Karnataka High Court
The State Of Karnataka vs Sri Chinnappa on 13 October, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.274 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL NO.274 OF 2017 (A)
BETWEEN:
The State of Karnataka,
By K.R.Puram Police Station,
Bengaluru.
Represented by
State Public Prosecutor,
High Court of Karnataka,
Bengaluru-1. .. Appellant
(By Sri. B.N. Jagadeesha, Addl. SPP)
AND:
Sri Chinnappa
S/o Nagappa,
Aged about 26 years,
R/at Church Road,
Swathantra Nagar,
K.R.Puram,
Bengaluru-560 049.
Native Place:
Peddagollahalli Grama,
Gudapalli Post,
Kuppam Taluk,
Chithoor District-516 259. .. Respondent
(By Sri. Basavaraju, T.A. Advocate)
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CRL.A No.274 of 2017
This Criminal Appeal is filed under Section 378(1) and (3)
of Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order dated 07.09.2016, passed by
the learned XLV Additional City Civil and Sessions Judge,
Bengaluru City in S.C.No.149/2015, thereby acquitting the
accused/respondent for the offences punishable under Sections
498A and 302 of IPC and set aside the judgment and order
dated 07.09.2016 passed by the learned XLV Additional City
Civil and Sessions Judge, Bengaluru City in S.C.No.149/2015,
thereby, acquitting the accused/respondent for the offences
punishable under Sections 498A and 302 of IPC, convict the
sentence the accused/respondent for the offences punishable
under Section 498A and 302 of IPC., by allowing the appeal in
accordance with law, in the interest of justice and equity.
This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
22.09.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The present appellant as the State/complainant had initiated a criminal proceedings against the respondent arraigning him as accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') in the Court of learned XLV Additional City Civil and Sessions Judge, Bengaluru City (hereinafter for brevity referred to as 'the Sessions Judge's Court') in S.C. No.149/2015. After the trial, the accused was acquitted of all the alleged offences. Seeking setting aside of the impugned judgment -3- CRL.A No.274 of 2017 dated 07.09.2016, the State has preferred the present appeal under Sections 378(1) & (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.).
2. The summary of the case of the prosecution before the Sessions Judge Court was that, the accused, who is the present respondent herein, is the husband of deceased one Smt.Kavitha, (hereinafter referred to as 'the deceased') whose marriage was performed on 09.11.2011. After their marriage with each other, the accused was subjecting 'the deceased' to physical and mental cruelty. He was consuming alcohol everyday and used to quarrel with the deceased. He was assaulting her and also was abusing her in filthy language. That being the case, on the date 20.09.2014, the accused after consuming liquor came to his house and initiated quarrel with the deceased. While quarreling he poured kerosene on his wife and set fire on her. After some time, the accused himself shifted his wife to Victoria Hospital, Bengaluru, where she was admitted as an inpatient. While under -4- CRL.A No.274 of 2017 treatment, on 26.09.2014, at 3.45 a.m. injured succumbed to the injuries in the hospital.
It is also the prosecution case that after the injured was admitted to Victoria Hospital at Bengaluru, based upon MLC information received by them, the complainant-Police visited the hospital on 21.09.2014 at 2.15 a.m. and recorded the statement of the injured through its Assistant Sub-Inspector of Police (PW-13), however, it was registered in the complainant - Police Station in NCR No.402A/2014. Thereafter, the Special Tahasildar of K.R. Puram recorded one more statement of the injured on 22.09.2014, at 7.45 p.m. where, the injured was shown to have stated that it was her husband i.e., the accused who poured kerosene on her and put fire. As such, the said statement of the injured was registered in complainant - Police Station in their Station Crime No.544/2014 under Section 307 of IPC against the accused. Later, after the death of 'the deceased' as aforesaid, the complainant police recorded the statement of one Sri. Keshavamurthy Son of Narayanappa (PW-3), who is said to be the elder brother of the deceased on 26.09.2014 and included the same in their -5- CRL.A No.274 of 2017 Station's existing Crime No.544/2014, which was for the offence punishable under Section 307 of the IPC and substituted the offence from Section 307 IPC to Section 302 of IPC and proceeded with investigation. After completing the investigation, the complainant police filed charge sheet against the sole accused (respondent herein) for the offence punishable under Sections 498A and 302 of IPC.
3. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined sixteen (16) witnesses as P.W.1 to P.W.16 and got marked twentyone documents from Exs.P.1 to P.21(a) and one Material object M.O.1 was marked. Statement of the accused under Section 313 of Cr.P.C. was recorded. From the accused side, neither any witness was examined nor any document was produced as an Exhibit.
4. After hearing both sides, the learned Sessions Judge's Court, by its impugned judgment dated 07.09.2016, acquitted the accused of the offences charged against him. -6- CRL.A No.274 of 2017 Challenging the same, the appellant-State has preferred the present appeal.
5. The appellant -State is being represented by the learned State Public Prosecutor and respondent is being represented by his learned counsel.
6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court and also the Sessions Judge's Court records.
8. Learned Additional State Public Prosecutor for the appellant in his argument submitted that there is no dispute that the death of the deceased, which was on 26.09.2014, in the afternoon, was homicidal. The evidence of PWs-7, 8 and 14 and Ex.P.8 proves that deceased has given her dying declaration, which was recorded by the Tahasildar, wherein, the deceased has stated that she sustained burns due to accused pouring kerosene upon her and lighting fire to it. The said dying -7- CRL.A No.274 of 2017 declaration of the deceased was further corroborated by the evidence of PWs-1, 2, 4, 5 and 6. Therefore, it stands proved beyond doubt that it was the accused who had intentionally caused the death of his wife (Smt.Kavitha) and thus, has caused her murder.
9. Learned Additional State Public Prosecutor further submitted that all the six witnesses from PWs-1 to 6 have uniformly stated that, prior to her death, the deceased was being subjected to cruelty by the accused regularly and repeatedly. Thus, it also stands proved that the deceased was subjected to cruelty by the accused. However, the Sessions Judge's Court without appreciating the evidence in their proper perspective, has disbelieved the second dying declaration at Ex.P.8 and held that there was no sufficient evidence to prove the alleged guilt of the accused, which has resulted it in passing an erroneous judgment. With this, he prayed for allowing the appeal.
10. Per contra, learned counsel for the respondent in his argument submitted that immediately after the incident when the injured was admitted in the hospital, the -8- CRL.A No.274 of 2017 police have recorded her statement which is her first dying declaration. In the said dying declaration, at the earliest point of time, the deceased has stated that being disappointed, she herself has soaked with kerosene oil and put fire to it. As per the doctor, the deceased when was taken to hospital for treatment, has stated that it was she who put fire to herself resulting in she sustaining burn injuries. Thus, the alleged second dying declaration said to have been recorded on the next day creates a serious doubt and shows that the deceased was tutored by her parents and family members. With this, he submitted that the impugned judgment does not warrant any interference at the hands of this Court.
11. After hearing the learned counsels from both sides, the points that arise for our consideration are that:
1) Whether the prosecution has proved beyond reasonable doubt that the accused after his marriage with deceased Smt. Kavitha and till she sustaining burns on 20.09.2014 was subjecting her to both physical and mental cruelty and thereby has committed an offence punishable under Section 498A of IPC?-9- CRL.A No.274 of 2017
2) Whether the prosecution has proved beyond reasonable doubt that the death of Smt. Kavitha which is said to have taken place on 26.09.2014, at 3.45 a.m. was homicidal?
3) Whether the prosecution has proved beyond reasonable doubt that the accused in his house located at Church Street of Swathanthra Nagar, K.R. Puram, Bengaluru, within the limits of complainant - Police Station, on 20.09.2014 at 9.30 p.m. having returned to home by consuming liquor, knowingly and with an intention to kill his wife Smt. Avitha, dowsed her with kerosene and lit fire to her with matchstick, due to which, she sustained burn injuries and succumbed to the same on 26.09.2014 at 3.45 a.m. while under treatment in Victoria Hospital at Bengaluru and thus, having committed the murder of said Smt. Kavitha has committed an offence punishable under Section 302 of IPC?
4) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
12. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offences punishable under Sections 302 , and 498A of IPC. Therefore, the accused has
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CRL.A No.274 of 2017primarily the double benefit. Firstly, the presumption under law that, unless his guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused has already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively
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slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
13. The relationship between the accused - Chinnappa and deceased - Smt. Kavita that they were the husband and wife is not in dispute. The evidences given to that effect by PW-1 (CW-2) Narayanappa father of the deceased, PW-2 (CW-3) Smt. Lakshmidevamma, mother of the deceased, PW-3 (CW-1) Keshavamurthy, elder brother of the deceased, PW-4 (CW-7) Srinivas, PW-6 (CW-9) K.V. Venkatesh, the maternal uncles of deceased, PW-5 (CW-8)
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CRL.A No.274 of 2017Ganapathi, the uncle of the deceased, have not been denied or disputed from the accused side in their cross- examination. Furthermore, PW-1, has also produced before the Investigating Officer, identified and got marked Marriage Invitation Card at Ex.P.1 and two marriage photographs at Exs. P.2 and P.3 respectively. The same further corroborates the evidence of PW-1 that the deceased was married to accused N. Chinnappa on the date 09.11.2011, however, the reception of the marriage was performed one day in advance i.e., on 08.11.2011. Thus, the undenied fact stands reconfirmed that deceased Kavita is the wife of the present respondent Chinnappa, having married to him on 09.11.2011. The contention of the prosecution that deceased died an unnatural death due to burns, which was sustained by her on the date 20.09.2014 and succumbed to the burn injuries on 26.09.2014, while under treatment in Victoria Hospital, Bengaluru, is also not in dispute. PWs - 1, 2, 3, 4, 5 and 6 have uniformly stated that they came to know that deceased sustained burn injuries in her house on 20.09.2014 and was admitted to Victoria Hospital on the
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CRL.A No.274 of 2017same day. These six witnesses visited the injured - Kavitha in the hospital and the said Smt.Kavitha succumbed to the burns on 26.09.2014.
14. Though PW-1 has stated that within two to three days after sustaining burns, Smt.Kavitha died, but, PW-2 stated that she does not remember as to how long injured was in hospital, however, she assumed that she must have been in the hospital for about eight days and succumbed to the injuries. PW-3 stated that his sister Smt.Kavitha was under treatment in the hospital for about five to six days. PW-4, stated that deceased was in hospital for about four to five days. PW-6 stated that deceased was in hospital for five days and then she succumbed to the injuries. Their evidences as to how long the deceased was under
treatment in the hospital has not been specifically denied in their cross-examination.
15. PW-9 (CW-15) Uma D.S., the Women Police Constable at the complainant - Police Station in her evidence has stated that deceased succumbed to the injuries on 26.09.2014 at 3.45 a.m. and she was deputed
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CRL.A No.274 of 2017to watch the said dead body. Accordingly, she was watching the dead body and after its postmortem examination, she handed over the dead body to the family of the deceased.
This witness was not cross-examined from the accused side. As such, the date, time and place of the death of deceased remains undisputed.
16. PW-14 (CW-19) - Melvin Francis, Investigating Officer also has stated that on 26.09.2014, he received a memo from Victoria Hospital reporting the death of injured-Smt. Kavitha. Thus, he obtained permission from the Court to incorporate Section 302 of IPC also in the crime. The witness has identified the said memo said to have been sent to him by the hospital at Ex.P.20. Therefore, the date and time of the death of the deceased as 26.09.2014 at 3.45 a.m. stands established.
17. According to the prosecution, the place of the incident of deceased sustaining burn injuries was her house at Church Street, K.R. Puram, Bengaluru. The accused has
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CRL.A No.274 of 2017not disputed the said place of incident in the cross- examination of any of the witnesses.
PWs -1, 2 and 4 in their evidence have shown that the alleged incident of deceased sustaining burns was in her house, where she and her husband, i.e., accused, were residing together. Thus, in spite of PW-3 stating that he was not present when the Police visited the spot and drew the scene of offence panchanama, the evidence of PWs-1, 2 and 5 shows that the place of incident of deceased sustaining burns was her house at Bengaluru. The say of PW-3 that Police visited the spot and drew the scene of offence panchanama at Ex.P.7 and identified his signature at Ex.P.7(a), is further corroborated by the evidence of PW-14 (CW-19) - Melvin Francis the then Police Sub- Inspector of complainant-Police Station that, he visited the spot and drew the scene of offence panchanama on 23.09.2014 as per Ex.P.7, stands corroborated. The place of incident of fire was the house of Smt.Kavitha, Church Street, K.R. Puram, Bengaluru, stands established.
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CRL.A No.274 of 2017
18. Even though the date and time of death of deceased was proved as 26.09.2014 at 3.45 a.m. at Victoria Hospital, Bengaluru, however, neither PW-14 who received the memo regarding the death of the deceased by the hospital and incorporated Section 302 of IPC in the crime, nor PW-16 (CW-20) Sanjeevarayappa, Police Inspector of the complainant - Police Station, who took up further investigation in the matter from PW-14, have stated about conducting inquest panchanama on the dead body of the deceased. None of the Investigating Officers speak about conducting inquest panchanama in the matter. The inquest panchanama was also not marked as Exhibit in the case for the reasons best known to the prosecution. Therefore, one of the primary and important document, which should have thrown light on the nature of the death of the deceased has remained unavailable for its consideration.
In the absence of inquest panchanama the only other evidence which is available to ascertain the nature of the death of deceased is the evidence of PW-15 (CW-13) Dr. Padeep Kumar M.P., who conducted postmortem
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CRL.A No.274 of 2017examination on the dead body of the deceased and issued the postmortem report at Ex.P.24. PW-15 - the doctor has stated that, he conducted postmortem examination on the dead body of deceased on 26.09.2014, between 7:30 p.m. and 8:30 p.m. and noticed the following external injuries on the dead body:
"Infected burns present over face, neck, in patches over front and back of chest and abdomen, both upper limbs including palms, in patches over both lower limbs excluding soles. Most of the burnt areas show greenish yellow foul smelling pus and slough at places."
He opined that death of the deceased was due to septicemia, as a result of burn injuries sustained. Stating so, the witness has identified the Postmortem Report at Ex.P.24 as the one issued by him. The said observation of PW-15 has not been denied in his cross - examination. As such, the evidence of PWs-1 to 6 that deceased died due to the burns is further corroborated by the medical evidence, which shows that the death of the deceased was unnatural. However, the medical opinion through the evidence of PW- 15 and Ex.P.24 does not say whether the death was accidental, suicidal or homicidal. Therefore, it is once again
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CRL.A No.274 of 2017the oral evidence of prosecution witnesses, coupled with the alleged two dying declarations said to have been given by the deceased, are required to be analysed as to whether the death of the deceased was homicidal and was it a murder committed by none else than the accused.
19. The prosecution mainly depends upon the two dying declarations, one of which, is in the form of a statement, said to have been given by the deceased to PW-13 (CW-18) Sri.Shivashankar, Assistant Sub-Inspector of the complainant - Police Station who visited the Victoria Hospital at the instance of PW-12 (CW-17) Sri.Shivarudrappa the another Assistant Sub-Inspector of the same Police Station on 21.09.2014. The second statement of the deceased is said to have been recorded as dying declaration by the Tahasildar (PW-8/ CW-14) Sri.N. Nagaiah on 22.09.2014.
PW-12 - Shivarudrappa, Assistant Sub-Inspector of the complainant - Police Station in his evidence has stated that while he was on the night duty, on the date 21.09.2014, based upon the telephonic information
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CRL.A No.274 of 2017received from Victoria Hospital about a memo and upon the orders of his Police Sub-Inspector, he sent Sri. Shivashankar, Assistant Sub-Inspector to Victoria Hospital, Bengaluru. At about 3.45 a.m. on that day, the said Shivashankar produced before him a statement of the injured, which he registered in their Station NCR No.1402/2014 and has identified the said statement of injured at Ex.P.18 and his signature as Ex.P.18(c). He identified the memo said to have issued by the hospital at Ex.P.16.
PW-13 - Shivashankar, another Assistant Police Sub-Inspector of the complainant - Police Station in his evidence has stated that on the date 21.09.2014, while he was in the night patrolling duty, based upon a request made by Sri.Shivarudrappa, Assistant Sub-Inspector (PW-12), he went to Victoria Hospital on the same night, received the memo and submitted a request to the doctor to ascertain whether the injured was in a fit condition to give her statement. The doctor examined the patient and endorsed on the memo that patient was in a fit condition to give her statement. It is thereafter, he recorded the
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CRL.A No.274 of 2017statement of the injured and obtained left-hand thumb impression of the injured and also the signature of the doctor and having returned to the Police Station, produced the same before Sri.Shivarudrappa, Assistant Sub- Inspector (PW-12). He has stated that doctor who was present at the time of recording the statement of injured was Dr. Rajareddy. He identified the memo of request given by the doctor at Ex.P.17 and the statement of the injured at Ex.P.18 and the doctor's endorsement thereupon at Ex.P.18(a). However, he has not identified alleged left hand thumb impression of the injured on her alleged statement.
PW-12 - Sri.Shivarudrappa in his evidence has stated that after receiving the statement of the injured, which was produced before him by PW-13 - Sri.Shivashankar, he has registered the same in their Police Station in NCR No.1402/2014. He has also identified said statement of the injured at Ex.P.18.
In the cross-examination of PW-12, as well PW-13, their evidence that Ex.P.18 is the statement given by none else than the deceased while she was under treatment in
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CRL.A No.274 of 2017Victoria Hospital has not been denied. On the other hand, in the cross-examination of PW-13, it was suggested to the witness that the deceased has stated in the statement that she herself has poured kerosene upon her, put fire to it and nobody is responsible for the same. The witness has admitted the said suggestion as true.
20. PW-11(CW-11) Dr. Rajareddy, Senior Specialist at Victoria Hospital, Bengaluru has stated in his evidence that at about 11:20 p.m. on 20.09.2014, the injured with the history of burns came to the Casualty Department of their hospital. When he enquired her about the cause of burns, the injured stated that she poured kerosene upon her and put fire to it and she has sustained burns on her body. He made an entry in that regard and sent the injured to the ward and the memo to the Police. Stating so, he has identified the memo at Ex.P.16.
The said witness has further stated that on 21.09.2014, Sri. Shivashankar, Assistant Sub-Inspector from the complainant - Police Station came to him and gave a request letter as per Ex.P.17 for recording the
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CRL.A No.274 of 2017statement of the injured. He examined the patient and certified on the memo with his signature, which he has identified at Ex.P.17(a). The said Assistant Sub-Inspector recorded the statement of the injured in his presence. On the said statement he has certified and put his signature by writing "before me". Stating so, the witness has identified the said statement of the injured at Ex.P.18 and his signature at Ex.P.18(a).
In his cross-examination from the accused side, except suggesting to the witness that even in the Register maintained by the hospital, it is mentioned that injured put kerosene by herself and lit fire to it and also suggesting to the witness that till the process in Ex.P.17 and Ex.P.18 were completed, he was present there itself, nothing more was elicited. The witness has admitted both the said suggestions as true.
21. The second alleged dying declaration of deceased according to prosecution is said to have recorded by the Tahasildar on the date 22.09.2014. PW-12 Sri.Shivarudrappa, Assistant Sub-Inspector has stated that
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CRL.A No.274 of 2017on 21.09.2014 he submitted a request letter to the Tahasildar as per Ex.P.9 requesting him to record the statement of the injured who was under treatment due to burns. On the same day (22.09.2014), at about 7:30 p.m. Tahasildar visited the Victoria Hospital and recorded the statement of the injured and submitted the same to him, which in turn he produced the said statement of the injured to his Police Sub-Inspector. Stating so, the witness has identified the said statement of the injured at Ex.P.18. In his cross-examination he admitted a suggestion as true that he was not present when the statement of the injured was recorded by the Tahasildar.
PW-8 (CW-14) Sri. N. Nagaiah, Special Tahasildar at K.R. Puram Taluk has stated that, upon the request by the complainant - Police Station as per Ex.P.9 on 22.09.2014 to record the statement of injured Smt.Kavitha, who was at Victoria Hospital, he visited the said hospital at 7:00 p.m. in the evening and met Dr. Varalakshmi, who was Casualty Medical Officer and told her about requirement to record the statement of injured - Kavitha. He also gave her the requisition to verify the fitness of the injured to
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CRL.A No.274 of 2017give statement. The said doctor in his presence examined the injured and confirmed that the patient was in a fit condition to give her statement and is in a position to understand. She endorsed as 'permitted' on the requisition memo given to her. Thereafter, he, in the presence of the doctor, questioned the injured as per the Format and recorded the answer given by the injured. The witness stated that the questions put to her and answer given by the injured which include, when he enquired the injured as to how she sustained burns, in turn, injured stated that her husband now and then used to consume liquor and quarrel with her, stating that he would kill her, he had poured kerosene upon her and lit the fire to it and thus, attempted to kill her. It is thereafter, her husband admitted her to hospital. The witness further stated that, after recording her statement, since all other parts of her body except her leg, had sustained burns and hands were covered with bandage, he took her left toe mark on her statement, which he had identified at Ex.P.8 and identified the left-toe mark of the injured on the said statement, however, the same was not marked as Exhibit. He has identified his
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CRL.A No.274 of 2017signature, as well, that of the signature of the doctor in his further examination-in-chief. He has identified the copy of the requisition said to have been given by him to the doctor at Ex.P.10 and stated that it is of that requisition, on which, the doctor has written as 'permitted'.
In his cross-examination few questions were put about the format of the dying declaration. He expressed his ignorance to the suggestions that the answer given by the injured to the questions put to her were tutored. He denied the suggestions that while he recording the statement of the injured as per Ex.P.8, the relatives of the injured were present and their influence was there upon her.
22. PW-7 (CW-10) Smt. Varalakshmi, Chief Medical Officer at Victoria Hospital, in her evidence has stated that, on the date 22.09.2014, while she was on duty in casualty, she has examined the fitness of the injured at the request of the Tahasildar, who had given a request memo in that regard. After examining the injured, she has stated that injured was in a fit condition to give her statement and permitted to record her statement. Thereafter, the
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CRL.A No.274 of 2017Tahasildar, in her presence put questions to injured, recorded the answers given by the injured. The witness has stated that the injured stated in her statement that her husband poured kerosene and put fire. Stating so, she identified the statement of the injured at Ex.P.8 and her signature at Ex.P.8(a). She also stated that while the Tahasildar was recording the statement of the injured, she alone was with them.
In her cross-examination, she stated that she has not issued any separate Fitness Certificate and denied the suggestion that she was not present while Tahasildar was recording the statement of the injured as per Ex.P.8.
PW-14(CW-19) - Melvin Francis, the Police Sub- Inspector of the complainant - Police Station has stated that on 22.09.2014 at 9:30 p.m., Sri. Shivarudrappa, Assistant Sub-Inspector (PW-12) produced before him a dying declaration of injured, based upon which, he registered it in their Station's Crime No.544/2014, for the offence punishable under Section 307 of IPC and submitted Express Report to his superiors and FIR as per Ex.P.9 to the Court. He has identified the dying declaration at Ex.P.8.
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23. The above evidence of the prosecution witnesses would go to show that there are two dying declarations of deceased. The first dying declaration is said to have been recorded as per Ex.P.18 on 21.09.2014, whereas, the second dying declaration as per Ex.P.8 is said to have been recorded on the next day i.e., on 22.09.2014. In the first dying declaration it is shown that injured Kavitha had stated that she herself dowsed with kerosene and lit fire to it, whereas, in the second dying declaration it is shown that it is her husband i.e., accused who dowsed her with kerosene and put fire to it. The accused has not denied the recording of the dying declaration at Ex.P.18.
24. With respect to second dying declaration, though the accused has not specifically denied the dying declaration recorded by the Tahasildar, however, they suggested to the witness that her statement in second dying declaration was tutored one and that, at the time of recording her second dying declaration, her relatives were
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CRL.A No.274 of 2017present near her, as such, being influenced by them, she has made her statement as per Ex.P.8. In this manner, the accused has not denied that injured was not in a condition to speak and that she has given her statement, otherwise, the accused would not have accepted the alleged statement of the injured at Ex.P.18 and would not have suggested to the Tahasildar that statement given by the injured before him was tutored one. Further, the evidence of PW-11 - Dr. Rajareddy and PW-7 - Varalakshmi corroborates that injured was in a fit condition to give her statement on both the times i.e., on 21.09.2014 and on 22.09.2014, when her statement as per Ex.P.18 and Ex.P.8 respectively were recorded. Thus, there are two dying declarations before the Court to analyse.
25. Our Hon'ble Apex Court in Purshottam Chopra and Another Vs. State (Government of NCT of Delhi) reported in (2020) 11 SCC 489 was pleased to summarise the principles relating to recording of dying declaration and its admissibility and reliability which are as follows:
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(1) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.
(2) The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
(3) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
(4) When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.
(5) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.
(6) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration, but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
(7) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
(8) If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.
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CRL.A No.274 of 2017In the case, where there are multiple dying declarations and in the earlier dying declaration accused is not sought to be roped in, but, in the later dying declaration, a somersault is made by the deceased, as in the case on hand, recording its appreciation the Hon'ble Apex Court was pleased to observe in Jagbir Singh Vs. State (NCT of Delhi) reported in (2019) 8 SCC 779, that the case must be decided on the facts of each case, the court will not be relieved of its duty to carefully examine the entirety of materials, as also, the circumstances surrounding the making of different dying declarations. It is the compatibility with the remaining evidence/circumstantial evidence, that will be vital in determining which dying declarations are to be believed. It is, keeping the above principles in mind, the two dying declarations at Ex.P.18 and Ex.P.8 are required to be analysed.
26. As observed above, the prosecution could able to show that the injured was in a fit condition to give her statement while recording both the statements at Ex.P.18
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CRL.A No.274 of 2017and Ex.P.8 respectively, shown to be recorded in the presence of the medical doctor and after the injured getting examined by the doctor about her fitness to give statement. The first dying declaration at Ex.P.18 is recorded by the Assistant Sub-Inspector of Police and second dying declaration at Ex.P.8 is recorded by the Special Tahasildar. The first dying declaration at Ex.P.18 is in the form of a continuous statement given by the injured, whereas, the second dying declaration at Ex.P.8 is in the form of questions and answers. Merely because the first dying declaration is said to have been recorded by the police officer and not in a formatised manner, the same cannot be discarded. Further, PW-13 - Assistant Sub- Inspector of the complainant - Police Station has stated that he recorded the first statement of the injured as per Ex.P.18 and after recording her statement as per Ex.P.18, he obtained left hand thumb mark of the injured on her statement, however, the witness has not stated in his evidence that he is seeing the said left hand thumb mark of the injured in Ex.P.18 and has not got marked the said thumb mark as Exhibit, though the impression/mark
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CRL.A No.274 of 2017was found in the document. On the other hand, PW-8 - Tahasildar has stated that, since the entire portion of the body, except her leg, were burnt and hands were covered with bandages, he took her left toe impression on her statement at Ex.P.8. He has also stated that he is seeing the left toe mark at Ex.P.8.
PW-15 (CW-13) Dr. Pradeep Kumar who conducted postmortem examination on the dead body of the deceased, in his evidence has stated that the deceased had sustained burns on her face, neck, front side of the chest, on her back portion, front side of abdomen, both the hands and some portion of both the legs, including both foot. Even in the postmortem report at Ex.P.24, he has mentioned the same. Therefore, the evidence of PW-15- doctor corroborates with the evidence of PW-8 -Tahasildar that deceased had sustained injuries on entire portion of her body and both the hands, excluding legs. Further, his evidence that the injured had sustained burns on both the hands and they were covered with bandage has not been denied in his cross-examination. In such a case, when injured was found sustained burns on both the hands, it
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CRL.A No.274 of 2017becomes doubtful as to how come PW-13 - Assistant Sub- Inspector could get left thumb impression at Ex.P.18, which creates a doubt about the correctness of the statement shown to have been made by the injured as per Ex.P.8. No doubt, PW-11 the doctor, has stated that injured stated that she dowsed herself with kerosene and lit fire to it, however PW-17, the Casualty Medical Officer, has also stated that it was in her presence the Tahasildar has recorded the dying declaration of the injured and injured has stated that it was her husband who dowsed her with kerosene and lit fire to it. The said Tahasildar PW-8 has denied the suggestion that at the time of he recording the dying declaration of injured, her relatives were there with her and that she was under their influence. Therefore, when both the dying declarations are shown to have been recorded by the responsible officers, that too, after getting the injured medically examined about her fitness to give statement and contents of the statements also have corroborated, then, it is not safe to chose either of them as only believable dying declaration in the case. Under this
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CRL.A No.274 of 2017circumstance, the other evidence available is required to be analysed.
26. The other evidence regarding the manner of deceased sustaining burns in her house is about oral dying declaration made before her relatives and other persons, who were said to have visited her while she was in hospital. In that regard, the prosecution has relied upon evidences of PWs-1, 2, 4, 5 and 6.
PWs 1 to 6 in their evidence have stated that all of them visited the deceased in the hospital while she was in burns ward and collected the details about the incident which resulted in deceased sustaining burns, from the mouth of the injured (later deceased). PWs-1 and 2 the parents of the deceased, PWs-4 and 5 the maternal uncles of the deceased, PW-5 the uncle of the deceased, have uniformly stated in their evidence that the deceased told them that it was her husband i.e., accused, who dowsed her with kerosene and lit fire to it. PW-1 stated that his daughter Kavitha told him that accused after pouring kerosene upon her and lighting fire to it, took their child
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CRL.A No.274 of 2017with him and left the house by closing the door from outside. However, he came again, put-off the fire with the help of neighbours and with their help, shifted her to the hospital.
PW-2 did not speak in that aspect in her evidence. She has only stated that, at the time of incident, the deceased was mother of a boy child and was a pregnant of eight months, however, the postmortem report does not speak about the pregnancy of the deceased. PWs-4, 5 and 6 have stated that at their enquiry the deceased told them in the hospital that it was the accused who poured kerosene upon her and lit fire to it. However, none of these witnesses stated as to who shifted her to the hospital. Thus, from the evidences of PWs-1, 2, 3, 4, 5 and 6, it can be inferred that the claim that it was the deceased who told that it was her husband who poured kerosene upon her and lit fire to it. However according to PW-1, the father of the deceased, it is the very same accused who put-off the fire and shifted her to hospital with the help of the neighbours. According to him, the said statement also was made to him by none else than the deceased herself. Therefore, if, according to PW-1, deceased told him that it
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CRL.A No.274 of 2017was the accused who put off the fire and shifted her to the hospital, then, the same makes it clear that accused did not have any intention of killing his wife, on the other hand, he made efforts to rescue her.
27. On the contrary, PW-3 the elder brother of the deceased has stated that when enquired about the cause of his sister Kavitha sustaining burns, she told him that since the accused was in the habit of consuming liquor and was quarrelling with her, she herself dowsed with kerosene and lit fire to it. This witness nowhere has whispered that it was the accused who poured kerosene upon his sister Kavitha and lit fire to it. Since the prosecution was expected him to say that it was the accused who poured kerosene upon the deceased, the witness was treated as hostile. The prosecution was permitted to cross-examine him, however, in his cross-examination also the witness did not support the case of the prosecution. He denied the suggestion that deceased told to him that it was her husband who poured kerosene upon her and lit fire to it.
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CRL.A No.274 of 2017Therefore, though on one hand parents of the deceased say that deceased told them that it was her husband who poured kerosene upon her and put fire to it, however, the elder brother of the deceased says that, it was a self- immolation as told by the very same deceased. Thus, according to the very same family members, there are two contrary views as to the cause of deceased sustaining burns.
28. In the above circumstance, the evidence of PW- 11 - the doctor, who had first attended the deceased, when she was brought to the casualty of Victoria Hospital with the history of burns, is of great significance.
The said witness has stated that, he enquired the injured Kavitha about the cause of burns for which she stated that, it was herself, who poured kerosene upon her and put fire to it. Thus, according to the doctor, who also claims to have heard from the mouth of none else than the injured, it was the deceased who herself poured kerosene upon her and put fire to it.
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CRL.A No.274 of 2017Even though PW-7 -Varalakshmi Casualty Medical Officer has stated that in her statement before the Tahasildar, injured Kavitha stated that it was her husband who poured kerosene upon her, but, the said statement was on the second day of alleged incident of burn, that too, after the parents and relatives of the deceased had met and talked with the injured in the hospital. Whereas, the enquiry of PW-11, the doctor, with the injured was within the hours after the incident that took place on the date 20.09.2014.
Thus, at the earliest point of time, the injured is said to have stated before none else than the doctor, who enquired about history of burns, as self-immolation. Further, her first statement after the incident at Ex.P.18, which was also recorded in the presence of doctor, also mentions that the injured stated that it was herself who poured kerosene upon her and put fire to it. Therefore, when at the first instance, the injured is said to have stated that it was she who poured kerosene upon her and put fire to it, both before the doctor as well before the police and even the elder brother of the deceased also says
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CRL.A No.274 of 2017that his injured sister told him that it was herself who poured kerosene upon her and put fire to it, her subsequent statement made before her parents and uncles and also before Tahasildar as per Ex.P.8 creates some doubt in the mind of the Court. When injured was not visited by any of her relatives is shown to have stated that it was herself who poured kerosene upon her and put fire to it, however, later, after she was visited by her paternal family members and relatives has changed her version, then, it is not safe to rely upon her second alleged dying declaration at Ex.P.8 and hold that it was the accused who poured kerosene upon her and put fire to it. As such, when the accused is already enjoying the benefit of acquittal, and has got a double presumption of his innocence in this appeal, it is not safe to rely upon Ex.P.8 ignoring similarly standing dying declaration at Ex.P.18 and to conclude that it was the accused who caused the death of his wife. Therefore, it has to be held that the prosecution could not able to prove that it was the accused who poured kerosene upon his wife Kavitha, put fire to it, inflicting burns upon her, due to which, she succumbed to injuries in the
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CRL.A No.274 of 2017hospital and thus, has committed the homicidal death of his wife Kavitha.
Thus, the death of deceased though proved to be an unnatural death, however, there is no evidence to hold that it is a homicide, as such, there is no evidence to hold that it was the accused who caused the death of deceased. As such, we find no reason to interfere in the finding of the Sessions Judge's Court in acquitting the accused of the offence punishable under Section 302 of IPC.
29. The prosecution has also alleged that accused was subjecting his wife Kavitha to cruelty. The other charge leveled against the accused is the offence punishable under Section 498A of IPC. It is nobody's case that prior to the death of his wife, accused was demanding her or coercing her to bring money or any property and valuable security from her parents. On the other hand, it is the case of the prosecution that the accused was subjecting the deceased to cruelty and was assaulting her under the influence of liquor, for which, he was addicted to. PW-1 though has stated that accused was complaining
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CRL.A No.274 of 2017that the money given to him during the marriage was insufficient and was pestering his wife to get some money, however, the same was not the case of the prosecution and other witnesses of the prosecution have not complained that the accused was demanding any money or valuable to be brought by his wife from her parents.
30. PWs-1, 2, 3, 4, 5 and 6 have all stated in their evidence that accused while living with his wife Kavitha at Bengaluru, developed the habit of consuming liquor and he used to quarrel with his wife and both of them were quarreling. In that regard, they had advised the accused. Even though, all these witnesses have stated that accused was consuming liquor and was quarreling with is wife, however, none of those witnesses have given any instance of such quarrel or the accused assaulting his wife and subjecting her to cruelty. Mere the husband and wife quarreling cannot be considered as cruelty meted to the wife. In fact, PW-3 has stated that it was not the just accused alone who was quarreling with his wife, but, it was both the accused and deceased were quarreling with each
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CRL.A No.274 of 2017other. Thus, from none else than the very elder brother of the deceased, it was elicited that the quarrel alleged was, not taking place only unilaterally from the side of the accused, but ,the reciprocity of his sister i.e., deceased was also there. Moreover, as observed above, none of the witnesses have given any instance of the alleged cruelty said to have been meted by the accused to the deceased. If there were any repetitive acts of cruelty practiced by the accused upon the deceased, then, atleast any one of these witnesses, who were none else than the parents, family members and close relatives of the deceased, could have given any such instance of cruelty for which they were the witnesses. However, except their statement that they heard from the deceased that she was subjected to ill-treatment by her husband, who was in the habit of drinking, no further evidence has been given by any of these witnesses. As such, in the absence of any convincing evidence in that regard, it is not safe to hold that the prosecution has proved the alleged guilt of cruelty against the accused. As such also, the fact that the finding of the Sessions Judge's Court that the prosecution failed to prove the alleged guilt against the accused
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CRL.A No.274 of 2017for the offence punishable under Section 498 A of IPC, cannot be found fault with. For these reasonings, we do not find any reason to interfere in the impugned judgment of the acquittal.
Accordingly, we proceed to pass the following order.
ORDER The Criminal Appeal filed by appellant/State stands dismissed as devoid of merits.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately for their needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE BVK