Karnataka High Court
Shivanand Vithal Ambaljeri vs The State Of Karnataka,Rep By Its Public on 20 June, 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.2850 OF 2010
BETWEEN
SHIVANAND VITHAL AMBALJERI
AGE : 40 YEARS, OCC:AGRICULTURE
R/O.YADWAD, TQ:GOKAK, DIST:BELGAUM
... APPELLANT
(BY SRI.M.L.VANTI FOR SRI.VINAY S KOUJALAGI, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH KULGOD POLICE STATION
REPD. BY ITS PUBLIC PROSECUTOR
... RESPONDENT
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF
CONVICTION AND SENTENCE DATED 15.10.2010 PASSED
BY THE V-ADDITIONAL SESSIONS JUDGE, BELGAUM, IN
S.C.NO.285/2009 AND SET THE ACCUSED/APPELLANT AT
LIBERTY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
:2:
JUDGEMENT
The present appeal has been preferred by the appellant-accused assailing the judgment of conviction and sentence passed by the V-Additional Sessions Judge, Belgaum in S.C.No.285/2009 dated 15.10.2010, where under the appellant-accused was convicted and sentenced under Section 498(A) and 306 of IPC.
2. Heard the learned counsel for the appellant and learned HCGP for respondent-State.
3. Before going to consider the submissions, it is necessary to consider the facts of the case. It is the case of the prosecution that the wife of the appellant- accused got married with the accused, about 11 years back and she had begotten 5 children. Thereafter, appellant-accused started ill treating and harassing by consuming the alcohol and used to assault her on the ground that she is unable to work properly. It is further alleged that the local persons advised accused on :3: several occasions, there was no improvement. In that light on 19.04.2019 her mother Boravva had come to Yadawad to see her daughter casually. In the morning hours as usual deceased had gone to the land with labours and returned back to home at 2.00 p.m. At about 7.00 p.m. accused came by consuming the alcohol and started abusing the deceased in a filthy language and he asked the deceased, why she has not tied the paper cuttings (Paraparaki) and by saying so, he assaulted her with stick. At that time, the mother of the deceased intervened and rescued her daughter. Accused abused the mother-in-law, parents of the accused pacified the incident and took out their son out of the house. Because of the said incident, deceased being fed up with the life went into the kitchen room wherein poured kerosene over her body and set ablaze to herself. Immediately, her mother-in-law, father-in- law, mother and her husband rushed into the kitchen room and doused the fire and she was shifted to District :4: Hospital, Belgaum. She succumbed to the burn injuries on 24.04.2009. When she was in hospital her statement was recorded and the case has been registered and after investigation, the charge sheet was laid as against the appellant-accused.
4. After following the provisions of Section 207 of the IPC the learned Magistrate has committed the case to the Sessions Court. The Sessions Court took cognizance and after hearing the public prosecutor and learned counsel for the accused, he prepared the charge, read over and explained to the appellant accused. Appellant-accused pleaded not guilty. On hearing the submission from both the sides, Sessions Court comes to the conclusion that there are sufficient grounds to prove that the accused person has committed offence. In order to prove the case of prosecution, prosecution has got examined 19 witnesses as PW1 to PW19 and got marked Ex.P.1 to Ex.P.35 documents and further got identified seven material :5: objects. After closure of the evidence of the prosecution, accused was came to be examined under Section 313 of Cr.P.C. During the course of cross examination, the portion of the complaint was got marked as Ex.D1. Accused has not led any evidence on his behalf. After hearing the learned counsel, the impugned judgment of conviction and order of sentence passed. Challenging the illegality and order of sentence, the appellant- accused is before this Court.
5. It is the submission of the learned counsel for the appellant-accused that the material witnesses who were present at the time of alleged incident have not supported the case of the prosecution and they have been treated as hostile. Though, they have not supported the Court below by relying upon the Ex.P20 and Ex.P.33(C) has wrongly convicted the appellant- accused. It is his further contention that Ex.P.33(C) is a dying declaration recorded by PW18-Tahasildar, on the basis of the requisition sent by the Police. Ex.P34 is the :6: Police requisition sent to PW18. The said requisition has been received by the Tahasildar only at 2.20 p.m. on 20.04.2009. But the endorsement given by the doctor on the top of the Ex.P.33(C) discloses that the fitness certificate has been issued by the Casualty Medical Officer at about 00.40 a.m. that itself creates doubt in the case of the prosecution that the said dying declaration has been concocted and created only to suit the case. It is his further submission that Ex.P.20 is the statement of the victim and on the basis of the same, complaint has been registered. Therein the said statement contains the left hand thumb impression of the deceased. But, Ex.P33 shows that instead of the left hand thumb impression the impression of big toe of left leg has been taken. If the hand is burnt and if she is unable to give the left thumb impression, then under such circumstances, question of taking the left hand thumb impression of the deceased on Ex.P20 itself is overruled and in that light Ex.P.20 is also a doubtful :7: one to show that it is her statement and she has given the thumb impression as per Ex.P20 (a). When the said dying declarations said to have been recorded is doubtful, then under such circumstances, the Court below ought to have given the benefit of doubt to the accused. On these grounds he prays to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
6. Per contra, the learned HCGP vehemently argued and submitted that Ex.P.20 is the first declaration given by the deceased and immediately thereafter the case has been registered and immediately on the same day at 10.30 a.m. FIR has been sent to the jurisdictional Magistrate that itself clearly goes to show that the declaration can be relied upon by the Court as dying declaration, wherein she has categorically stated how the incident has taken place and accused has ill treated and harassed and being fed up with the life committed suicide by pouring kerosene over her body :8: and litting fire to herself. On the basis of the said evidence, the Court below has rightly come to the conclusion and convicted the accused. There are no good grounds to acquit the accused by setting aside the impugned judgment of conviction and order of sentence. On these grounds, he prays to dismiss the appeal.
7. I have carefully and cautiously gone though the arguments of the learned counsel for the parties and perused the records.
8. In order to prove the case of the prosecution, prosecution got examined 19 witnesses. PW1 and PW2 are the Inquest Mahazor Panchas to Ex.P1, PW3 and PW4 are the scene of occurrence panchas to Ex.P2. PW-5 is the mother of the deceased; PW6 is the father of the deceased. PW7 is brother of the deceased. PW8 is mother-in-law, PW-9 is the father-in-law, PW10 to PW12 are the neighbourers who are staying beside the house of the accused and they have not supported the case of :9: the prosecution and they have been treated as hostile and even during the course of evidence nothing has been elucidated so as to substantiate the case of the prosecution. PW14 is the doctor who examined the accused and issued the certificate as per Ex.P23. PW15 is the doctor who conducted autopsy over the body of the deceased and issued post mortem report as per EX.P24. In his evidence, he deposed that deceased had sustained 90 to 95% of burn injuries over her body. PW-16 is the Police constable who carried articles to FSL Bengaluru. PW17 is the investigating officer who investigated the case and PW18 is the Tahasildar who recorded the dying declaration of the deceased as per Ex.P33(C) and PW19 is the doctor who has got admitted the deceased in the first instance immediately after the incident has taken place and he has also issued fitness certificate as per Ex.P33(C) and material witnesses have turned hostile. The only evidence which is available before the Court is dying declaration. Though, the : 10 : material witnesses have turned hostile and not supported the case of the prosecution, even if the said dying declaration said to have been given by the deceased if it is cogent and acceptable by the Court then under such circumstances, it will be having special sanctity and significance and on the basis of the said dying declaration accused can be convicted in this behalf.
9. I am conscious of the fact that the fitness certificate is only a corroboration, if Court comes to the conclusion that the deceased was able to give the declaration and it is trustworthy, even in the absence of the fitness certificate, Court can rely upon the said declaration and come to the conclusion that declaration given by the accused is trustworthy and by relying upon the same the accused can be convicted. Keeping in view the above said proposition of law let me consider the dying declaration given before PW18-Tahasildar. He came to be examined before the Court. In his evidence : 11 : he has deposed that he has received the requisition on 20.04.2009 at about 2.20.p.m. and on the same day immediately at about 00.40 hours he has visited the Causality Medical Officer and asked about the fitness of the patient to give the statement and he gave fitness certificate and thereafter he has recorded her statement as per Ex.P.33 and he has also narrated what she has stated as per Ex.P.33. During the course of cross examination, he has admitted that in Ex.P.34, he has made an endorsement to the effect that he has received the requisition on 20.04.2009 at about 2.20 p.m. and he is not in a position to say where glucose has been adopted to the deceased and other aspects.
10. On close reading of the Ex.P.33 and Ex.P.34, there is an endorsement and admission of PW18 to the effect that he has received a requisition on 20.04.09 at 2.20.p.m. But, the dying declaration Ex.P33 shows that it was declared and recorded at about 00.40 hours prior to he receiving the requisition, that itself creates doubt : 12 : in the recording of dying declaration. As per Ex.P33(c) when there is a clear admission to the fact that he has received requisition on 20.04.2009 at about 2.20 p.m. there was no question of he recording the statement as per Ex.P33(c) that itself creates a doubt. Be that as it may. As could be seen from the Ex.P20, the same has been recorded by PW13 and he has been examined before the Court and he has deposed that along with Sub-inspector he went to hospital and there they enquired with the Medical Officer about the fitness and thereafter after ascertaining the record, the dying declaration/complaint is recorded and he is the scribe to the alleged Ex.P.20. As could be seen from the records, Ex.P33 contains the thumb impression of left leg big toe and Ex.P20 shows that it is left hand thumb impression and why that left hand thumb impression has been taken in Ex.P.20 and why that left leg big toe impression was taken is not forthcoming. If really the Tahasildar was under the impression that she cannot : 13 : put the left thumb impression and has taken the impression of the big toe of the left leg, then under such circumstances, thumb impression that had taken by the Police officials on Ex.P20 creates doubt.
11. Be that as it may, Ex.P.20 is created on the basis of the dictation said to have been given by the Sub inspector. But for the reasons best known to the prosecution that person has not been examined before the Court and his evidence has been suppressed. When the material witnesses in the first point of time, if he has not been examined, that itself creates doubt in the case of the prosecution. When the declaration said to have been the dying declaration if it is covered with clouds, then under such circumstances, the benefit of doubt must go to the accused. All material witnesses including the mother of the deceased, brother of the deceased, and father of the deceased, who came immediately after the incident has taken place, have not come forward to support the case of prosecution. In : 14 : that light, I think and feel that the Court below without proper appreciation of the evidence on record has come to a wrong conclusion and has convicted the appellant- accused and the same is liable to set aside.
12. Another crowning factor is that even accused was present and immediately when she set fire, he has also tried to douse the fire, he has also sustained the injuries and he has also been examined by PW14 and he has issued Ex.P23. Even Ex.P23 will also not throw any light for what reason he has sustained the injuries. If really, it is due to the said facts then under such circumstances, it could have thrown light, even the MLC register which is crucial point for consideration has also not been produced by the prosecution for the reasons best known to it.
13. In the light of the discussion held by me above, appeal is allowed. Judgment of conviction and sentence passed by the V-Additional Sessions Judge, : 15 : Belgaum in S.C.No.285/2009 dated 15.10.2010 is set aside and appellant-accused is acquitted of all the charges leveled against him.
If he has executed any bail bond along with surety, the same are stands cancelled.
Sd/-
JUDGE HMB