying declaration raise a reasonable doubt as to whether she was in a fit disposing state of mind at the time when the dying declaration was recorded.”
14. It is also held in the case of ARVIND SINGH/ VS./ STATE OF BIHAR reported in 2001(6) SCC 407 that dying declaration must be worthy of credence. At para 20, it has been observed as under:
”20. Dying declarations shall have to be dealt with care and caution and corroboration thereof though not essential as such, but is otherwise expedient to have the same in order to strengthen the evidentiary value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. In our view question of the dying declaration to the mother is not worth acceptance and the High Court thus clearly fell into an error in such an acceptance. Significantly, the High Court has set aside the conviction and sentence under Section 304-B read with Sections 34 and 120-B of the Indian Penal Code so far as the father-in-law, the mother- in-law and the brother-in-law are concerned though maintained the conviction under Section 498-A. So far as the husband is concerned the High Court converted the charge from Section 304-B to 302 on the ground that the only motive of the murder could be attributed to the husband “who must be interested in committing such offence so that he can perform another marriage” — this is rather a far-fetched assumption without any cogent evidence available on record. Needless to record here that excepting one of the very keenly interested witnesses, the episode of the applicant being married again does not come from any other witness and the factum of marriage also, though stated is devoid of any particulars even as regards the name, the date of marriage etc. It is on record that on the arrival of the mother and the brother of the deceased, they found an assembly of a large number of mohalla people — but none of them were called upon to even give a corroboration to this part of the evidence of the accused marrying after the death of the deceased: no independent witness was thought of, though the factum of marriage could have been corroborated by an outside agency. The FIR and the other oral evidence available if read together full credence is attributed to the same but that itself does not and cannot permit the High Court to come to such an assumption. The assumption is faulty and is wholly devoid of any substance. As a matter of fact no special role was even ascribed to the appellant herein for apart leading any evidence thereon. Presumptions and assumptions are not available in criminal jurisprudence and in the wake of the aforesaid we are unable to lend concurrence to the assumptions of the High Court as recorded hereinbefore in this judgment. Significantly, even the dying declaration, whatever it is worth, has implicated all the four accused in a similar manner. There is no additional piece of evidence implicating the husband which would permit the High Court to convert the charge of Section 304-B to 302 — true punishment of life imprisonment is available under Section 304-B but that is the maximum available under the section and for Section 302 the same is the minimum available under the section. Though discretion to further award minimum cannot be taken away from the court. Section 302 is a much more heinous offence and unfortunately there is no evidence of such heinous activities attributable to the husband. The factum of the husband, if interested in committing such offence so that he can perform another marriage has not been put to the witnesses and in the absence of which, assumption to that effect, cannot be said to be an acceptable assumption since it is without any evidentiary support. The assumption by itself in our view is untenable”.
15. On going through the said proposition of law, it clearly indicates the fact that if there are serious infirmities in the dying declaration then it is unsafe to rely upon the same and convict the accused. Admittedly, in the instant case on hand, all the material witnesses have not supported the case of the prosecution and even there are so many infirmities in the Exs.P8 and P11 and even with regard to the statements as to which one is recorded in the first instance is also doubtful. Under said facts and circumstances, it is not safe to rely upon Ex.P8 and convict the accused/appellant.
16. We have carefully gone through the judgment of conviction and order of sentence passed by the court below. The court below without looking into such provisions of law, only on the basis of the Ex.P8 has wrongly come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. It is well established principles of law that whenever doubt arise and it is not safe to rely, then under such circumstances, the benefit of doubt should be given to the accused.
17. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence passed by the Additional District and Sessions Judge, Chikkaballapura in S.C.No.82/2013 dated: 18.06.2014 is set aside. The appellant/accused is acquitted of the charges levelled against him for the offences punishable under Sections 498A and 302 of Indian Penal Code and he is set at liberty forthwith, if his presence is not required in any other case.
The concerned prison authorities are hereby directed to release the appellant/accused forthwith, if he is not required in any other case.
The Registry is directed to communicate the operative portion of this judgment to the concerned prison authorities to release the accused/appellant forthwith, if he is not required in any other case.
SD/- JUDGE SD/- JUDGE KLY/