IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 PRESENT:
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA AND THE HON'BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL NO.1187 OF 2013 BETWEEN:
RANGASWAMY S/O NINGARAJ AGED ABOUT 28YEARS OCC: AGRICULTURIST R/O DEVARAPURA VILLAGE KUNDURU HOBLI ALUR TALUK HASSAN DISTRICT-573213. ... APPELLANT (BY SRI R.B.DESHPANDE, ADVOCATE) AND:
THE STATE OF KARNATAKA BY ALUR POLICE STATION-573213. ...RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED : 10/19.10.13 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, C/C FTC, HASSAN IN S.C.NO.173/12 CONVICTING THE APPELLANT /ACCUSED FOR THE OFFENCE P/U/S 302 R/W 34 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR LIFE FOR THE OFFENCE P/U/S 302 R/W 34 OF IPC. FURTHER HE SHALL PAY FINE OF RS.5,000/- IN DEFAULT OF PAYMENT OF FINE AMOUNT, HE SHALL FURTHER UNDERGO S.I. FOR A PERIOD OF TWO MONTHS.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, K.N.PHANEENDRA, J., DELIVERED THE FOLLOWING:
J U D G M E N T The Respondent-Police have prosecuted two accused persons, namely, Rangaswamy who is the appellant herein and his mother Smt.Sarasamma before the Trial Court for the offence under Section 302 read with Section 34 of the Indian Penal Code. It appears that second accused Smt.Sarasamma died long back by committing suicide. Therefore, accused No.1/appellant was tried by the Trial Court for the above said offence. The learned Fast Track Judge, Hassan has convicted the appellant in S.C.No.173 of 2012 vide judgment dated 10.10.2013 for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- with default sentence of simple imprisonment for two months.
2. Before adverting to the grounds urged by the learned counsel for the appellant and counter arguments by the State Public Prosecutor, we feel it just and necessary to have brief factual matrix of this particular case:
A lady by name Renuka PW-1 has lodged First Information Report as per Ex.P1 before Alur Police stating that, her daughter Divya was given in marriage to PW-2 Manjunath about four years prior to the incident. The accused/appellant who is the neighbor was residing in the house situated opposite to the house of PW-1. Infact, accused No.1 was having hatred against the deceased Divya and in this context, on 12.03.2012 at about 5.00 p.m., the appellant has infact started quarrelling with the deceased questioning that as to what happened to her case given against the accused earlier, and the accused and his mother have threatened the deceased and her mother PW-1 with dire consequences of killing, etc., By saying so, accused Nos.1 and 2 have splashed kerosene on the deceased and lit fire on her, due to which the deceased sustained burn injuries and thereafter, an attempt was made to extinguish the fire by pouring water on her and thereafter, she was shifted to the hospital. She survived upto 02.04.2012 and on 02.04.2012, she succumbed to the burn injuries due to renal failure. On the basis of the complaint lodged by PW-1 prior to the death of the deceased, the police have registered a case in Cr.No.81 of 2012 for the offence under Section 307 of I.P.C. Subsequently, on the report given by PW-2 Manjunath, the police have converted the said case for the offence punishable under Section 302 of I.P.C. and after investigation, the police have lead the charge-sheet for the above said offence. The accused was also arrested in connection with the case on 23.03.2012. It appears that since then, the accused has been in judicial custody. The Trial Court has secured the presence of the accused and framed charges against the accused for the above said offence under Section 302 of I.P.C. and put him on trial.
3. The prosecution in order to prove the guilt of the accused has examined as many as 20 witnesses and got marked Exs.P1 to 23 and also material objects, MOs 1 to 5. The accused was also examined under Section 313 of Cr.P.C. and thereafter, called upon him to enter into the witness box and lead defence evidence, if any. As the accused did not choose to lead any defence evidence, after appreciating the oral and documentary evidence on record, the Trial Court came to the conclusion that, the prosecution has proved the guilt of the accused beyond reasonable doubt and accordingly, convicted him and sentenced him as noted supra.
4. Learned counsel for the appellant strenuously contended before this Court that because of some previous conduct of the accused that once the accused had tried to outrage the modesty of the deceased Divya, a complaint has been lodged by the mother of the deceased against him. He also further submitted before this Court that the said deceased Divya did not beget any child for a period of four years after the marriage and further there was some dispute between the husband and wife. The deceased Divya and her mother PW-1 were not happy with the conduct of the husband of the deceased, i.e., PW-2 Manjunath. Therefore, all was not well in the family of the deceased and therefore, the deceased being frustrated with her life has committed suicide by pouring kerosene on herself and litting fire on her. Taking advantage of that situation, the prosecution has created a story of murder and falsely prosecuted the accused. Therefore, on overall analysis of the entire oral and documentary evidence on record, the accused is entitled to be acquitted.
5. The learned counsel for the appellant further submitted that, coupled with the evidence of PW-1 who claim to be the eye witness and also the distorted dying declaration of the deceased, nothing is there to connect the accused and all the other eye witnesses and circumstantial witnesses have not supported the case of the prosecution. When the case revolves around a sole eye witness and dying declaration, the Court should always be slow in convicting the accused, rather it should prefer to acquit the accused. Therefore, he submitted that the appellant may be acquitted of the charges leveled against him.
6. Countering the above submissions made by the learned counsel for the appellant, the learned Additional State Public Prosecutor contends before this Court that a sole eye witness is none other than the mother of the deceased who has candidly stated about her presence and about the incident, nothing worth has been elicited in the course of the cross-
examination to disbelieve her evidence though the other witnesses have not supported the case of the prosecution. But, the evidence of PW-1 is trustworthy for acceptance, the Court can even rely upon such trustworthy witness to convict the accused. He further submits that apart from the above said testimony of PW-1, the prosecution has unequivocally established the dying declaration recorded by the Assistant Commissioner PW-20 coupled with the evidence of the doctor who gave the opinion that, the deceased was in a fit condition to give statement. They are the public servants and that there is no reason to disbelieve their evidence. No iota of evidence is available in the defence of any of the witnesses to even probabilize that the death was a suicidal one. Therefore, he pleads for the dismissal of the appeal.
7. Before adverting to the material evidence on record, we feel it just and necessary to have a cursory look at the evidence of the prosecution witnesses.
i) PW-1 Renuka is the mother of the deceased who is a sole eye witness and also spoke about the lodging of the report as at Ex.P1.
ii) PW-2 Manjunath is actually a hear-say witness who came to the picture later and came to know of the injuries being sustained by his wife and also he spoke about the previous conduct of the accused with his wife.
iii) PW-3 Sampathu is also an eye witness has not supported the case of the prosecution.
iv) PW-4 Nagamma, PW-5 Jayamma, PW-6 Sudha are all the neighbors. According to PW-1, they all came to the spot and assisted PW-1 in shifting the deceased to the hospital. But these witnesses also turned hostile to the case of the prosecution.
v) PW-7 Jagadeesha is the panch witness to Ex.P2, the spot mahazar in which the police have seized certain articles, i.e., MOs.1 to 4, the clothes of the deceased and one Kerosene Can and matchbox, etc., But he also turned hostile to the prosecution.
vi) PW-8 Virupaksha who alleged to be present at the time of the accident who is none other than the relative of PW-1 did not support the case of the prosecution.
vii) PW-9 Devaraju is also another witness to Ex.P2 but did not support the case of the prosecution.
viii) PW-10 Rajegowda is the inquest witness who has seen the dead body with burn injuries.
ix) PW-11 Dr.Praveenkumar has conducted the post- mortem examination on the deceased and gave his report as per Ex.P9.
x) PW-12 K.Mathai is the Tahsildar who conducted the inquest proceedings as per Ex.P11.
xi) PW-13 is the person who gave the endorsement as per Ex.P15 with regard to the status of the injured when the request was made for recording of the statement of the victim as per Ex.P13, which is treated as dying declaration later.
xii) PW-14 Puttahanumantharaju is the Assistant Engineer who prepared the sketch of the scene of the offence as per Ex.P14.
xiii) PW-15 Y.Mudduraj who was working as P.S.I. who requested Sub-Divisional Magistrate to record the dying declaration as per Ex.P15. Subsequently, he also apprehended the accused on 23.03.2012 and he also spoke about the earlier incidents and Exs.P22 and 23 were produced by him before the Court.
xiv) PW-16 Somashekara is the person who carried First Information Report to the Court after registration of the crime against the accused.
xv) PW-17 Kumaraswamy who carried the articles seized in this case and handed over the same to the F.S.L. Department, Madiwala, Bengaluru.
xvi) PW-18 G.T.Rangegowda is the Head Constable of Alur Police Station who has registered a case on the report filed by PW-1 as per Ex.P1 and registered a case in Crime No.81 of 2012.
xv) PW-19 Jayalakshmamma is the woman police inspector who has completed the investigation and submitted charge-sheet against the accused.
xvi) PW-20 K.H.Jagadeesh working as Assistant Commissioner is the prime witness to the prosecution case who went to the hospital at the request of the Investigating Officer and recorded dying declaration as per Ex.P13.
8. As could be seen from the materials on record and in view of the submissions made by the learned counsel for the appellant, there is absolutely no dispute with regard to the death of the deceased Divya due to burn injuries. Further, the evidence of the doctor, PW-11 clearly discloses that, the death of the deceased occurred due to renal failure as a result of late complication of burn injuries. In the course of cross- examination, nothing has been elicited to probabilize that the said death was due to suicide of the deceased. As to how a suicide would occur in this case is also nowhere got explained through the evidence of the doctor who has treated the victim nor the doctor who has given a certificate with regard to her fitness and also no questions have been put to the doctor who conducted the post-mortem examination. In the absence of such elucidation of facts, the evidence of doctor, PW-11 along with the inquest proceedings conducted by the Tahsildar as per Ex.P11, these documents, particularly, post-mortem examination report marked at Ex.P9 and inquest report marked at Ex.P11, these two documents clearly establishes that the deceased sustained burn injuries and as a late complication of burn injuries, she died due to renal failure. Though the cause of death is because of renal failure, there is nexus or connection between the burn injuries and the death of the deceased. Therefore, the prosecution infact has established that the deceased died a homicidal death.
9. Now the question arises who is responsible for the death of the deceased. Ofcourse, some of the witnesses PW-3 to PW-9 have not supported the case of the prosecution though circumstantially they have supported the case at the initial stages during the course of the investigation. The Court is now left with the evidence of PW-1 and the dying declaration. When the case revolves around a sole eye witness and dying declaration, it is not that the Court altogether discard the evidence but as a matter of caution, the Court has to carefully examine the evidence of such witnesses in a careful manner so as to draw an inference as to whether the prosecution has proved its case beyond all reasonable doubt. It is worth to mention here a decision of the Apex Court reported in 1995(4) Crimes Page 516 (Karthik Malhar Vs. State of Bihar) wherein the Apex Court has observed in the following manner:
“Conviction based on testimony of a single witness - whether legally sustainable “Yes” – Provided his credibility is not shaken by any adverse circumstances appearing on record against him, and the Court is convinced that he is truthful witness. The Court will not then insist on corroboration, by any other eye-witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye-witness being present. Indeed the Court insist on the quality and not on the quantity of evidence.”
10. Even in so far as the dying declaration is concerned, the Court has to satisfy itself that the dying declaration is credible and acceptable, and it was recorded when the deceased was mentally and physically sound enough to make such statement and there are no impediments in recording the dying declaration and further the dying declaration was recorded in a quite natural manner. If all these aspects are established by the prosecution, there is no scope for rejecting of such evidence. In this background, now, we will examine the evidence of PWs-1 and 2.
11. PW-1 is said to be the eye witness. PW-1 is none other than the mother of the deceased. She has categorically stated that, earlier to the incident on a particular day she had come to the house at about 4.30 p.m., then she found her daughter lying on the ground with giddiness, she had sustained an injury to her left hand and she was bleeding through that injury. PW-1 enquired her and then the deceased told PW-1 that the accused came there and tried to outrage her modesty and tried to snatch her mangalya chain, etc., In this background, it is stated that a complaint was lodged against the accused and the said case is still pending before Alur Court. She has also further stated that, on the date of the incident, the accused came to the house of PW-1 and started quarreling with the deceased and splashed kerosene on her along with his mother and he actually lit fire on the deceased and went away from the spot by throwing the matchbox on the spot itself. Due to which, the deceased sustained burn injuries and PW-1 and others by name Nagamma, Sudha, Jayamma and Sampathu who all came to the spot little later tried to extinguish the fire and thereafter shifted the injured to the hospital. Narrating the above factual aspects, she lodged Ex.P1. She also deposed that after twenty days, the deceased died in the hospital.
12. In the course of the cross-examination, ofcourse, it is elicited that the accused is none other than the neighbor of PW-1 and it is elicited that accused Nos.1 and 2 while coming to the house of the deceased itself have brought kerosene can and matchbox. She had also stated that after shifting of the deceased to the hospital, the deceased was in talking condition for two days, after she was admitted to the hospital. But in the course of cross-examination, it is also elicited that for a period of four days, the deceased was not in a talking condition. The police have visited the hospital and taken the left hand thumb impression of the deceased on the statement.
13. The learned counsel in this regard argued before the Court that when the deceased was not in a condition to give any statement for a period of four days, the recording of dying declaration falls to the ground but in the examination-in-chief and cross-examination, if both are taken together, it is clear that PW-1 is not consistent with regard to this aspect, whether the victim was in a talking condition in the hospital or not. It is an undisputed fact that for a period of twenty days, the deceased survived. The post-mortem report also shows that she had sustained 2nd to 3rd degree burns. The doctor PW-11 also never stated that she was unconscious when she was admitted to the hospital and she had only sustained 40 to 45% of burns. So, looking to the entire incident, when a person sustained 40 to 45% of burns, it cannot be presumed that she will invariably go to coma or she may not be in a position to speak out. In this background, the evidence of the doctor who gave the fitness certificate permitting PW-20 to record the dying declaration shall also be taken into consideration. Therefore, in our opinion, the evidence of PW-1 has not been completely eradicated during the course of cross-examination. Nothing un-reasonable or un- natural is established in the course of the cross-examination as to why her testimony has to be discarded or disbelieved. Ofcourse, it is also there in the cross-examination that the deceased and PW-2 were not in good terms and often PW-1, deceased and PW-2 were quarreling with each other. The deceased Divya, because of her unhappiness with PW-2 left the conjugal company of PW-2 and came to the house of PW-1 and she was frustrated in life and therefore, she might have committed suicide. Though these facts are put to the mouth of PW-1 by way of suggestions but all those suggestions have been flatly denied by PW-1. There is no other material to prove about this particular suggestion to establish as to why the deceased has to commit suicide. On the other hand, the evidence of PW-2 is very much candid and clear about the incident and that the accused had splashed kerosene on her and lit fire. Therefore, we are of the opinion that there is no reason to disbelieve the evidence of PW-1.
14. Now, coming to the dying declaration of the deceased, the evidence of PW-15 Mr.Mudduraj discloses that on 13.03.2012, he made a request to the Tahsildar to record the dying declaration of the injured Divya and the said request was marked at Ex.P15. On the basis of Ex.P15, PW-20 K.H.Jagadeesh has deposed before the Court that as the Tahsildar, Hassan was not available during that time, he himself received the said Ex.P15 and went to the hospital and recorded the dying declaration of the victim Divya. He also deposed before the Court that he sent a request to the hospital as per Ex.P12 requesting the doctor to furnish the status certificate of the injured whether she is in a fit condition, to record the dying declaration. Thereafter, he went to the burns ward along with the doctor and recorded the dying declaration. He also vividly stated that he enquired the victim about her name, husband’s name, age, place of residence and other questions in order to satisfy himself whether the said victim was in a condition to give any statement or not. Thereafter, he himself certified that she was in a fit condition to give statement apart from the certificate given by the doctor and thereafter he recorded the statement.
15. At Para No.4 of his evidence, he has categorically stated exactly what the deceased has stated before him and it is elicited that the accused has splashed kerosene on her and lit fire with a match stick. He recorded the dying declaration as per Ex.P13 and the doctor who was present at the time of recording dying declaration also certified the same as per Ex.P13(b) and he also identified his signature as at Ex.P13(a) and Ex.P13(c). During the course of cross-examination, it is made further clear that, the deceased was admitted to the hospital long back about 20 days prior to her death that itself goes to show that, the deceased had not sustained so much of injuries which were sufficient to completely make her unconscious so that she could not give any statement. Though PW-20 has stated that he did not know whether the doctor has examined this lady earlier or not but he is very specific that the doctor was present throughout at the time of recording of the statement. Except that, no worthy evidence has been elicited from the mouth of this witness as to why he has given false evidence against the accused. The core of his evidence is not controverted in the course of cross-examination of PW-2, his evidence is also fully supported by the evidence of Dr.H.M.Prakash examined as PW- 13.
16. PW-13 has deposed before this Court that on 13.03.2012 at about 6.50 p.m., PW-20 Sub-Divisional Magistrate made a request as per Ex.P12 asking for the opinion of the doctor with regard to the physical and mental status of the injured for the purpose of recording the dying declaration. This witness has also stated that the Senior Division Magistrate came to the hospital and infact this witness has given the certificate that the injured was in a fit condition to give her statement noting the same as per Ex.P12, thereafter the Magistrate has recorded the dying declaration of the deceased. In the course of the cross-examination, it is elicited that this doctor has not given treatment to the injured but he has stated that he has verified the case-sheet of the victim and what all treatment has been given to the victim however he admits that he has not been mentioned the same in Ex.P12. He has reiterated that at the time of recording the dying declaration, this witness was present throughout. A suggestion was made to this witness that he was not present at the time of recording of dying declaration and the same was denied by him. Ofcourse, it is elicited that in Ex.P12, it not specifically stated by using specific words that the deceased was mentally and physically fit to give statement but on the other hand, it is stated by the doctor that she was in a fit condition to give statement. Nothing more has been controverted in the course of cross-examination as to why the evidence of this witness has to be disbelieved. He being a public servant, while discharging the duties as a public servant in a usual way has given such evidence before the Court. Unless there is a strong material to show that this witness has acted in a peculiar or unusual manner so as to help the prosecution in order to falsely implicate the accused of the Court should not disbelieve the evidence of such public servant unless it is shown to the Court that their evidence is not credible or trustworthy or otherwise, not acceptable.
17. Therefore, re-appreciating the evidence of these two witnesses coupled with the evidence of PW-1, the prosecution in our opinion has amply placed sufficient materials to draw an inference that the deceased died due to homicidal death and it is very clear from the dying declaration that, on that particular date, the accused Nos.1 and 2 came to her house and splashed kerosene on her and lit fire on her. In the above said circumstances, the Trial Court has also appreciated the above such evidence on record in proper perspective. There is no reason for this Court to take a different view from that of the opinion expressed by the Trial Court. In our opinion, the prosecution has proved its case beyond all reasonable doubt that the accused is the perpetrator. Therefore, we do not find any reason to interfere with the judgment of conviction and sentence passed by the Trial Court. Therefore, we pass the following:
O R D E R The Appeal is devoid of merits and the same is liable to be dismissed and accordingly, dismissed.
SD/- JUDGE SD/- JUDGE dh