Karnataka High Court
Rajiya Sulthana vs State Of Karnataka By on 23 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1352
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CRL.A. NO.474/2015
BETWEEN:
1. RAJIYA SULTHANA
W/O LATE VAHEED @ VAHED PASHA
AGED ABOUT 20 YEARS
RESIDENT OF SEETHAKALLU PALYA
KORA HOBLI, TUMAKURU TALUK
PIN CODE - 5721020.
2. NOORJAN
W/O BASHASAB
AGED ABOUT 45 YEARS
OCCUPATION: HOUSEWIFE
RESIDENT OF GERAHALLI
KORA HOBLI, TUMAKURU TALUK
PIN CODE - 5721020.
3. MAHAMMED BASHA @ BASHASAB
S/O LATE ANEEF SAB
AGED ABOUT 55 YEARS
OCCUPATION OWNER OF LORRY
RESIDENT OF GERAHALLI
KORA HOBLI, TUMAKURU TALUK
PIN CODE - 5721020.
4. NAYAZ AHAMMED @ NAYAZ PASHA
S/O MAHAMMED BASHA @ BASHASAB
AGED ABOUT 24 YEARS
OCCUPATION: LORRY DRIVER
RESIDENT OF GERAHALLI
2
KORA HOBLI, TUMAKURU TALUK
PIN CODE - 5721020.
...APPELLANTS
(BY SRI. HASHMATH PASHA, SR. COUNSEL A/W
SRI. KALEEM SABIR, ADVOCATE)
AND:
STATE OF KARNATAKA BY
RURAL POLICE, TUMAKURU RURAL
CIRCLE, TUMAKURU
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR) ...RESPONDENT
(BY SRI. VIJAY KUMAR MAJJAGE, Addl.SPP)
THIS CRL.A. FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:23.03.2015,
PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
TUMAKURU, IN S.C. NO.106/2013- CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES P/U/S
302 OF IPC AND ACCUSED NO.2 TO 4 FOR THE OFFENCES
P/U/S 109 R/W 114 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by accused Nos.1 to 4
challenging the judgment of conviction and order of sentence dated 23.3.2015 passed in S.C.No.106/2013 by the Principal District and Sessions Judge, Tumakuru whereunder they came to be tried for the offences 3 punishable under Sections 302, 114 r/w.34 of IPC and convicted for the same and accused No.1 came to be sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- for the offence punishable under Section 302 IPC and accused Nos.2 to 4 came to be sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- each of the offence punishable under Section 109 read with Section 114 IPC.
2. The gist of the prosecution case is, on 24.6.2012 at about 4.00 P.M. deceased Wahid Pasha, husband of accused No.1, after attending marriage of his cousin sister, had returned home and was sleeping on a rice bag and at that point of time, accused persons had abused him for having attended the marriage of his cousin sister and accused Nos.2 to 4 had instigated accused No.1 to kill her husband Sri Wahid Pasha and as such, accused No.1 poured kerosene on him and set him on fire. It was further alleged that on 24.6.2012 deceased was admitted to the District Hospital, Tumakuru and after being 4 administered first aid was shifted to Victoria Hospital, where he died on 27.6.2012 at about 4.00 P.M. Hence, it was alleged that accused persons in furtherance of their common intention had committed the offence punishable under Sections 302, 114 r/w 34 of IPC. It was alleged by the prosecution that parents of accused No.1, viz. accused Nos.2 and 3 and her brother-accused No.4 have abetted accused No.1 to commit the murder of her husband-Wahid Pasha.
2.1) The statement of the deceased recorded by the police was registered as Crime No.210/2012 for the offence punishable under Section 307 r/w 34 of IPC and on the demise of said Sri Wahid Pasha on 27.06.2012 at about 4.45 p.m., Sections 302 and 114 of IPC was added.
2.2) On completion of investigation, charge sheet came to be filed for the offence punishable under Section 302, 114 r/w 34 of IPC.
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2.3) The prosecution in order to drive home the guilt of the accused, in all examined 14 witnesses viz. P.Ws 1 to 14 and got marked Exhibits- P1 to P18, MOs 1 to 5. Thereupon, accused have been examined under Section 313 Cr.P.C. stating the incriminating evidence appearing against them, which came to be denied. On behalf of the accused, a photograph as per Ex.D1 was got marked and it was total denial.
2.4) After evaluating the evidence, learned Sessions Judge by judgment dated 23.3.2015 has convicted accused No.1 for the offence punishable under Section 302 of IPC and Accused Nos.2 to 4 for the offence punishable under Section 109 r/w.114 of IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.2,000/- and Rs.1,000/- each respectively. Hence, this appeal.
3. We have heard the arguments of Sri.Hashmath Pasha, learned Senior Counsel appearing on behalf of M/s.Hashmath Pasha and Associates and Sri.Vijay 6 Kumar Majage, learned Additional SPP appearing for the State.
4. It is the contention of Sri.Hashmath Pasha, learned Senior Counsel appearing for appellants that conviction is based on the dying declaration-Ex.P15 which is not reliable and the evidence on hand when examined in detail would clearly indicate that Left Thumb Impression (for short 'LTM') of the deceased is taken earlier to the writings found on Ex.P15 and as such it is not the actual version of the deceased. He would also contend that deceased was not even conscious enough to give statement as per Ex.P15 and the very fact that certification came to be made in the second page of Ex.P-15 as per Ex.P-15(a) raises a serious doubt with regard to mental status of the deceased as the Doctor had already certified that statement was made by the patient before him and this gives scope to doubt the contents of Ex.P-15.
4.1) He would contend that evidence of P.W.14 would indicate that scribe of Ex.P15 was a Police Constable No.530-Mr.Rajanna, according to Investigation 7 Officer - P.W.14, who was not examined and there is no explanation forthcoming by the prosecution for his non- examination and even otherwise the Doctor viz. PW12, who claims to have certified the physical and mental condition of the deceased, has deposed that handwriting on Ex.P-15 is that of a House Surgeon at the District Hospital who has also not been examined and these contradictions in the evidence of the witnesses has not been explained by the prosecution. He would draw the attention of the Court to the evidence of P.Ws.12 and 14 to contend that inconsistency in their evidence with regard to the scribe of Ex.P.15, theory put forward by the prosecution cannot be accepted. He would contend that contents of Ex.P15 implicates accused Nos.1 to 4 and it is highly improbable to believe that all the accused persons were huddled in an area of 8ft. x 6 ft. as sought to be made out and this attempt on the part of prosecution itself would clearly go to show that accused have been falsely implicated and the contents of Ex.P15 would not indicate it is the statement made by the deceased.
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4.2) He would elaborate his submissions by contending that contents of Ex.P-3-Mahazar do not fit into the circumstances seen at the scene of offence which mahazar came to be drawn on 24.06.2012 at the first instance and when this is compared with Ex.P-2 drawn on 30.06.2012, it would indicate that only accused No.1 had poured kerosene and lit the fire and this inconsistency in prosecution case is a gaping hole which has not been plugged.
4.3) He would further contend that prosecution has alleged that strong motive for accused No.1 to take extreme step of eliminating her husband was on account of deceased having attended the marriage of his relative with whom relationship of the accused and their family members had got strained and this being a trivial reason, it cannot be imagined as a ground for accused No.1, at the instigation of accused Nos.2 to 4 having murdered the deceased. He would also contend that conduct of the accused persons as well as evidence available on record do not disclose about any act having 9 been perpetrated by them in murdering husband of accused No.1 so as to implicate them.
4.4) He would further draw the attention of the Court to Inquest Panchanama-Ex.P.5 at column Nos.9, 13 and 17 to contend that even at the earliest point of time, none of the witnesses have expressed any suspicion about the presence of accused Nos.2 to 4 and as such, learned Sessions Judge had committed a serious error in convicting them by erroneously appreciating the evidence and ignoring the available evidence on record and thereby calling for interference at the hands of this Court. Hence, he prays for appeal being allowed by setting aside the judgment of conviction and order of sentence passed against the appellants/accused. In support of his contention, he has relied upon the following authorities.
1. 2006 (2) Crimes 9 (SC) P.MANI Vs. STATE OF TAMIL NADU
2. (2019) 4 SCC page 739 SAMPAT BABSO KALE Vs. STATE OF MAHARASHTRA 10
3. (1993) 1 SCC page 1 KAMLA Vs. STATE OF PUNJAB
4. AIR 1979 SC 1173 DALIP SINGH Vs. STATE OF PUNJAB
5. AIR 1993 SC 2457 GOVIND NARAIN Vs. STATE OF RAJASTHAN
6. (2001) 6 SCC page 407 ARVIND SINGH Vs. STATE OF BIHAR
5. Per contra, Sri Vijaykumar Majage, learned Additional Special Public Prosecutor appearing for the respondent-State would support the judgment of conviction and order of sentence passed against the accused and he would contend that not only dying declaration, but also the evidence of P.Ws.3 and 8 corroborates the case of the prosecution and as such, no suspicion can be raised with regard to maker of dying declaration having not stated so. He would submit that evidence of P.Ws.2 to 4 clearly indicate the presence of all the accused persons at the scene of offence and also their non-explanation for not being present at the scene of offence and their absence immediately thereafter, would probablize the theory put forth by the 11 prosecution. Hence, under Section 106 of the Indian Evidence Act, 1872, inference has to be drawn against the accused.
5.1) He would also submit that defence taken by the accused persons is inconsistent and at the first instance, they contended that accused No.1 was present at the scene of offence and later on have contended, accused No.1 had been to police station. Hence, it is for accused No.1 to explain the circumstances under which the deceased had caught fire and on account of no explanation being offered, the theory put forward by the prosecution deserves to be accepted by virtue of dying declaration Ex.P-15 tendered by husband of accused No.1. He would also contend that on account of hatredness of accused No.1 towards the deceased and being fed up with his continuous conduct, accused persons had decided to eliminate him and using the ground of he having attended the marriage of his relative to pick up a fight at the house of the deceased, which resulted in accused No.1 pouring kerosene on him and 12 setting him on fire after being instigated by accused Nos.2 to 4 and as such, he would submit that the learned Sessions Judge has rightly convicted the accused persons and prays for sustaining the judgment of conviction and order of sentence passed against the appellants/accused and prays for dismissal of the appeal.
6. Having heard the learned advocates appearing for the parties and after bestowing our careful consideration to the rival contentions raised at the bar and on perusal of the record secured from the Sessions Court, we are of the considered view that following points would arise for consideration:
(i) Whether judgment of conviction and order of sentence passed by the Principal District & Sessions Judge, Tumakuru, in SC.No.106/2013 convicting accused No.1 for offence punishable under Section 302 of IPC and accused Nos.2 to 4 under Section 109 read with 13 Section 114 IPC by sentencing them to life imprisonment is to be sustained or set aside?
(ii) What order?
7. Having perused the judgment of conviction and order of sentence passed by the learned Sessions Judge, we notice that learned Sessions Judge has convicted the accused persons on the following grounds:
(i) prosecution has established that it was a homicidal death;
(ii) evidence of P.Ws.2 to 4 would indicate that there is uniformity in the pattern of evidence and it depicts that there was animosity between accused No.1 and deceased and as such, she had murdered her husband;
(iii) there are no contradictions elicited from the evidence of P.Ws.1 to 3 and their evidence would indicate that they have deposed that on 24.06.2012 deceased had come out of the house screaming "Joru Jaladiya", "Sab Milke Jaladiya", "Bachaav Bachaav" would clearly indicate that accused No.1 at the instance of accused Nos.2 to 4 had 14 poured kerosene and had set him on fire resulting in his death due to burn injuries;
(iv) P.W.1 has clearly admitted that he was
present at the time of statement of
deceased Sri Wahid Pasha was
recorded (dying declaration) as per
Ex.P.15 and no contradictions are
elicited.
For the reasons aforestated, learned Sessions Judge has arrived at a conclusion that evidence on record would establish that wife of deceased namely, accused No.1 and deceased Sri Wahid Pasha were not in good terms and they were frequently quarreling; accused Nos.2 to 4 being the parents and brother of accused No.1 had abetted for the commission of the offence by participating in the commission of murder of Sri Wahid Pasha and same has been proved beyond reasonable doubt. As such, the judgment convicting the appellants and sentencing them as noticed hereinabove came to be passed.15
8. In the light of rival contentions raised, we have perused the depositions of material witnesses namely, P.Ws.1 to 4 which has been heavily relied upon by the prosecution and the learned Sessions Judge who has sentenced the appellants with life imprisonment. At the outset, it requires to be noticed that P.Ws.1 to 3 are close co-relatives of the deceased. Hence, their evidence is to be scrutinized, examined and evaluated with utmost care and caution.
9. P.W.1 is none other than uterine cousin of the deceased namely, father of the deceased is his mother's own brother and in his evidence, he has deposed that deceased while coming out of the house had shouted "Kapaadi Kapaadi" (save save). He further admits that there are houses adjacent to the house of the deceased. He would also admit that deceased was in a financial distress after having sold his lorry and was also in debt.
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10. P.W.2 is the first cousin of the deceased (¸ÉÆÃzÀgÀvÉÛ ªÀÄUÀ). In his examination-in-chief, he says "Joru Jaladiya", "Sab Milke Jaladiya", "Bachaav Bachaav". In fact, he is a witness to the Spot Mahazar -Ex.P.3. He being the close relative of the deceased Sri Wahid Pasha as admitted by him in his cross-examination at paragraph No.6, his deposition also requires to be considered with care and caution. He has stated in his examination-in-chief that though deceased was his cousin, he was also his close friend and was sharing all information with him including his happiness and sorrow. However, he feigns ignorance about the activities of the deceased. In his cross-examination, he states that he does not know about the activities of the deceased namely deceased having sold his lorry; deceased having pledged gold ornaments of his wife to overcome financial problem he was facing and being in deep debt. A person who claims to be close or intimate not only by blood, but also on account of they having developed a close bond of friendship, it is very hard to believe that such person 17 would not be aware of the circumstances, in which, the deceased was placed. This would raise a serious doubt about the credibility of the statements made by this witness. In fact, he has clearly admitted in his cross- examination that marriage between deceased and accused No.1 was a love marriage. He would also state that when he went to the scene of offence, he had seen accused No.1 carrying child with her. Relevancy of this fact would be delved upon by us at a later stage.
11. Now turning our attention to the evidence of P.W.3, we find that he is the first cousin of the deceased as admitted by him in paragraphs No.8 and 18 of the cross-examination. With regard to panchayat being held about four months prior to the incident to resolve the dispute between deceased and accused No.1 and her family members would also indicate the fact that deceased had grouse against accused. P.W.3 is a witness to Spot Panchanama - Ex.P.3. In fact, his evidence requires to be considered for the purpose of outright rejection in as much as he has admitted in his cross- 18 examination vide paragraph - 4 that he does not know the contents of Ex.P.3. He would also state that marriage between the deceased and accused No.1 was a love marriage. Yet another intriguing fact is that 3 to 4 months prior to the alleged incident, accused No.1 had given a complaint to Women Counseling Centre not only against deceased, but also against his family members and there was a compromise arrived at, which would indicate that there was discontent between two families.
12. The prosecution has attempted to drive home the guilt of the accused through the evidence of P.Ws.1 to 3. There cannot be any dispute to the proposition that investigation should be fair and cautious. The Investigating Officer should rule out possibility of fabrication and his conduct should dispel suspicion. For this, proposition, law laid down by the Hon'ble Apex Court in the case of Mahmood Vs., State Of U.P reported in 1976 (1) SCC 542 at paragraph Nos.13 to 20 can be looked upon.
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13. As noticed hereinabove, P.Ws.1 to 3 are the close relatives of the deceased. Even according to the prosecution, as per spot panchanama-Exs.P.2 and P.3, description of the property where the alleged scene occurred, the said house is bounded by several houses. On the eastern side, there is house of Basha Sab; on the northern side, there is residential building of Sri Javeed and on the southern side, there is residential building of Sri Jabiulla. It is for the prosecution to explain as to why it did not choose to examine the neighbors as witness. As such, we have observed hereinabove that the evidence tendered by the prosecution by examining P.Ws.1 to 3 who are close relatives and kith and kin of the deceased will have to be considered with great care and caution and any doubt which arise, in this regard, would necessarily enure to the benefit of the accused and such evidence is to be brushed aside. However, it is not a thumb rule that close relatives of the deceased should not be examined as witnesses. It all depends upon facts and circumstances of each case. In the instant case, at the scene of offence, there are many 20 houses and witnesses were available in the close proximity of the house of the deceased and accused No.1. No explanation is offered by prosecution as to why they were not examined. However, only relative or friend of the deceased were to be available near the scene of offence and there being no other suspicious circumstances surrounding statement of such person/s in such circumstances, it cannot be gainsaid by the defence that such evidence should be brushed aside. However, as a precaution, such evidence before being eschewed, will have to be examined or scrutinized by ascertaining as to whether there were any other independent witnesses available there and if yes, what prevented the prosecution in not examining such witnesses. In fact, Spot Panchanamas - Exs.P.2 and P.3 would not only disclose there were other houses adjacent to the house of the deceased, but there were also several persons residing in the close proximity to the house of accused No.1 and deceased as on 24.06.2012. However, no explanation is forthcoming from the prosecution for non-examination of such persons as witnesses. In this 21 regard, the authoritative principle laid down by the Hon'ble Apex Court in the case of State of U.P Vs., Arun Kumar Gupta reported in 2003 (2) SCC 202, can be looked up, wherein it has been held that if reasonable explanation is not forthcoming from prosecution for not summoning any independent witness residing in that locality and residents of the houses in the immediate proximity of the house of the accused available and large number of people present at the time of recovery, then in such circumstances, prosecution should have come forward with some explanation for examining only the relative and no other independent witnesses being available. It has been further held as under:
"16. In this regard, the prosecution relies on the evidence of PW-
4. We have earlier noticed that PW-4 is not a resident in the immediate proximity of the house of the respondent. He belongs to the same biradari of the complainant and lives behind the house of the Investigating Officer, PW-9. We find no reasonable explanation, why such a person was called to be a witness to the recovery when there were any number of people available and who are residents of the houses in the immediate proximity of the house of the respondent. We also notice from the records that a large 22 number of people were present at the time of the recovery, therefore, the prosecution should have come forward with some explanation, why PW-4 was so selectively chosen to be the witness for the recoveries. We also notice, xxxx to reject the prosecution version."
This explanation not forthcoming from the side of prosecution, we have no hesitation in rejecting prosecution version, as the evidence of P.W.1 to P.W.3 cannot be reliable as they being interested witnesses on account of they being close relatives of the deceased.
14. Now this takes us to the next two witnesses namely P.W.4 and P.W.8. P.W.4 whom the prosecution claims to be an independent witness was examined to demonstrate that deceased was burnt by accused persons, which has been accepted by the learned Sessions Judge. At the threshold, her evidence will have to be discarded as she is not a resident of the place where the alleged offence took place. She is the resident of Upparahalli in Tumkur Town and claims to have visited her son Nazir Pasha (who was not examined) on 23.06.2012 along with her daughter and said Nazir 23 Pasha was said to be residing near the house of deceased and accused No.1. She goes on narrating the alleged incident as though she is a witness to the incident that had occurred on 26.04.2012 and she also claims to have talked to deceased and also accused No.1. However, truth has been elicited in her cross-examination dated 03.02.2014 vide paragraph No.9 whereunder she states that previous date to 23.06.2012, she had not gone to the house of Nazir Pasha. In her own words, her admissions read as under:
"9. ¢: 23.6.12gÀ »A¢£À ¢£ÁAPÀzÀ°è £Á£ÀÄ £Á¹gÀ£À ªÀÄ£ÉUÉ ºÉÆÃVgÀ°®è. ¥ÉÆðøÀgÀÄ ¢: 25.6.12 gÀAzÀÄ ªÀĺÀdgï ªÀiÁrPÉƼÀÄîwÛzÀÝgÀÄ. DUÀ £Á£ÀÄ C°èUÉ §AzÉ, DUÀ CªÀgÀÄ £À£Àß ºÉýPÉ ¥ÀqÉzÀÄPÉÆAqÀgÀÄ. ¢ 27.6.12 gÀAzÀÄ £Á£ÀÄ PÀÄlÄA§zÉÆA¢UÉ «PÉÆÖÃjAiÀÄ D¸ÀàvÉæUÉ ºÉÆÃV ªÁ»zï ¥Á±À£À£ÀÄß ªÀiÁvÀ£Ár¹PÉÆAqÀÄ §AzÀ «µÀAiÀĪÀ£ÀÄß ¥ÉÆðøÀgÀ ªÀÄÄAzÉ £Á£ÀÄ ºÉý®è. ªÁ»zï ¥Á±À £À£Àß ¸ÀA§A¢üPÀ£À®è. ¥ÉÆðøÀgÀÄ £À£Àß ªÀÄUÀ¼À ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀĪÀÅ¢®è. £Á£ÀÄ ¸ÀļÀÄî ¸ÁPÀëöå ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £ÀÆgïeÁ£ï, ªÀĺÀªÀÄzï ¨ÁµÀ ªÀÄvÀÄÛ £ÀAiÀiÁeï CºÀªÀÄzï D ªÀģɬÄAzÀ NrºÉÆÃzÀgÀÄ JA§ £À£Àß ºÉýPÉ ¸ÀļÀÄî J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."24
P.W.4 claims to be at the scene of offence on 24.06.2012. She also claims that she was present on 24.06.2012 when deceased came out of his house after being set on fire and she having followed him to hospital. However, her statement was not recorded. She also claims, she had visited Victoria hospital on 27.06.2012 at 2.30 p.m. However, her statement was not recorded on that day also. However, she claims to have given her statement on 25.06.2012 before Police, whereas, P.W.13 has deposed, he recorded the statement of P.W.4 on 30.06.2012. The inconsistencies in the deposition of P.W.4 are staring as discussed herein above. Hence, her evidence recedes to the background and no reliance can be placed on it.
15. P.W.8-Saleem Basha is none other than uterine brother of the deceased. The prosecution has examined this witness for two reasons: (i) that he had been to the scene of offence on 24.06.2012; and (ii) his deposition corroborated with statement made by the deceased in his dying declaration-Ex.P.15. As already 25 observed hereinabove, P.Ws.1 to 3 being close relatives of deceased and the manner in which their evidence requires to be appreciated is squarely applicable to P.W.8 also. In fact, P.W.8 admits that marriage between accused No.1 and deceased was a love marriage and in the complaint given by accused No.1, he (P.W.8) had also been arraigned as an accused. Thus, an animosity between accused No.1 and P.W.8 cannot be ruled out.
16. The prosecution has alleged that the incident occurred at the house of deceased and A1. There is inconsistency between two Panchanamas - Ex.P-2 and P-3. The contents of Ex.P-2 do not fit into the contents of the circumstances seen at the seen of occurrence. Ex.P-2 only implicates accused No.1 whereas under
Ex.P-3 it implicates all the accused. There is no explanation forthcoming from the prosecution as to why P.W.4, who was an independent witness, is not a signatory to Ex.P-3 since she claims she was present at the scene of crime on 24.06.2012 when police arrived 26 and recorded the Panchanamas. This raises a serious doubt with regard to correctness of Exs.P-2 and P-3.
17. According to P.W.2, Ex.P-3 has been attested by three persons including himself. However, in the examination-in-chief at paragraph - 3, he is unable to state the names of two other persons who has affixed their signatures to Ex.P-3. This raises a serious doubt with regard to the panchanamas Exs.P-2 and P-3.
18. The alleged dying declaration-Ex.P.15 has been relied upon by the prosecution to drive home the guilt of the accused. It is well settled that position of law one of the important tests about the credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on dying declaration, Court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance 27 on it. The dying declaration should be voluntary and should not be prompted. Physical as well as mental fitness of the maker should be proved by the prosecution. This view gets support from the authoritative pronouncement of Hon'ble Apex Court in the matter of Kanti Lal Vs. State of Rajasthan reported in AIR 2009 SC 2703.
19. Though, there is neither a rule of law nor a rule of prudence, the dying declaration cannot be acted upon without corroboration, but the Court must be satisfied that the dying declaration is true and voluntary and it can base conviction on it without corroboration if it is wholly reliable. It will be the duty of the Court to scrutinize the dying declaration carefully and must ensure that the dying declaration should not be the result of tutoring, prompting or imagination. Where the dying declaration is surrounded with suspicion and on its face value, cannot be accepted, it cannot be acted upon without corroborating evidence. The dying declaration has to be examined and treated with great 28 caution in as much as, the accused does not get the chance of cross-examining the maker of the statement namely the victim. In the matter of Munnu Raja & Another Vs. the State of Madhya Pradesh reported in AIR 1976 SC 2199, the Hon'ble Apex Court has held as to when the dying declaration would be admissible and as to when the necessity of corroboration would arise, it has been held to the following effect:
"6. The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see Khushal Rao v. State of Bombay, 1958 SCR 552 = (AIR 1958 SC 22]. The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.
7. It was contended by the learned counsel for the appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full 29 account of the incident or of the transaction which resulted in his death There is no substance in this contention because in order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring."
20. In the matter of Rambai Vs. State of Chhattisgarh reported in (2002) 8 SCC 83, it has been held that physical state of or injuries on the declarant not by themselves determinative of mental fitness of the declarant to make the statement, mental fitness can be ascertained from opinion of doctor or from testimony of witnesses and surrounding circumstances, solely on the ground that the dying declaration does not contain the certificate of a doctor about mental fitness of the 30 deceased, it cannot be rejected and if the person recording the statement is satisfied that declarant was in a fit mental condition to make the dying declaration. It has been further held as under:
"6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, [(2002) 6 SCC 710] wherein overruling the judgment of this Court in Laxmi vs. Om Prakash [(2001) 6 SCC 118], it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19, Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart, from the narration of the questions and answers in the dying declaration it is clear that the deceased was 31 in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission into the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs.12 and 11 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below. Learned counsel then contended that from the evidence of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resiled from his statement made before the investigating officer have held that it is not safe to rely upon DW.2. In such a situation we are unable to take a contra-view from the one taken by the courts below."32
21. In the case of Sampat Babso Kale Vs. the State of Maharashtra reported in (2019) 4 SCC 739, the Hon'ble Apex Court while examining the evidentiary value of the dying declaration for sustaining the charge of murder has held that a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration. It was further held by the Hon'ble Apex Court as under:
"16. In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case."
22. Thus, in the light of the above authoritative principles, it will have to be examined as to whether the 33 statement made by the deceased as per Ex.P-15 was in fact made by him and there was no suspicious circumstances surrounding it; and whether, he was mentally fit to make such statement. The normal rule is that while recording statement, a requisition has to be made to the jurisdictional Magistrate and the Investigating Officer himself recording the dying declaration has been deprecated by this Court and Hon'ble Apex Court in catena of judgments. Yet it continues to be repeated. However, this rule of caution cannot be held to be universally applicable, inasmuch as, a situation may unfold where the victim is in precarious condition and intends to make statement and as such, statement requires to be recorded immediately by the Investigating Officer and in such circumstances, he may record the dying declaration. Thus, it would be incumbent upon the prosecution to prove as to why the jurisdictional Magistrate was not requisitioned and whether the circumstances so warranted its acceptance. It all depends on facts and circumstances of each case. 34
23. Keeping these aspects in mind, we have carefully examined the dying declaration marked as Ex.P.15 which is said to have been made by the deceased who was husband of accused No.1. The said dying declaration has been marked through P.W.14. He has stated in his cross examination that scribe of Ex.P-15 is one Sri Rajanna - P.C.No.530. In fact, Ex.P-15 does not contain any endorsement having been made by the scribe to the said effect. It does not indicate as to whether same having been recorded by the said Constable Sri Rajanna. In fact, the Doctor who claims to have affixed his signature to the dying declaration and has endorsed on it to the effect "patient has given statement before me" was examined as P.W.12 and in his cross examination dated 04.08.2014 he states that Ex.P-15 is in the handwriting of the House Surgeon. He also states that he cannot tell the name of said House Surgeon. This inconsistency in the evidence of P.Ws.12 and 14 is writ large on the face.
35
24. Hon'ble Apex Court in the case of GOVIND NARAIN & ANOTHER vs STATE OF RAJASTHAN reported in AIR 1993 SC 2457 has held non examination of the scribe of dying declaration, such dying declaration is liable to be rejected. It has been held:
"14. This takes us now to the consideration of the dying declaration alleged to have been reduced into writing, exhibit P-3. The High Court as well as the trial court have disbelieved exhibit P-3 for a variety of reasons. Even if we agree with Mr.Makwana, learned counsel for the complainant that some of the reasons given by the High Court to discard exhibit P3 were not sound, we find that no reliance can be placed on the document exhibit P-3 for the simple reason that the scribe of the document, Shri Jagdish Narain, constable, for the reasons best known to the prosecution, was not examined at the trial and the defence, therefore, had no opportunity to cross-examine him. Mohammed Ali P.W.4 has failed to explain the cause for non production of Jagdish Narain. We are, therefore, in agreement both with the trial court and the High Court, that there are sufficient reasons on the record to justify the discarding of the alleged dying declaration contained in exhibit P3 and we do not place any reliance on the same."
(Emphasis supplied by us) 36
25. A perusal of Ex.P-15 would indicate that it consists of two pages. In the first page, alleged LTM of the deceased is said to have been taken by P.W.14. It also contains the signature of the Doctor P.W.12 - Dr.G.B.Chandan who has endorsed to the effect "patient has given statement before me". In fact, in between the line No.12 and 13, time has been inserted as "¸ÀAeÉ 4-00 UÀAmÉUÉ" Same is not countersigned either by P.W.14 or P.W.12 or maker of the statement. In other words, there is no LTM of the deceased at the place of correction. Even if this discrepancy is ignored for a moment, further suspicion surrounding the said document does not get allayed. We say so, for the simple reason that LTM of deceased which is found at the foot of first page would disclose it is at the bottom of the page over which letters have been written.. In the normal circumstances, person who records or person in whose presence statement is made would endorse as LTM of Mr. so & so. This is also absent. In fact, nothing would be written after LTM is taken as the statement ends with the LTM. Surprisingly, in the 37 instant case, an endorsement is made in Ex.P-15 over the page to the effect "read over and explained and certified same to be correct (N¢¹ PÉýzÉ ¸ÀjEzÉ)". After this endorsement - Ex.P-15(a) made by the Doctor - P.W.12, an endorsement has also been made by the then Sub Inspector of Police, Rural police station, Tumkur namely, P.W.13 for having registered an FIR on the basis of said statement in Crime No.210/2012. In between LTM and recording of Ex.P-15(b), further endorsement has been made purportedly by the Doctor - P.W.12 which is to the effect "conscious enough to give statement". As observed herein above, physical state or injuries on the declarant by themselves would not determine the mental fitness of the declarant to make a statement. In other words, mental fitness can be ascertained from the opinion of the Doctor or from the testimony of the witnesses who were present, the person who recorded it and the surrounding circumstances. The alleged dying declaration - Ex.P-15 is said to have been recorded at about 5.40 p.m. on 24.06.2012 i.e., two hours after the incident. 38 Mental status would depend upon the person who has suffered an injury. In certain circumstances, even a victim suffering 80% to 90% burn injuries may be in a fit mental position and capable of making a statement. However, if the person is mentally weak, even if 30% to 50% of the injuries may tend to disbelieve that he was mentally fit for giving the statement. In other words, fit mental condition would depend on varied circumstances and there cannot be any precise formula prescribed in that regard. Thus, in the circumstances where a person like in the instant case is stated to have suffered 80% burn injuries, was he mentally fit for giving a statement will have to be examined, in the face of evidence of Doctor P.W.12 as well as medical records that are available.
26. Except Ex.P-16 - MLC Register extract, there was no other document available on record. Deceased is stated to have been brought to the hospital by one Mr.Altaf Pasha as is evident from Ex.P-16. it would be apt and appropriate to note at this juncture itself the entry made in Ex.P-16 and it reads:
39
"H/o alleged burns on 24/6/12 @ 4:30 pm inside house."
The above entry does not reflect as to whether said injuries are caused on account of accidental injury, homicidal injury or suicidal injury. Same was required to be explained by the prosecution by placing such cogent evidence to dispel any doubt that may arise in this regard. However, such exercise has not been taken and a valiant attempt has been made before this court by learned Additional SPP to buttress his argument that Ex.P.15 has to be accepted on account of corroboration of the same by P.W.3 and P.W.8 which would be dealt by us little later.
27. As noticed herein above, except one page of MLC Register - Ex.P-16, no other medical records of the deceased was produced before the Sessions Judge to evaluate as to whether deceased was in a fit state of mind to make a statement. There is no mention in Ex.P-16 that deceased Sri Wahid Pasha was conscious and able to speak. One Mr.Altaf Pasha who brought the deceased to District Hospital and who is not a near 40 relative of deceased, who has signed Ex.P-16 has not been examined. There is no mention or note made in Ex.P-16 about local police having been informed. In fact, deceased was referred to Victoria Hospital immediately after first aid was administered at District Hospital at Tumkur. No records of Victoria Hospital came to be produced. P.W.14 says he recorded the statement of deceased Sri Wahid between 5.00 p.m. to 5.40 p.m. and he has not affixed his signature to Ex.P- 15 or the signature of scribe P.C.530 - Sri Rajanna or the House Surgeon, who is said to have recorded the statement according to P.W.12. Serious suspicious features are surrounding with regard to person recording the statement - Ex.P-15 and same having not been cleared, a serious doubt arises with regard to deceased Sri Wahid having made the dying declaration as per Ex.P-15. We are of the view that police have prepared Ex.P-15 on imaginary facts.
28. At the outset, the very dying declaration Ex.P-15, as noticed herein above, is shrouded with mystery which has remained unraveled. To put it 41 differently, inconsistencies noticed by us herein above has remained as such without having been explained by the Investigating Officer. The Doctor - P.W.12 has endorsed twice in Ex.P-15 namely, at the first instance in the first page and subsequently in the second page, which has been marked as per Ex.P-15(a). In the cross examination, for a specific question as to whether deceased Sri Wahid was in a position to talk, P.W.12 has given an evasive reply. The question and answer recorded by trial Judge reads thus:
"Qn: Did you pose questions to know whether he was in a position to talk?
Ans: His statement was recorded in my presence."
This would only indicate that Doctor had not ascertained from deceased as to whether he was in a fit condition to make the statement. Certification undisputedly was not done on the ground that it was a routine job. Even according to the prosecution witnesses - P.W.1 to P.W.6 and P.W.8, deceased was shifted to Victoria hospital for higher treatment and the medical records of the Victoria 42 hospital, has not been produced. If same had been secured by the Investigating Officer, it would have thrown complete light with regard to not only the mental status but also physical status of the deceased as also the treatment that was extended to the deceased and his actual condition. In the absence of said vital evidence, necessarily, an adverse inference has to be drawn against prosecution and benefit of doubt if any, has to be extended to the accused. In other words, much credence cannot be extended to the purported dying declaration - Ex.P-15.
29. Insofar as his contention with regard to corroboration, we have also noticed the evidence of P.Ws.3 and 8 and same cannot be accepted for the simple reason they are all close relatives of the deceased and were interested witnesses. They also had axe to grind against accused No.1, as she had lodged a complaint against deceased and his family members. In fact, P.W.8, as already noticed above, had also been arraigned as accused in the complaint filed by accused No.1, which 43 fact is also admitted by him in his cross examination dated 03.02.2014 vide paragraph - 4.
30. It would not be out of context to notice that there has been improvisation of the case by the prosecution stage by stage and step by step. We say so for reasons more than one. Firstly, when the inquest mahazar - Ex.P-5 came to be drawn on 28.06.2012 and after recording statements of persons present, it has been noticed that there was a doubt with regard to the complicity of accused No.1 and even in column 13(a) and in column No.,7, under the head "cause for death and manner in which death has occurred", as per the opinion of the panchas, there is not even a whisper with regard to complicity of accused Nos.2 to 4. Secondly, in the panchanama - Ex.P-2 drawn on 30.06.2012, according to panchas, it is accused No.1 alone who is alleged to have poured kerosene on the deceased and lit him on fire. There is no mention of the names of accused Nos.2 to 4. In the spot mahazar - Ex.P-3, presence of accused No.1 alone is mentioned. No evidence has been 44 let in by prosecution as to when accused Nos.2 to 4 who are residents of Gerehalli came to Seethakallupalya and for what purpose. Thus, strong doubt arises about presence of accused Nos.2 to 4 in the house of deceased at the time of the incident as also their alleged participation in the act of setting deceased on fire or instigating accused No.1 to pour kerosene on deceased and to set him ablaze.
31. Apart from the contradictions above referred to as well as omissions in the evidence of P.W.4, the irresistible conclusion which will have to be drawn is the very presence of accused Nos.1 to 4 at the scene of offence is doubtful and there has been no cogent evidence placed by the prosecution to prove the said fact. In the absence of initial foundational facts laid by the prosecution, it cannot be said that even in such circumstances, Section 106 of Indian Evidence Act would come to play and burden is shifted on the defence to explain the circumstances. It is only when initial burden that is cast on the prosecution has been discharged, 45 then, burden would shift on the defence, as other wise, not. Apart from these facts, we have also noticed that as per the post mortem report - Ex.P-13, the brain was congested. If it were to be so, it gives scope for raising a doubt with regard to mental capability of the deceased making statement or in other words, deceased being mentally fit to make a statement. Ex.P-16 which is the MLC Register extract, which came to be marked through the Doctor - P.W.12 would disclose that deceased had suffered injuries all over the body including fingers. In fact, photographs - Exs.P-6 to P-10 which came to be marked through P.W.8 would indicate that left hand fingers were completely burnt as per Exs.P-8 and P-9. Back side of the body of the deceased was also completely burnt. As such, his physical condition was also in a very bad shape, which would otherwise would have had an effect or impact on his mental status. For these cumulative reasons, we have no other option but to arrive at a conclusion that this impeccable evidence available on record has been conspicuously ignored by the learned 46 Sessions Judge and as such, judgment of conviction and order of sentence cannot be sustained.
32. Though it has been contended by the prosecution that there is a strong motive against accused No.1, we reluctantly do not accept the said contention for the simple reason that indisputably the marriage between the deceased and accused No.1 was a love marriage and the alleged incident which triggered crime according to the prosecution was the deceased having attended the marriage of his relative which was not to the approval of accused No.1 and her family members. This reason being the cause for accused No.1 setting the deceased on fire would be too remote and it does not inspire confidence in us for accepting it, inasmuch as, it would not be a strong ground to attribute motive for doing away with the life of the deceased by his wife and that too when she had married him out of love by antagonizing her parents and a child having been born out of the wedlock. Except for the mundane matrimonial quarrels, there were no previous incidences of fights 47 between accused No.1 and deceased. On the other hand, complaint given by the wife viz. accused No.1 against her husband viz. the deceased had resulted in counseling being conducted to both the parties and a compromise having been arrived at, which is normal in such matrimonial disputes. In fact, it is deceased and his family members who had grouse against accused No.1 and her family members, because of complaint having been lodged by her and not the accused persons having any enmity towards deceased. In fact, that is not the case of prosecution also.
33. The three cardinal principles on which defence version is to be judged has been enunciated by the Hon'ble Apex Court in SRI RABINDRA KUMAR DEY V. STATE OF ORISSA reported in (1976) 4 SCC 233 and same can be quoted with benefit in the instant case. It has been held by the Hon'ble Apex Court that three cardinal principles of Criminal Jurisprudence as to what is the standard by which the truth or falsity of the 48 version given by the defence is to be judged and it came to be held as under :
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case.
(2) That in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) That the onus of the prosecution never shifts.
34. In fact, the Evidence Act does not contemplate that the accused should prove his case with some strictness and rigour as the prosecution is required to prove a criminal charge. In the absence of any independent witnesses being examined, the evidence of self-interested witnesses viz. P.Ws 1, 2, 3 and 8 will have to be taken with a pinch of salt in the instant case. In other words, their evidence is required to be considered 49 for the purposes of rejection which we have done, for the reasons already indicated herein above by accepting the defence version.
35. For the reasons aforestated, we proceed to pass the following :
JUDGMENT (1) Criminal Appeal is allowed.
(2) The judgment of conviction and the order of sentence dated 23.03.2015 passed in S.C.No.106 of 2013 by the Principal District and Sessions Judge, Tumakuru is hereby set aside and the appellants/accused are acquitted of the offences punishable under Sections 302, 109 read with 114 of IPC and their bail bonds stands discharged;
(3) The appellants/accused are ordered to be released forthwith, if not required in any other case.
(4) Order passed by the Sessions Court regarding destruction of M.Os.1 to 5 after expiry of the appeal period is not disturbed.
50Registry is directed to forward operative portion of this judgment to the concerned Jail authorities for release of the accused forthwith, if they are not required in any other case.
SD/-
JUDGE SD/-
JUDGE rs/pb/sp