Karnataka High Court
State By Old Town Police vs Anthony Nikolas on 21 November, 2005
Equivalent citations: 2006CRILJ1582, ILR2006KAR905, 2006(4)KARLJ318
Author: S.R. Bannurmath
Bench: S.R. Bannurmath, A.C. Kabbin
JUDGMENT S.R. Bannurmath, J.
1. This is apathetic and bizarre case where the accused-father of the deceased Sunitha is held guilty of the offences under Section 306 and 354 Indian Penal Code and sentenced to undergo RI for 5 years and to pay a fine of Rs. 1000/- for offence Under Section 306, in default of payment of fine to undergo SI for 3 months and also to undergo SI for three months for the offence punishable under Section 354 of Indian Penal Code and to pay a fine of Rs. 500/- in default of payment of fine to undergo SI for one month by the learned Additional Sessions Judge, Shimoga by judgment of conviction and sentence dated 4-11-2000.
2. The brief facts of the case giving rise to the present appeal are as follows:
The deceased Sunitha, daughter of the accused Antony and PW 4 Neelamma was aged around 15 years at the time of incident i.e., on 21-2-1997. According to the prosecution, because of poverty and necessity, both accused and his wife used to go for work and whenever the wife PW4 was absent from the house, the accused was enticing his daughter to have sexual intercourse with him and whenever she refused, he used to abuse and treat her cruelly. Unable to withstand the mental and physical torture, it is the case of the prosecution that on 21-2-1997 at about 4.00 p.m., the deceased decided to end her life and doused herself with kerosene and set herself on fire. Thereafter when her cries were heard, the neighbours rushed in, took her to the hospital and ultimately inspite of medical treatment, she breathed her last on 22-2-1997 at 11.30 p.m. in the Shimoga Hospital.
3. Immediately after her admission to the hospital, as this was a medico-legal case, the doctor sent intimation to the police. PW10-Bhagwantappa, Head Constable who was on duty, on receipt of the information, immediately rushed to the hospital and after asserting as to mental and physical fitness of the then injured Sunitha, recorded her statement as per Ex.P. 10 and treating the same as first information, registered a case in Crime No. 25/97 initially for the offence under Section 354 Indian Penal Code against the accused and investigation was taken up. It is needless to mention that after the death of Sunitha in the hospital due to burn injuries, offence under Section 306 Indian Penal Code also came to be added. The next part of the investigation was taken up by the PSI, PW. 11 -Shivakumar who on the same day records further statement of the then injured victim as per Ex.P. 11, the statements of the neighbours, and also recorded necessary mahazars like spot mahazar, prepared sketch and after receipt of all the reports including autopsy, the accused was charge sheeted for the offences under Sections 354 and 306 Indian Penal Code.
4. After committal and on being framing the aforesaid charges, since the accused denied charges and claimed to be tried, he is tried in Sessions Case No. 40/97. The prosecution to prove the guilt of the accused, apart from the two dying declarations Exs. P. 10 and 11, relied upon the oral dying declaration said to have been made by the injured Sunitha before her neighbours PWs 1 to 3 and 5. It is to be noted that these witnesses did not support the prosecution case especially the alleged dying declaration made by the then injured Sunitha and hence at the trial, they were treated as hostile. Inspite of searching cross examination, nothing helpful to the prosecution has been brought out by the State. Nevertheless, believing the dying declaration of the deceased, the Trial Court at conclusion of the trial, held the accused guilty on both the counts and sentenced him to undergo R.I for 5 years for the offence under Section 306 Indian Penal Code with a fine of Rs. 1000/- carrying default sentence and SI for 3 months for the offence under Section 354 Indian Penal Code with a fine carrying default sentence.
5. Aggrieved by the said judgment of conviction, the accused this Criminal Appeal 778/01, whereas considering the sentence impsosed as too inadequate, the State has come up in Criminal Appeal No. 153/01 under Section 377 Criminal Procedure Code seeking enhancement.
6. Since both the appeals arise from the same judgment and evidence and as common question of appreciation of law and facts arise, both the appeals are taken up together for consideration.
7. It is to be noted that as the accused has filed the appeal through jail authority as an indigent person, this Court after securing the presence of the accused and hearing him and with his consent requested Sri K.B. Hiremath-Learned Counsel to assist the Court as Amicus Curiae. Sri K.B. Hiremath appears in both the appeals for the accused and Sri Rudramani- Additional Government Advocate for the State.
8. The entire case of the prosecution rests on the dying declaration made by the deceased. The main attack of the Learned Amicus Curiae is that as the deceased at the time of making her dying declaration was suffering from 95 to 100% bums, she could not have given the statement and as such both Exs. P. 10 and 11 are concocted and created documents and as such to be discarded out rightly. It is submitted that if the two dying declarations are kept aside, there is absolutely no evidence to connect the accused with the crime in question and as such the accused is entitled for benefit of doubt and acquittal.
9. On the other hand Sri Rudramani vehemently contended that as the dying declaration is made in a fit condition by deceased Sunitha, in the absence of any material evidence shown as concocted, the same has been rightly accepted by the Court. In addition, he submitted supporting the appeal of the State that in the peculiar facts and circumstances of the case, this sentence of 5 years for the offence under Section 306 Indian Penal Code is inadequate and same is liable to be enhanced.
10. Since the entire case of prosecution revolves on the dying declaration and as it is the sole basis for the conviction of the accused, we have kept in our minds the principles behind acceptability of such dying declarations. The acceptance of dying declarations is based on well settled maxim "NEMO MORITURUS PRESEUMTOR MENTIRI. In short in simple language, a man will not die with a lie in his mouth. The general principle on which this species of evidence is admitted is that these are declarations made in extremity, when the person making it is at the point of death, and when hopes of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful considerations to speak truth; a situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in the Court of justice. The various guidelines laid down by the Hon'ble Supreme Court right from the case of KUSHAL RAO v. STA TE OF BOMBAY and . All these decisions have been reconsidered and reiterated by the Apex Court once again in the case of JAI KARAN v. STATE OF DELHI 1999 SCC (Crl) 1385. As there was some differences of opinion regarding the necessity of Doctor's certificate in respect of dying declarations, the Constitutional Bench of the Apex Court in the case of LAXMAN v. STATE OF MAHARASHTRA AIR 2002 SCW 3479 clarified the position. Thus the law as it stands today is that there is no impediment to accept a dying declaration if the prosecution satisfies that the same was voluntary i.e., to say the untutored and the author was both physically and mentally fit to give such statement Keeping in mind these principles and guidelines, we have considered the case on hand.
11. As already noted, except the dying declaration of the deceased Sunitha, there is absolutely no material and hence it is imperative on our part to consider the correctness or otherwise alongwith acceptability of the same. So-far-as Ex.P. 10 is concerned, it is to be noted that the same was recorded as the first information on the basis of which a case has been registered by jurisdictional police. This is not a dying declaration as such in the strict sence. It is only the first information given by an injured. However, it has assumed the character of a dying declaration under Section 32 of the Evidence Act in view of the fact that it discloses the reason or cause of the death of the author. No-doubt there is additional dying declaration recorded by the PSI in the form of Ex.P. 11 also. On perusal of the evidence of the doctor-PW8-Dr. Vishalakshi, she has stated that the injured Sunitha was admitted to the hospital at about 4.00 p.m. and she was conscious and speaking coherently. The doctor has stated in her evidence that it is the injured who stated that it is she who tried to commit suicide because of the bizarre attitude of her father viz the incest. Apart from their being no cross examination of the doctor helpful to the defence to show that either the doctor has falsely given the opinion only to implicate the accused or the police have created this evidence, we also have positive documentary record in this regard. Ex.P.12-the medico-legal register and the relevant entry at Ex.P. 12a shows that immediately after admission to the hospital, the doctor has recorded the history of the case given by the injured herself. It reads thus:
As told by Sunitha after 2-3 minutes of Ox.inhalation: She was forced by her father to marry him against her will. She was threatened if she were to disclose this to her mother. So she was feeling sad and burnt herself with kerosene. At the time of occurrence of the incident, nobody was inside the house. She cried and shouted and was brought to the hospital in an auto by the neighbours.
She reiterated the same statement in fact to the police. It is noteworthy that in the accident register extract itself, the condition of the patient on arrival is noted as "patient was conscious and talking relevantly". This entry in the medico legal register at the undisputed point of time clearly indicates that it is the bizarre incest attitude of the accused-father towards his daughter which has led her to commit suicide. No doubt the words "she was forced by her father to many him against her will" even shows the modesty of this untolerant girl. She does not want to indicate that the accused was making every attempt to have sexual intercourse with her. On going through this history given before the Doctor as well as the first information Ex.P. 10 which has assumed the character of the dying declaration and Ex.P. 11, another dying declaration recorded by the PSI alongwith the positive evidence of the doctor PW8 attending her through out, it leaves no doubt in our minds that this statement of dying Sunitha is truthful and has to be accepted. There is absolutely no reason even to suspect anybody else's hand to falsely implicate the accused in the crime in question. There is no material to suspect such dying declaration. Added to this, the abscondence of the accused for 3 days, his failure to give any explanation as to why his daughter committed suicide and more importantly, why she should falsely implicate him with such a serious allegation, we find that the Trial Court was justified in holding that the prosecution has proved its case against the accused for the offences under Section 306 and 354 Indian Penal Code. After careful scrutiny of the entire evidence and even after reappreciation of the same, we find that the conclusion of guilt of the accused arrived at by the Trial Court is just and proper and needs no interference.
12. This takes us to the next question as to the adequacy or otherwise of the sentence imposed. The Trial Court after hearing the accused, though felt that the act of the accused was almost inhuman, by reason of the age of the accused, took lenient view and imposed RI for 5 years for the offence under Section 306 Indian Penal Code and SI for 3 months for the offence under Section 354 Indian Penal Code alongwith fine and default sentence.
13. We have given our anxious consideration to the question of sentence. It is well settled that while considering the question of sentence to be imposed, the Courts are required to be sensitive as to the nature of crime and its effect on the society. The ultimate aim of criminal law is protection of right to personal liberty against its invasion by others-protection of the weak against the strong, law-abiding people against lawless, peaceful against the violent.
14. The Hon'ble Supreme Court in the case of RAVAJI v. STATE 2004 Crl. L.J. 658 observed thus "it is the nature of and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against the society.
15. Lord Denning appearing before the Royal Commission on 'Capital Punishment' expressed following views "punishment is the way in which society expresses its denunciation of wrong doing and in order to maintain the respect for law, it is essential that punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of the citizen. For them it is a mistake to consider the object of punishment as being deterrant or in affirmative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists adequate punishment because the wrongdoer deserves it, irrespective of whether it is deterrent or not."
16. The Hon'ble Supreme Court in the case of SUSHIL MURMU v. STATE OF JHARKAND 2004 Crl. L.J. 658 observed thus "the principle of proportion between crime and punishment is a principle of just deserts that serves as the foundation of every criminal sentence that is justifiable." As a principle of Criminal Justice, it is hardly less familiar or less important than the principle that only the guilty shall be punished. Indeed the requirement that punishment shall not be disproportionately great, which is called as the principle of just deserts is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what the criminal's conduct deserves is a punishment without guilt. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion in arriving at correct decision on the sentence in each case, presumably to permit sentences that reflect more supple consideration of culpability that are raised by the special facts and circumstances of each case. The Courts in essence affirm that punishment which always ought to fit the crime; yet in practice sentences are determined also by other considerations, like correctional need of the perperator. One of the considerations is the desirability of keeping the accused out of circulation and sometimes even the tragic results of his case. The proportion between crime and punishment is a goal respected in principle and in spite of different views, it remains a strong influence in the determination of sentence. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of tolerance that is unwarranted and unwise."
17. In the present case, as already noted, a father, who is required to protect his daughter, has cast his lustful eyes on her and was trying to force her to have sexual intercourse with him. As a modest young girl, though the deceased Sunita tried to resist, ultimately, she could not do so and thought to end her life itself prematurely by setting on fire after pouring kerosene on herself. The conduct and attitude of the accused, ultimately resulting in nipping a young life in bud, deserves the maximum punishment.
18. In the result, the Criminal Appeal No. 778/2001 filed by the accused stands dismissed. Criminal Appeal No. 153/2001 filed by the State for enhancement of the sentence is allowed. The accused is sentenced to undergo maximum punishment for the offence under Section 306 IPC, viz., R.I. for 10 years with a fine of Rs. 5,000, in default to undergo R.I. for 2 years. The sentence for the offence under Section 354 IPC is also enhanced to imprisonment for two years with a fine of Rs. 500. It is made clear that both the sentences shall run consequtively.
19. Before conclusion, we place on record our appreciation to the services rendered by the Learned Amicus Curiae and direct the office to pay him an honourarium of Rs. 3,000/-.