Karnataka High Court
Yogesh vs State Of Karnataka on 14 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14th DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.653/2014
BETWEEN:
Yogesh
S/o late Rangappa
Aged about 25 years
R/at 3rd Cross, 8th Main
Akkiyappa Garden,
Mohan Kumar Nagar
Yeshwanthpura
Bangalore-560 022.
... Appellant
(By Smt. S. Taj, Advocate)
AND:
State of Karnataka
by Yeshwanthpura Police
Yeshwanthpura
Bangalore-560 022.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
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This Criminal Appeal is filed under Section 374(2) of
the Cr.P.C praying to set aside the order dated
20.03.2014 passed by the Presiding Officer, Fast Track
Court-X, Bangalore City, in S.C.No.645/2010 Convicting
the appellant/accused for the offence punishable under
Section 302 of Indian Penal Code.
This Criminal Appeal coming on for final hearing this
day, B.A.PATIL., J. delivered the following:-
JUDGMENT
This appeal is filed by the accused challenging the judgment and order of conviction and sentence dated 20/21.3.2014 passed in SC.No.645/2010 by the Fast Track Court-X at Bangalore City.
2. The genesis of the case of the prosecution is that deceased Smt.Netravathi, wife of the accused gave a statement before PW.20-Chandrappa in Victoria Hospital that she was residing with her husband in a rented house and she was working as a tailor at Bhanu Garments, Muniswaranagar. Her husband Yogesh is a lorry driver. Their marriage was performed one year two months' back and they had no children. After their marriage, -3- they led happy married life for about one month and thereafter her husband Yogesh started demanding dowry as she did not bring any dowry during their marriage and also used to ill-treat and harass her both mentally and physically. The said facts were brought to the notice of her parents also. Thereafter her parents by holding panchayat advised the accused Yogesh, but in spite of giving one gold chain and cash of Rs.1,00,000/-, he sold her gold chain and spent the amount. He also sold mangalya chain, leg chain and one bangle (kadaga) of the deceased Netravathi. Thereafter, her parents by giving an advance amount, made a separate rented house and her father used to pay the rent. She further stated that on 2.1.2010 at about 8.30 p.m. when she was in the house, her husband Yogesh came and told that the marriage of sister of Yogesh has been fixed and marriage talks have been concluded and the marriage has to be performed. As the parents of the deceased Netravathi have not given any dowry, accused asked her -4- to give Rs.3,00,000/- and also ill-treated her. She told that already her parents have helped them a lot and as they are poor they are not in a position to give money, for which, accused by saying that she was giving opposite answers and if she is finished he can marry another woman and by saying so, he took the kerosene from the kerosene stove, took the same into a vessel and poured on Netravathi and by saying that she should die, he lit the fire and ran away from the place. Due to the said act of the accused, she made hue and cry and immediately the neighbourers and police came and extinguished the fire. Thereafter, she was shifted to Victoria Hospital for treatment. She has further stated that her husband Yagesh, because of dowry ill-treated her both physically and mentally and by pouring the kerosene lit fire with an intention to kill her. Hence, she prayed for appropriate action against him. On the basis of the aforesaid statement brought by PW.20, a case was registered in Crime No.4/2010 for the offences -5- punishable under Sections 498A, 307 of IPC and 3 and 4 of Dowry Prohibition Act. Since subsequently the injured succumbed to the burn injury Investigating Officer filed memo to include Section 302 or 304-B of IPC. The same was included in the charge sheet.
3. The Investigating Officer after completion of investigation laid the charge sheet against the accused. The learned Magistrate after following the procedure committed the case to the Court of Sessions. The Sessions Court took the cognizance by securing the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused framed the charge for the offence punishable under Section 302 of IPC and alternatively under Section 304B of IPC. The accused pleaded not guilty and claimed to be tried, as such trial was fixed.
4. In order to prove its case, the prosecution in all has examined 32 witnesses and got marked 36 Exhibits -6- and also six Material Objects. After closure of the prosecution evidence as contemplated under law, the statement of the accused came to be recorded in the form of questionnaire. Accused denied the incriminating materials and has not led any evidence on his behalf. After hearing both parties, the accused was convicted and sentenced to undergo RI for life and to pay fine of Rs.5,000/-, in default of payment of fine, to undergo SI for six months for the offence punishable under Section 302 of IPC. Assailing the same, accused is before this Court.
5. The learned counsel Smt.S.Taj, appearing for the appellant-accused apart from the grounds urged in the appeal memo, submitted that the complaint at Ex.P20 cannot be treated as a dying declaration. The doctor has also not properly mentioned the mental and physical fitness of the patient to give the statement. She further submitted that the said statement is also hit by Section -7- 162 of Cr.P.C. She further submitted that the alleged incident has taken place on 2.1.2010 at about 8.30 p.m. but the statement of the victim has been recorded on 3.1.2010 at about 11.45 a.m. Hence, there is a delay in recording such statement. She further submitted that the said dying declaration is not in the question and answer form and it is in the form of narration and as such the same cannot be considered to be a dying declaration. She further submitted that if at all the victim was intending to give dying declaration or the statement, the same should have been recorded by the duty doctor. She further submitted that the said statement has not been recorded by the Magistrate or Taluka Executive Magistrate and no proper explanation is given as to why those persons have not recorded the statement of the deceased. She further submitted that the said statement has been recorded in the presence of parents of the victim, there is every possibility of she being tutored by them. In that light, the said statement -8- is not admissible. She further submitted that though the accused has taken up the plea of alibi, the same has not been considered. Though there is material to show that the step mother of the accused used to harass the victim, only to implicate the accused, a false complaint has been lodged. She further submitted that though the parents of the victim were present, they did not file any complaint. Though dying declaration was recorded as per Ex.P20, when the parents were present and the said dying declaration appears to be recorded after much delay, under such circumstances, the credibility of the said dying declaration has to be looked into by the Court before relying upon such dying declaration. In order to substantiate her contention, she relied upon a decision of the Hon'ble Apex Court in the case of Nallabothu Ramulu @ Seetharamaiah & others Vs. State of Andhra Pradesh, reported in (2014) 12 SCC 261. She further submitted that the trial Court without proper appreciation of the evidence and as there was no worth -9- believable material against the accused, has wrongly convicted the accused. Hence, she prayed that the impugned judgment and order is liable to be set aside by allowing the appeal.
6. Per contra, the learned Additional SPP Sri Vijayakumar Majage, appearing for the respondent-State submitted that the doctor-PW.18 has clearly deposed that the deceased was in a fit state of mind and PW.20 has recorded the dying declaration at Ex.P20 after ascertaining the mental condition of the deceased. Under such circumstances, the same can be relied upon by the prosecution. He further submitted that Section 162(1) of Cr.P.C. is not applicable since there is an exception to it under Section 162(2) of Cr.P.C. regarding the dying declaration. He further submitted that without further delay, the said dying declaration has been recorded by PW.20 and no good grounds have been made out to falsify the said document. He further
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submitted that there is ample material to show that the accused ill-treated and harassed the deceased and by saying that he would marry another woman, by taking the kerosene from the kerosene stove and by pouring the same on the deceased lit the fire which itself clearly goes to show that accused with an intention to cause the death of the deceased has committed the alleged offence. The trial Court after considering the oral and documentary evidence, has rightly come to the conclusion that accused has committed the alleged offence and hence the accused-appellant has not made out any good grounds so as to interfere with the impugned judgment and order. Therefore, he submitted that appeal being devoid of merits, is liable to be dismissed.
7. It is the case of the prosecution that the accused used to ill-treat and harass the deceased by demanding dowry as his sister's marriage was fixed and as she did not bring any dowry during their marriage. Though
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PWs.1 and 2 have deposed regarding the ill-treatment and harassment by the accused for demand of dowry, there is no sufficient material to substantiate the said fact. Even the trial Court has also not framed any charge against the accused for the offence punishable under Section 498A of IPC. In that light, we are of the opinion that it is not necessary for us to discuss on the ill- treatment and harassment for dowry.
8. It is the case of the prosecution that on 2.1.2010 at about 8.30 p.m. when the deceased Netravathi was in the house, accused demanded for dowry and when she told that her parents are poor and not in a position to fulfill the demand of the accused, by uttering that he would kill her and would marry another woman, accused took kerosene from the kerosene stove into a vessel, poured on the deceased and lit fire, as a result of the same, deceased sustained injuries. Immediately, after hearing the hue and cry of the deceased, neighbourers
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and police came and extinguished the fire. Thereafter, the deceased was shifted to Victoria Hospital for treatment. When she was in the hospital, the Head Constable-PW.20 recorded her dying declaration as per Ex.P20. Whether the prosecution has proved the said document at Ex.P20 or not is the question to be decided by us in this appeal. In order to verify the same, it is just and proper to look the evidence of PW.20, who has deposed that on 3.1.2010, the Sub-Inspector of Police, attached to Yeshwanthpur Police Station instructed him to go to Victoria Hospital and bring the intimation memo regarding the victim, who sustained burn injuries. Accordingly, he went to Victoria Hospital and visited OPD and took the memo. Thereafter he met Dr.Ramesh and asked whether the injured Netravathi was in a fit state of mind to give the statement. The doctor gave consent and he went to the Ward where the injured was taking treatment. PW.20 saw the injured with burn injuries. When he asked deceased, she told that her husband
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(accused) poured kerosene on her and lit fire and when he asked as to why he has done so, she told that the marriage of her husband's sister has been fixed and he insisted her to bring cash of Rs.3,00,000/- as dowry from her father for which she replied that they are poor and not in a position to fulfill his demand. She has also stated that the accused used to ill-treat and harass her. Accused told that he would kill her and marry another woman. There was exchange of words between the couple and at that time, accused by pouring kerosene on her, lit fire and ran away from the place. When she made hue and cry, neighbourers and police came and got her admitted to the hospital. During the course of cross- examination of PW.20, it has been elicited that at the time of recording Ex.p20, he was in uniform and other suggestions have been denied. It has also been elicited that he was not having any difficulty to record the dying declaration in question and answer form. He has admitted that after going to the Police Station he did not
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inform the Investigating Officer that the statement must be recorded by the Magistrate. It has also been elicited that he has not specifically mentioned in Ex.P20 that it is the LTM of the deceased Netravathi. Except this, nothing has been elicited from the mouth of this witness.
9. It is further seen from the evidence of PW.20, the Head Constable who recorded the dying declaration at Ex.P20 and on perusal of the same there is corroboration in the evidence of this witness. It is not in dispute that the deceased Netravathi sustained burn injuries and was got admitted to Victoria Hospital. Even on Ex.P20, Dr.Ramesh has made an endorsement to the effect that the patient is conscious, oriented, physically and mentally fit to give the statement. The said endorsement also corroborates the evidence of PW.20 who has deposed that he went and met Dr.Ramesh and asked as to whether the injured Netravathi was in a position to give statement and doctor also accompanied
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him and after observing the patient, he gave his consent to record the statement. Thereafter PW.20 has recorded the said statement. In this behalf, the condition of the patient who was in a fit state of mind to give such statement has been established by the prosecution. No doubt it is true that certification of the doctor is only a rule of caution and without the certificate or endorsement of the doctor if the dying declaration is otherwise trustworthy and reliable, the Court can rely upon the same to bring home the guilt of the accused. Even as could be seen from the evidence of PW.18-Dr.Ramesh who has deposed that when he was on duty on 3.1.2010, at about 11.45 a.m., HC-4021 of Yeshwanthpura Police Station came to record the statement of the deceased Netravathi and asked whether the deceased was fit to give statement. He endorsed to the effect that deceased Netravathi is conscious and mentally fit to give statement and thereafter police recorded her statement as per Ex.P20 and at that time, he was also present. PW.18
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further deposed that he has also made an endorsement as per Ex.P20(b) and made his signature at Ex.P20(c). During the course of his cross-examination nothing has been elicited so as to discard his evidence. The evidence of this witness also supports the case of the prosecution regarding the deceased Netravathi giving dying declaration to the effect that the accused poured kerosene on her and lit fire and as a result of the same, she sustained burn injuries. Even the statement given by the deceased before the doctor-PW.18 who was present there also amounts to oral dying declaration and there are no good grounds to reject the evidence of PWs.18 and 20 so also Ex.P20.
10. Learned counsel for the appellant-accused contended that no intimation has been given to the Magistrate to record the dying declaration and no reasons have been assigned for having not sent the requisition to the Magistrate to record the statement of
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the deceased. No doubt while recording the dying declaration better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to, but the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. The Court can rely upon the said dying declaration if it reposes confidence that there is no concoction of such document. Even no such circumstances were brought on record to suspect the bona fides of PWs.18 and 20 and even there is nothing to show that they were interested in fabricating the case against the accused. On careful perusal of Ex.P20 and the cross-examination of the witnesses, no such material has been brought so as to doubt Ex.P20. In this behalf, during the course of cross-examination, nothing has been elicited from the mouth of PW.20. In that light, the contention of the learned counsel for the appellant is not acceptable and the same is rejected.
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11. The next contention of the learned counsel for the appellant-accused is that Ex.P20 is hit by Section 162 of Cr.P.C. It is also the contention of the learned counsel for the appellant-accused that the statement made by a person to a police officer in the course of investigation if it is reduced into writing be signed by the person making it but as could be seen from Section 162(2) of Cr.P.C., it is an exception to the first rule wherein it has been observed that nothing in this Section shall be deemed to apply to any statement falling within the provision of clause (1) of Section 32 of the Indian Evidence Act ('Act' for short) or affects the provisions of Section 27 of the Act.
12. It is the contention of the learned counsel for the appellant-accused that PW.20 has recorded the statement of the deceased as per Ex.P20 and the same was handed over to PW.24 at about 1.15 p.m., but the FIR has been received by the jurisdictional Magistrate on
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3.1.2010 at about 10.00 p.m. and hence there is a delay in submitting the FIR to the jurisdictional Court. As could be seen from the evidence of PW.22-Shivanand, who has deposed that FIR was entrusted to him to give it to I Additional CMM and accordingly he took and delivered and has given report as per Ex.P23. During the course of his cross-examination, it has been elicited the FIR has been delivered in the house of Magistrate and the distance between the Police Station and the house of the Magistrate is 8 kms. and he went by BMTC bus by changing three buses. In this behalf, during the course of cross-examination itself, explanation has been given as to why it has been delivered in the residence of jurisdictional Magistrate. During the course of cross- examination, nothing has been elicited as to what time the documents have been entrusted to him to deliver to the jurisdictional Magistrate. In the absence of the said material, it cannot be held that there is a delay in submitting the FIR to the jurisdictional Magistrate. Be
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that as it may, even as could be seen from the records there is nothing to suggest that some other person has committed the offence and the accused has been falsely implicated in collusion with the police.
13. The next contention taken up by the appellant's counsel is that the dying declaration is not in the question and answer form and it is in narration. As could be seen from the evidence of PW.1, the father of the deceased, PW.2, step mother of the deceased, who have deposed that the accused used to ill-treat and harass the deceased for demand of dowry and they received a phone call from the owner of the house that the accused by pouring the kerosene lit fire and the deceased has been admitted in the hospital and they came at about 4.00 a.m. to Victoria hospital and at that time, deceased had narrated what all happened on the previous night. PW.1 has deposed that his daughter by weeping told that at about 8.00 p.m., by pouring kerosene accused lit fire,
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which itself can be considered to be an oral dying declaration of the deceased. No doubt, Ex.P20 is in narration, but it is not mandatory in law that the dying declaration must be in question and answer form. Very often, the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form, in fact such a statement is more natural and gives the version of the incident as it has been perceived by the victim. This proposition of law has been laid down by the Hon'ble Apex Court in the case of State of Karnataka Vs. Shariff reported in AIR 2003 SC 1074, wherein at paragraph-22, it has been observed as under:-
"22. The other reason given by the High Court is that the dying declaration was not in question-answer form. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and gives the version of the
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incident as it has been perceived by the victim. The question whether a dying declaration which has not been recorded in question-answer form can be accepted in evidence or not has been considered by this Court on several occasions. In Ram Bihari Yadav v.State of Bihar & Ors., (1998)4SCC 517, it was held as follows:
"It cannot be said that unless the dying declaration is in question-answer form, it could not be accepted. Having regard to the sanctity attached to a dying declaration as it comes from the mouth of a dying person though, unlike the principle of English law he need not be under apprehension of death. It should be in the actual words of the maker of the declaration. Generally, the dying declaration ought to be recorded in the form of questions and answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question-answer form cannot be a ground against its
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acceptability or reliability. The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon...."
14. By keeping in view the principle laid down and on perusal of Ex.P20, it appears that recording of dying declaration by PW.20 is worth believable and there is no iota of doubt so as to falsely implicate the accused by creating the said document. It has been suggested to PW.20 that when he was recording the dying declaration, parents of the deceased were encouraging her to give the said statement, but the said suggestion has been denied by PW.20. In that light, the contention that the deceased was tutored by her parents while recording the dying declaration, cannot be accepted. Though the learned
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counsel for the appellant-accused has relied upon the decision of the Hon'ble apex Court in Nallabothu Ramulu @ Seetharamaiah's Case (cited supra), the said decision is not applicable to the factual matrix of the present case, since no material has been produced to show that Ex.p20 has been recorded after much deliberation.
15. The next contention of the appellant's counsel is that the accused has taken up a plea of alibi and the same has not been considered by the trial Court. It is well settled principle of law that when once the accused takes up a defence of alibi, then the burden lies upon him to prove the same. In the statement of the accused recorded under Section 313 of Cr.P.C. he has taken up the defence that on the date of incident, he was on duty to attend his work as a driver. But neither he has examined any witness nor produced any documents to substantiate his say. In that light, it is observed that if a
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plea of alibi is taken by the accused and if he fails to prove the same, the case of the prosecution stands proved.
16. We have carefully and cautiously perused the evidence of other witnesses. In the case on hand, PW.3 pancha to spot mahazar; PW.5, the owner of the house, PWs.6, 15 to 17 and 26 to 31 who have not supported the case of the prosecution though they have deposed regarding ill-treatment caused by the accused as against the deceased. The remaining witnesses are official witnesses who have helped for investigation of the case. Though other witnesses have turned hostile, the prosecution has proved that the deceased has given the dying declaration as per Ex.P20 and the same is worth believable. It is well settled principle of law that the Court can rely upon the dying declaration alone if it reposes the confidence of the Court to convict the accused. Keeping in view the aforesaid discussion, after
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re-appreciation of the entire evidence on record, we are of the considered opinion that the judgment and order passed by the trial Court does not suffer from any infirmity either legal or factual and the same is liable to be confirmed.
In view of the above, we find no merit in this appeal. Accordingly, being devoid of merits, the appeal stands dismissed.
Consequently, I.A.No.1/2017 is disposed of as it does not survive for consideration.
Sd/-
JUDGE Sd/-
JUDGE *ck/-