Karnataka High Court
R Srinivasa S/O Ramappa vs State Of Karnataka on 24 November, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 24TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO. 453 OF 2012
CONNECTED WITH
CRIMINAL APPEAL NO. 585 OF 2012
CRIMINAL APPEAL NO. 453 OF 2012
BETWEEN:
R SRINIVASA
S/O RAMAPPA
AGED ABOUT 30 YEARS
R/AT DHARMARAYANAGARA
KOLAR. ... APPELLANT
(By Sri: S SHANKARAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
KOLAR TOWN POLICE
REP. BY SPP
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(By Sri: VIJAYAKUMAR MAJAGE, ADDL. SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 2.4.2012/5.4.2012 PASSED BY THE PRELIMINARY
SESSIONS JUDGE, KOLAR C/C. II ADDITIONAL SESSIONS
JUDGE, KOLAR IN S.C.NO.32 OF 2011-CONVICTING THE
APPELLANT - ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498-A READ WITH SECTION 34 OF IPC. THE
APPELLANT-ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR THREE (03) YEARS AND PAY A FINE OF
RS.25,000/- (RUPEES TWENTY FIVE THOUSAND ONLY) IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO SIMPLE
IMPRISONMENT FOR SIX (06) MONTHS-FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498-A READ WITH SECTION 34
OF IPC. THE APPELLANT- ACCUSED PRAYS THAT HE BE
ACQUITTED.
*****
CRIMINAL APPEAL NO. 585 OF 2012
BETWEEN:
SEETHAMMA
W/O RAMAPPA
AGED ABOUT 66 YEARS
R/AT DHARMARAYANAGARA
KOLAR. ... APPELLANT
(By Sri: S SHANKARAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
3
KOLAR TOWN POLICE
REPTD BY SPP
HIGH COURT BUILDINGS
BENGALURU. ... RESPONDENT
(By Sri: VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION IN S.C. No.32 OF 2011 DATED 2.4.2012 PASSED
BY THE II ADDITIONAL SESSIONS JUDGE, KOLAR - CONVICTING
THE APPELLANT- ACCUSED-1 FOR THE OFFENCES PUNISHABLE
UNDER SECTION 498(A) READ WITH SECTION 34 OF IPC AND
SECTION 302 OF IPC. APPELLANT- ACCUSED-1 IS SENTENCED
TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF
THREE YEARS AND TO PAY FINE OF RS.25,000/- AND IN
DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
OF SIX MONTHS, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498-A READ WITH SECTION 34 OF IPC. APPELLANT-
ACCUSED-1 IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.25,000/-
AND IN DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF SIX MONTHS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC. THE SENTENCES IMPOSED
AGAINST APPELLANT- ACCUSED-1 SHALL RUN CONCURRENTLY.
THE APPELLANT PRAYS THAT SHE MAY BE ACQUITTED.
*****
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THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:-
JUDGMENT
The case of the prosecution is that on 24.09.2010, at about 3.00 p.m., Seethamma, the mother-in-law of the deceased namely, accused No.1 poured kerosene oil on Lakshmi and set her on fire in connection with dowry demand. Lakshmi suffered burn injuries. PW-6, the neighbour admitted her to R.L.Jalappa Hospital, Kolar. The statement of the deceased was recorded by PW-19 - Taluka Executive Magistrate in terms of Exhibit-P28.
2. Initially, the case was registered against accused No.1 for the offences punishable under sections 498A and 307 of Indian Penal Code. After the death of the deceased, the same was altered to sections 302 and 498A of the Indian Penal Code. The investigation was taken up. Charges were framed against four accused. The accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined 21 witnesses, marked 31 exhibits along with 11 material objects. Two witnesses were examined on behalf of the defence. By the 5 impugned order, the accused Nos.1 and 2 were convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months for the offence punishable under section 498A read with section 34 of Indian Penal Code. Accused No.1 was convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.25,000/- and in default, to undergo simple imprisonment for a period of six months for the offence punishable under section 302 of Indian Penal Code. Accused No.2 was directed to deposit Rs.1,00,000/- each in the name of his two children till they attain majority and the complainant Gowramma - grandmother of the children, was entitled to draw interest for their maintenance. The sentences imposed against accused No.1 were directed to run concurrently. Accused Nos.3 and 4 were acquitted. Aggrieved by the same, accused No.1 has filed Criminal Appeal No.585 of 2012. Accused No.2 has filed Criminal Appeal No.453 of 2012.
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3. Sri.Shankarappa, learned counsel appearing for the appellants in both the cases, contends that the order of the Trial Court is erroneous and liable to be set-aside. That the Trial Court has failed to consider Ex.P27 and Ex.P28 in the right perspective. It has committed a perversity in accepting the so-called dying declaration in terms of Ex.P28. That there is no material to indicate that the deceased was in a position to speak and therefore, Ex.P28 could not come into existence. There are material contradictions in the evidence of the witnesses which do not justify the conviction. That Ex.P27, namely the information received from R.L.Jalappa Hospital is not by the Doctor as narrated by the witnesses, but has been signed on behalf of the Doctor. Hence it cannot be accepted. That there is no evidence to indicate that the deceased was admitted to R.L.Jalappa Hospital. It is further contended that the accused No.2 has since remarried.
4. On the other hand, learned Additional State Public Prosecutor disputes the same. He contends that the dying declaration squarely implicates the accused No.1 for the offence 7 punishable under section 302 of Indian Penal Code. There is nothing to be interpreted so far as the said accused is concerned. With reference to the harassment meted out by the accused No.2, there is substantial material including that of Ex.P31 namely the wound certificate of the injuries sustained by the deceased even prior to the present incident. With regard to the signature on behalf of the Doctor in terms of Ex.P27, he submits that it is wholly irrelevant and would not affect the case of the prosecution. Hence, he pleads that the appeals be dismissed by confirming the order of the Trial Court.
5. Heard learned counsels and examined the records.
6.(a) PW.1 is the panch witness to the spot mahazar in terms of Ex.P1.
(b). PW.2 is the mother of the deceased. She has stated that about ten years earlier to the incident, the marriage of the deceased was performed with accused No.2. Accused Nos.3 and 4 are the children of accused No.1. Accused No.2 is working as a Driver in Karnataka Electricity Board. At the time of the 8 engagement, a gold ring was given to accused No.2. At the time of marriage, gold ornaments like chandrahara, necklace, pair of earrings, hangings were given to the deceased as well as Rs.50,000/- in cash was given to accused No.2. After marriage, the accused and the deceased were residing together. Two children were born out of the wedlock. The son is aged about six years and the daughter is aged about four years. Initially there used to be petty quarrels between the husband and wife. Accused No.1 was constantly quarrelling with the deceased demanding more dowry. That the witness had advised them not to precipitate the issue. The accused were even threatening that accused No.2 would marry another lady if dowry is not given. After the delivery of the son, when she was returning back to her matrimonial home, once again a gold chain was given. On the date of the incident, the witness had telephoned the deceased on her mobile. The deceased did not pick up the call. Thereafter, she telephoned the neighbour of the accused and enquired about the deceased. The neighbour stated that Lakshmi had been burnt by pouring kerosene and was sent to R.L.Jalappa Hospital, Kolar in an ambulance. C.W.2, C.W.3 and others along with the 9 witness went to R.L.Jalappa Hospital. The deceased was admitted therein with burn injuries. She was not in a position to speak properly. The Taluka Executive Magistrate was recording the statement of the deceased. The deceased stated that the accused No.1 had poured kerosene on her and set her on fire. That the witness was advised to shift the deceased to Bengaluru for further treatment. When the witness was taking the deceased to Bengaluru in an ambulance, she died on the way even before they crossed Kolar. Therefore, the witness has stated that the dead body of Lakshmi was taken back to R.L.Jalappa Hospital. It is stated that on the next day, the witness filed a complaint in terms of Ex.P2 with her signature marked as Ex.P2(a). That the witness was present during the inquest over the dead body of Lakshmi.
Nothing worthwhile has been elicited in the cross- examination to disbelieve the evidence of this witness.
(c). PW.3 is the brother of the deceased. He speaks about the jewellery being given to the deceased at the time of 10 marriage. He speaks about the harassment meted out by accused No.1 and accused No.2 on the deceased.
Nothing worthwhile has been elicited in the cross- examination of this witness that would disturb the case of the prosecution.
(d). PW.4 is the Junior Engineer, PWD, Kolar, who has drawn the sketch of the scene of offence. PW.5 is a relative of the deceased who has turned hostile.
(e). PW.6 is the neighbour of the deceased. He also speaks about the harassment meted out on the deceased. That on 24.9.2010 at about 3.00 p.m., when he was sleeping in his house, he heard screams from the house of the accused. At that time, accused No.1 Seethamma opened the door of her house and came out. PW.6 entered the house of the accused. Lakshmi was burning and was struggling. That PW.6 tried to extinguish the fire with the help of a bed-sheet. An ambulance was secured and the deceased was sent to R.L.Jalappa Hospital. PW.6 has stated that the deceased was not a kind of person who would commit suicide.
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Nothing worthwhile has been elicited in the cross- examination to discredit the evidence of this witness.
(f). PW.7 is the panch to the inquest. PW.8 is the neighbour of the deceased. She states that on 24.9.2010 at about 3.30 p.m., when she was taking tailoring classes in her house, she heard the screams from the house of the accused. She and her students went there. At that time, they noticed accused No.1 coming out of the house and she stated that the deceased had set herself on fire. The witness asked accused No.1 as to what had happened to Lakshmi. Thereafter, accused No.1 was making a call on mobile and thereafter, she went away. The witness was under the impression that accused No.1 would go and bring an auto rickshaw to take Lakshmi to the hospital. However, accused No.1 did not return home. The deceased came out of the house and fell down. People were trying to extinguish the fire with the help of a gunny bag. When the witness asked Lakshmi, she said that she has not set herself on fire but accused No.1 has set her 12 on fire. Ambulance was procured and the deceased was sent to R.L.Jalappa Hospital.
Nothing worthwhile has been elicited in the cross- examination to discredit the evidence of this witness.
(g). PW.9 is a panch to Ex.P8 which is the seizure mahazar of M.O.4 - blanket.
Nothing worthwhile has been elicited in the cross- examination to discredit the evidence of this witness.
(h). PW.10 is the panch to Ex.P9 (seizure mahazar) and M.O.5 to M.O.11 recovered from the house of the accused.
(i). PW.11 is the Doctor who conducted the post mortem over the deceased Lakshmi and submitted his report in terms of Ex.P10. He has stated that rigor mortis was present all over the body. Body was smelling of kerosene and blackened with smoke. Hair on the body and near the forehead were singed. Second and Third degree burns were present all over the body, charred skin pealed here and there. 90 to 95% of the body surface was involved in the burns and is of ante-mortem in 13 nature. On dissection, he noticed that black soot particles were present in larynx and trachea. He has furnished his opinion that the death of Lakshmi was due to shock as a result of the burns sustained.
In the cross-examination, he has stated that he has noticed intravenous drip incision, but sutures were present on the inner side of the left lower limb just above the ankle. He denied that the said drip was given as sedation. That he has mentioned that the whole body surface was involved in the burns. That he has not specifically mentioned that palms were also burnt.
(j). PW.12 was the panch to Exhibits P11, P12 and P13. which are marriage card and two CDs. Ex.P14 is the seizure mahazar pertaining to marriage card (Ex.P11) and two CDs (Ex.P12 and Ex.P13).
(k). PW.13 was the Head Constable at Srinivasapura Police Station. He received a memo (Ex.P15) from the Medical Officer, Government Hospital, Srinivasapura, indicating that the deceased had been admitted to the hospital with injuries due to burns. On 23.8.2010, in terms of the memo at Ex.P15, he 14 visited the Government Hospital, Srinivasapura at about 2.30 p.m. and in the presence of the Medical Officer, recorded the statement of the injured Lakshmi as Ex.P16. Exhibits P15 and P16 were forwarded to the Town Police Station, Kolar for investigation.
In the cross-examination, he has stated that he did not register the case in his Police Station on the basis of the statement given by the deceased.
(l). PW.14 is the Scientific Officer of Forensic Science Laboratory, Bengaluru who submitted his report in terms of Ex.P17 and examined M.Os.1, 2 and 4.
(m). PW.15 is the Head Constable-cum-photographer. He took photographs of the scene of offence, marked as Ex.P18 to Ex.P24. The negatives are marked as Ex.P25.
(n). PW.16 is the Executive Engineer, BESCOM, Kolar. He issued a Certificate dated 21.12.2010 stating that accused No.2 was absent from his duty on the afternoon of 24.9.2010 till the date of evidence namely 13.12.2011 which is marked as Ex.P26. 15
(o). PW.17 is the younger brother of the mother of the deceased namely PW.2. He has stated about the marriage of the deceased with the accused. He has stated that there was a previous issue with regard to dowry between the deceased and the accused. A panchayath was convened. The matter was settled. The deceased was sent to her matrimonial home. About seven or eight months prior to the death of the deceased, Rs.50,000/- was given to the accused as additional dowry. Later on he came to know about the death of Lakshmi. When he was informed that Lakshmi was burnt by kerosene and was admitted to R.L.Jalappa Hospital, he and others went to the hospital. Doctors were present near the deceased. That the deceased was in a position to speak. The Taluka Executive Magistrate recorded the statement of the deceased. Thereafter, she was to be shifted to the hospital in Bengaluru in an ambulance. When she was being taken to Bengaluru, she died.
In the cross-examination, it is elicited that the distance between the house of PW.2 and the house of the witness is 1/4th Km. That he left Srinivasapura to come to Kolar on that day at 16 about 5.30 p.m. By about 6.00 or 6.30 p.m., they had reached Kolar. First they went to the Hospital after reaching Kolar. PW.2, PW.3, CW.3 and he had together gone to Kolar.
(p). PW.18 is the SHO of Kolar Town Police Station. He has stated that the Head Constable of Gulpet Police Station telephoned the Station and stated that Lakshmi is admitted to R.L.Jalappa Hospital with burn injuries and requested the witness to record her statement. PW.21 and the witness went to R.L.Jalappa Hospital. He obtained the memo from the Medical Officer in terms of Ex.P27. The Medical Officer intimated that the deceased cannot survive. He left PW.21 -Hemalatha near the deceased and returned to Kolar Town Police Station. A requisition was sent by him to the Taluka Executive Magistrate to record the statement of the deceased who received the same at about 5.30 p.m. Thereafter, the Taluka Executive Magistrate came to R.L.Jalappa Hospital and recorded the statement of the deceased in the presence of the Medical Officer. The same is marked as Ex.P28. Thereafter, he returned to Kolar Town Police Station and on the basis of Ex.P28, registered a case in Kolar 17 Town Police Station in Crime No.132 of 2010 and submitted the F.I.R. to the court which is marked as Ex.P29. That at about 8.00 p.m., PW.21 -Hemalatha produced M.O.4 -Blanket which was used for rapping the deceased. He secured PW.9 and CW.21 as panchas and in their presence, seized M.O.4 -Blanket under Ex.P8 mahazar and subjected the seized articles to Property Form. On 25.9.2010 at about 8.30 a.m., PW.2 - Gowramma appeared before him and gave her statement which he recorded. Since the deceased had succumbed to her injuries, he sent the requisition to the Court to include section 302 of Indian Penal Code. The requisition is marked as Ex.P30.
In the cross-examination, he has stated that the distance between the office of Taluka Executive Magistrate and the Police Station is about one furlong. That the relatives of the deceased were standing outside the hospital. That he was waiting outside the Ward when the Taluka Executive Magistrate was recording the statement of the deceased. Since he was outside the ward, he does not know who were all present near the bed of deceased Lakshmi. The palms of the deceased were burnt. He denied the suggestion that the deceased had suffered 100% burns and she 18 was not in a position to speak. He received Ex.P27 -memo from Dr.Arun. That the signature on Ex.P27 is the signature of Dr.Arun who has affixed his signature to Ex.P27 in his presence.
(q). PW.19 was the Taluka Executive Magistrate. She has stated that on 24.9.2010, she received a requisition from the Town Police Station, Kolar to record the dying declaration of Smt.Lakshmi. Accordingly, she proceeded to R.L.Jalappa Hospital, Kolar. That the deceased was admitted to the said Hospital with burn injuries. In the presence of Casualty Medical Officer, R.L.Jalappa Hospital, Kolar, she recorded the statement of the deceased in terms of Ex.P28. The contents of Ex.P28 are in the handwriting of the Police Constable. The deceased gave her statement to the witness and in turn, it was reduced to writing. After recording Ex.P28, she read over the contents of the same to the deceased. The deceased admitted the contents of Ex.P28 are true and correct. Since the hands of the deceased were burnt, she obtained the left toe impression of the deceased on Ex.P28. The same is identified as Ex.P28(a). She has affixed her signature to Ex.P28 which is marked as Ex.P28(b). That the 19 deceased was in a position to give her statement when it was being recorded. That she has obtained the signature of the Casualty Medical Officer in terms of Ex.P28(c).
In the cross-examination, she has stated that when she recorded the statement of the deceased, her relatives were present, but she has not obtained their signature on Ex.P28. She has stated that the deceased was not able to speak continuously for a long time. That she was not in a position to give her statement as per Ex.P28 in one stretch. That the witness was putting questions to the deceased and she was giving answers. She has given reply to all the questions. The witness has stated that she has not mentioned in Ex.P28 the questions that were put to the deceased. She has denied the suggestion that her questions were suggestive of the answers. She has denied the suggestion that when she visited the Hospital, the deceased was not in a position to give her statement. However, she has reiterated that her condition was serious. That she does not know the name of the Constable in whose handwriting Ex.P28 is written. The said Constable is a male Constable.
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(r). PW.20 is the Circle Inspector of Kolar Town Police Station who is the Investigating Officer in the case. He has explained in detail the manner in which the investigation was conducted by him from 25.9.2010 when he took up further investigation of the case from PW.18 V.Eshwarappa.
In the cross-examination he has stated that he has not cited the Doctor who sent Ex.P27 as a witness in this case. He has stated that he has not cited the Casualty Medical Officer, R.L.Jalappa Hospital, Kolar in whose presence Ex.P28 is recorded as a witness in this case. Nothing worthwhile has been elicited in the cross-examination to disbelieve the evidence of this witness.
(s). PW.21 is the Head Constable in Kolar Town Police Station. She has stated that on 24.9.2010, PW.18 Eshwarappa, PW.19 Mangala and herself went to R.L.Jalappa Hospital since information was received about admission of the deceased to the said hospital with burn injuries. PW.19 -Taluka Executive Magistrate was requested to record the statement of the deceased. They reached the Hospital at about 6.00 p.m. The 21 Taluka Executive Magistrate requested her to write down what Lakshmi was saying. The Taluka Executive Magistrate was asking questions to the deceased who was answering the said questions. The witness recorded the same in writing in terms of Ex.P28. The witness states that the statement is that of the deceased and its contents are in her handwriting. After recording Ex.P28, the Taluka Executive Magistrate read over the same to Lakshmi who admitted the contents to be true and correct. The hands of Lakshmi were burnt. Therefore, the Taluka Executive Magistrate obtained the left great toe impression of Lakshmi on Ex.P28 in terms of Ex.P28(a). When Ex.P28 was recorded, Dr.Arun, Casualty Medical Officer of R.L.Jalappa Hospital was present. That Lakshmi was in a fit condition to give her statement.
In the cross-examination she denies the suggestion that when they reached the Hospital on 24.9.2010 at about 5.45 p.m., the deceased was not in a position to give her statement at all. She denies the suggestion that the Taluka Executive Magistrate did not request her to write down what Lakshmi was saying. She has further stated that Dr.Arun Kumar affixed his 22 signature on Ex.P28 in the presence of PW.19 -Taluka Executive Magistrate. When Ex.P28 was recorded, PW.18 Eshwarappa, PW.19 Mangala, Doctor and the witness were present. None of the relatives of the deceased were present.
7. The defence has examined DW.1 namely accused No.2. He has narrated about his marriage with the deceased. He has stated that the deceased had attempted to commit suicide by hanging, about five or six years prior to her death. The deceased had even attempted to commit suicide by consuming bangle pieces. That the deceased was taken to Kolar and scanning was done. That on 24.9.2010 at about 3.30 p.m., his mother namely accused No.1 telephoned his office and stated that the deceased had poured kerosene on herself and set herself on fire and asked him to come immediately. He came to his house. By that time, accused No.4 and others had shifted the deceased to the Hospital in an ambulance. He and his friends went to Devraj Urs Medical College Hospital, Kolar. At that time, PW.2 and others came in a Tata Sumo Vehicle. The people who had come with PW.2 were stating to search and 23 assault the witness. Therefore, his friends advised the witness to go away. That his wife was not in a position to speak. That his wife was taken to the operation theatre and they were not allowed inside. That no demand for dowry was made from the deceased.
In the cross-examination he has admitted that he has taken a loan of Rs.1,00,000/- from the Department for the performance of the marriage of accused No.3, namely his sister. He has denied taking dowry or causing any harassment to the deceased.
8. DW.2 is accused No.1. She has stated that she had incurred a loan of Rs.3,00,000/- for performing the marriage of accused No.3. That they were not asking the deceased to bring money from her parents to repay the loan incurred by them. On 24.9.2010, PW.5 Akkalappa had come to her house. Lakshmi and PW.5 were talking to each other and were discussing various issues even with regard to her living separately. Thereafter, she went to the roof of her house to collect clothes. By the time she came down from the roof, Lakshmi had set herself on fire. The 24 witness called her neighbours. The neighbours did not come. The witness states that she went to call accused No.2 from his office. By the time she returned home, somebody had shifted the deceased to the hospital.
In the cross-examination she has stated that she does not know from whom she had incurred loan of Rs.3,00,000/- for the marriage of accused No.3. That her husband knows about the said loan. Her husband is alive. That she was not able to understand what PW.5 and deceased were talking. She has denied the suggestion that the deceased was not asking her husband to live separately. She has denied the suggestion that PW.5 did not come to the house at all. She has denied the suggestion that PW.5 did not telephone to the office of accused No.2 to call her. All the suggestions put to her have been denied.
9. Based on the evidence of the aforesaid witnesses, the Trial Court was of the view that the prosecution has established its case beyond all reasonable doubt. It accepted the dying declaration, Exhibit-P28. It negatived the contention of the accused that Exhibit-P28 should not be accepted. The 25 Trial Court was of the view that the dying declaration having been proved and the prosecution having produced substantial material to indicate the manner in which the offence was committed, the prosecution has established its case beyond all reasonable doubts.
10.(a) The first contention of the appellants' is that the intimation given to the police in terms of Exhibit-P27 cannot be accepted. It is submitted that the intimation - Exhibit-P27 would indicate that the condition of the patient was not satisfactory. Therefore, when the condition is not satisfactory, the question of recording the statement of the deceased would not arise for consideration. There has to be material to indicate that the deceased was in a fit state of mind to give the statement, but Exhibit-P27 does not disclose the same.
(b). We are unable to accept the said contention. The condition of the patient as noted at Exhibit-P27 is 'not satisfactory'. What is 'not satisfactory' has not been elicited in the cross-examination. Therefore it has to be considered as 26 meant by the witness. However, what is crucial is that it is nobody's case that she was unconscious. The evidence on record, on the contrary, indicates that she was in a position to speak intermittently. Due to the burns she had suffered, she could not speak at one stretch for a long time. That does not mean that she could not speak at all. Hence, the noting that her condition was 'not satisfactory' cannot be interpreted to mean that she could not speak, especially when she was conscious. Such a contention runs contrary to the evidence on record.
11.(a) The further contention is that Exhibit-P27 has been issued on behalf of Doctor Arun. It was the doctor alone who had to send the intimation and somebody else sending the intimation on his behalf would vitiate the case of prosecution.
(b). We are unable to accept the said contention. Exhibit-P27 is nothing more than an intimation to the Police. It is an intimation regarding the offence having been committed and the patient being admitted to the hospital. It is not 27 mandatory that the doctor alone should send the intimation. The intimation has been done on behalf of the doctor. Therefore, we are of the view that the same satisfies the requirement of law. Hence, on this ground, we are unable to accept the contention of the appellants.
12.(a) The further contention is that Exhibit-P28, the dying declaration is concocted. The evidence on record would indicate that the deceased was taken to R.L.Jalappa Hospital, Kolar at about 4.40 p.m. in terms of Exhibit-P27. After receiving the intimation, PW-18 went to the hospital along with PW-21. The Medical Officer informed that the deceased would not survive, but, however, she was in a position to speak. Thereafter, PW-18 left PW-21 near the deceased and returned to the Kolar Town Police Station. He sent a requisition to the Taluka Executive Magistrate to record the statement of the deceased Lakshmi. The Taluka Executive Magistrate, namely, PW-19 came to the hospital at about 5.30 p.m. and recorded the statement of the deceased in terms of Exhibit-P28, the details of which are in the evidence of PW-19 as stated herein above. After recording the 28 statement, he goes back to the police station and registers the FIR at about 6.45 p.m. in terms of Exhibit-P29. Thereafter, the same is dispatched to the Magistrate, which reaches him at about 8.35 p.m. on the same day. In the interregnum, the doctor having informed that the deceased must be shifted to a bigger hospital for treatment, the ambulance was secured and the deceased was being shifted to the hospital at Bengaluru. Even before they could go out of town, the deceased succumbed to the injuries at 7.30 p.m. Therefore, she was brought back to the R.L.Jalappa Hospital, Kolar.
On these facts, it is contented that the entire case of the prosecution is brought up and it is suggested that the dying declaration was prepared after the death of the deceased.
(b). The evidence led-in by the witnesses does not indicate so. PW-18 has clearly stated in his evidence that the Medical Officer had informed him that the deceased was in a position to speak. PW-19, the Taluka Executive Magistrate has stated that the deceased was not able to speak continuously for 29 a long time and that she was not in a position to give her statement at one stretch. Therefore, she was asking questions and getting the answers.
(c). We are of the view that the evidence led-in is normal, as the burns sustained on the deceased were to an extent of almost 90 to 95%. Therefore, the evidence of the Taluka Executive Magistrate is that she could not speak continuously for a long time and to give her statement at one stretch and her statement was broken down in view of her condition. Therefore, such a defence cannot be accepted, holding that the deceased was not in a position to speak and to give her statement. The Taluka Executive Magistrate has denied the suggestion put to her in the cross-examination that the deceased was not in a position to give her statement. The said statement corroborates with the evidence of PW-18, PW-21 - the Women Head Constable and also of the Medical Officer who signed on Exhibit-P28. Therefore, the contention that the dying declaration is a brought up document, which was not recorded 30 based on the statement made by the deceased, cannot be accepted.
13.(a) The further contention is that what has been recorded in Exhibit-P28 is not what the deceased had actually stated. It is contented that the contents therein has been reiterated. When such is the case, it is not the statement of the deceased at all and is a brought up document.
(b). The recording of the statement by PW-19, the Taluka Executive Magistrate would clearly negate such contentions. She has stated in her evidence that the deceased gave her statement, which in turn, was reduced to writing. After the statement was recorded, she read over the contents of the same to the deceased. The deceased admitted the contents as being true and correct. Since her hands were burnt, she obtained the left toe impression of the deceased. PW-19 has signed on Exhibit-P28. In the cross examination, it is stated that the Taluka Executive Magistrate has not mentioned in Exhibit-P28, 31 the questions that were put to Lakshmi. She denied the suggestion that the questions were suggestive of the answers.
(c). On having reconsidered Exhibit-P28 once again, we are of the considered view that the contention of the appellants that the questions put to the deceased requires to form a part and parcel of the dying declaration, is not the requirement of law. That the questions put to the deceased was suggestive to the answers is also not forthcoming from Exhibit-P28. The witness has clearly stated that after recording the statement, the same was read over and explained to the deceased and she having understood the same has accepted it to be true and correct. The statement was recorded in the handwriting of PW-
21. The Medical Officer has also signed the said document - Exhibit-P28, since he was also present when the statement was recorded. Therefore, such a contention cannot be accepted.
14. It is further contended that based on the evidence of PW-18, it was PW-21 who wrote Exhibit-P28. The scribe of Exhibit-P28, namely, PW-21 has been examined as a witness for 32 the case of prosecution. She has clearly narrated the manner in which she has recorded the statement. Therefore, the contention that since there is no attestation, the prosecution case has to be disbelieved on this ground cannot be accepted.
15.(a) It is contended that in the cross-examination, PW- 18 has stated that he was waiting outside the ward when the Taluka Executive Magistrate was recording the statement of the deceased Lakshmi. That since he was outside the ward, he does not know who was present near the bed of the deceased Lakshmi. To the next question being put to him, he denied the suggestion that he was outside the ward. He also denied the suggestion that he was not in a position to say whether Lakshmi was in a position to speak or not.
(b). This statement of PW-18 stands negated by the evidence of PW-19 and PW-21. Both the witnesses in their evidence state that they were present with the deceased at the time of recording Exhibit-P28 and also informed the presence of 33 the Medical Officer. Therefore, such a contention also runs contrary to the evidence of PW-19 and PW-21.
16.(a) The further contention is that PW-19 has stated that since the hands of the deceased was burnt, she obtained the left toe impression of the deceased. At the same time, PW- 21 has stated that the left great toe impression was obtained on Exhibit-P28. Therefore, it is contented based on the evidence of these two witnesses which toe was taken as an impression becomes doubtful.
(b). We are unable to accept the said contention. The difference of evidence of these witnesses is too trivial to affect the case of the prosecution. Whether it was the left toe or the left great toe makes no difference. Even though one witness states that it is the left toe and another states it is left great toe, but both witnesses state that it is the finger of the left leg. Therefore, even if the contention is to be accepted, it does not dent the case of prosecution in any manner, whatsoever. 34
17.(a) The next contention is that PW-19 has stated that at the time of recording the statement of deceased, there was a police constable who was a male. However, PW-21 is a female and not a male. Therefore, the evidence is not clear.
(b). Whether the constable was a male or a female does not really make any difference. What the prosecution tried to prove was that a constable was present at the time of recording of the statement. It is not even contended that the constable was a male or a female or that there was no such constable or nobody has seen the recording of the statement. It is not his argument. His argument is, one witness says it is a male, but actually it is a female. We do not intend to waste any further time in considering this contention because, it would not be of any help to the defence in any manner, with regard to the sex of the witness.
18.(a) The further contention is that PW-18 has stated that the relatives of the deceased were standing outside the hospital when the dying declaration was being recorded. PW- 35 19 has stated that when the statement was being recorded, her relatives were present. PW-21 has stated that none of the relatives of Lakshmi were present.
(b). There is a qualitative difference in the statement of the witnesses, where PW-18 and PW-19 have specifically stated that the relatives were standing outside the ward and PW-21 has stated that none of the relatives of the deceased Lakshmi were present. The statement could even be interpreted whether the relatives were present inside the ward or outside the ward. The same is distinguished from the evidence of the relatives viz., PW-2, PW-3 and PW-17 who have stated that when they reached the hospital, the Magistrate was recording the evidence of the deceased inside the ward and they were standing outside. Therefore, the presence of the relatives at the hospital has stood proved. That the relatives were not inside the ward when the statement was being recorded is also a matter of fact. Therefore, such a contention does not negate the plea of prosecution and hence cannot be accepted.
36
19.(a) It is further contended that in Exhibit-P28 there is no endorsement at all to the effect that she was in a fit state of mind to speak and to give her statement.
(b). To this effect, is the evidence of PW-19 where she has stated that the deceased was not in a position to speak continuously and was not in a position to give her statement at one stretch. That she was putting questions to Lakshmi and she was giving the answers. She has given answers to all the questions. We are of the view that the Taluka Executive Magistrate has satisfied herself with regard to the mental condition of the deceased to record her statement. In her evidence, she has also reiterated the fact of the presence of the casualty medical officer while she was recording the statement of Lakshmi. Therefore, she has satisfied herself with regard to the mental capacity of the deceased to give her statement.
(c). The fact of her physical and mental ability, is also evidenced by the statement of PW-8. In her evidence, she has stated that the accused came out of the house and told her that 37 Lakshmi has set herself on fire. When they entered the house, the deceased came out from the house and fell down and people were trying to extinguish the fire. When they asked the deceased as to why she has set fire on herself, the deceased stated that she has not set fire on herself but it is accused No.1 who has set her on fire. Therefore, it clearly indicates that she was in a fit mental condition to speak. Therefore, the contention that she was not physically and mentally fit, runs contrary to the evidence.
(d). PW-2, PW-3 and PW-17, who are the relatives of the deceased have also stated in their evidence that when they reached the hospital, she was in a position to speak and they noticed the Taluka Executive Magistrate was recording her statement.
20.(a) To this effect, learned Counsel places reliance on the judgment of the Hon'ble Supreme Court in the case of LAXMAN Vs STATE OF MAHARASHTRA reported in (2002) 6 SCC 710 and submits that it is a judgment of the Constitutional 38 Bench of the Supreme Court consisting of 5 Judges. He places reliance on para Nos.4 and 5 of the judgment.
(b). We have considered the judgment at length. The Hon'ble Supreme Court therein considered this very question of law was laid down in the judgment of PAPARAMBAKA ROSAMMA Vs State of ANDHRA PRADESH reported in (1999) 7 SCC 695. It negatived the view taken by the Supreme Court in the said judgment. It was of the view that the judgment of the Court in Paparambaka's case is not correctly decided and is not in conformity with the law laid down by the Supreme Court in the case of KOLI CHUNILAL SAVJI Vs STATE OF GUJARAT reported in (1999) 9 SCC 562.
(c). In Koli Chunilal Savji's case, it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. That before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. Reliance was placed on the earlier decision in the case of RAVI 39 CHANDER Vs STATE OF PUNJAB reported in (1998) 9 SCC 303, wherein it had been observed that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstance or material to suspect that the Magistrate had animus against the accused or was in any way interested in fabricating a dying declaration, the question of doubt on the declaration recorded by the Magistrate does not arise.
(d). Therefore, we are of the view that the judgment relied upon by the learned Counsel for the appellants amply supports the case of the prosecution. Merely because the doctor has not been examined would not by itself, doubt the veracity of the dying declaration. The Magistrate has recorded the dying declaration and he is not a interested witness. There are no circumstances pleaded or shown to the Court to doubt the bonafides of the Magistrate. The Magistrate has clearly indicated the manner in which he has recorded the dying declaration. 40 Therefore, we do not find that the said contention could be accepted.
21. On this issue, it is relevant to notice the judgment of the Hon'ble Supreme Court in the case of ATBIR Vs GOVERNMENT OF NCT OF DELHI reported in (2010) 9 SCC 1, with reference to para 22. The Hon'ble Supreme Court therein, on analyzing all the judgments on the issue of dying declaration have narrated at para 22 as follows:
"22) The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.
(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.41
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.42
(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
22. Following the aforesaid judgment also, we are of the view that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. There is no material at all to indicate that the deceased was unconscious or could never make a statement as recorded in terms of Exhibit-P-28. On the contrary, specific material have been led-in by the prosecution to indicate that she was in a fit state of mind to give her statement.
23. Under these circumstances, the contention of the appellants on this ground cannot be accepted. Having considered the dying declaration, we are of the view that the contents of the dying declaration clearly implicate accused No.1. 43 The deceased has stated that it was accused No.1 who poured kerosene and lit her on fire due to demand for bringing money towards dowry. Since the dying declaration has been proved, the prosecution has therefore established its case that it was accused No.1 who poured kerosene and lit fire on the deceased. We have no hesitation to hold that the prosecution has proved its case for the offence under Section 302 of IPC.
24.(a) So far as accused No.2 is concerned, Exhibit- P2 is the statement of PW-2, the mother of the deceased. She has narrated in detail with regard to the demand of dowry at the time of marriage with accused No.2. That harassment was being meted out to the deceased by accused Nos.1 and 2. There was consistent threat and demand being made on the deceased in order to bring more money as dowry. The prosecution also relies on Exhibit-P31 which is a wound certificate issued by the hospital at Srinivasapura. The wound certificate is dated 23.08.2010. The wound certificate would indicate that the deceased was admitted to the hospital with injuries said to have been caused on 22.08.2010 due to the assault by her husband 44 on the previous night with waist belt and closed fist over the right side of the neck, right arm and left thigh at about 10.00 p.m. Therefore, the prosecution has bolstered it under Section 498-A of IPC to establish the cruelty against the deceased.
(b). The same is countered by the appellants' Counsel who states that these are normal disputes that happens between the husband and wife and that admittedly, the said dispute was settled at the intervention of elders and no case was proceeded thereafter. He submits that no case was registered.
(c). However, we are unable to accept the contention. Whether the issue has been settled or not is immaterial. The undisputed fact is that there is one document that would indicate the previous assault by accused No.2 on the deceased. It is a matter of fact. We are concerned with the cruelty meted out on the deceased. The contents of Exhibit-P2 and Exhibit-P31 also supports the material on record that accused Nos.1 and 2 were consistently harassing the deceased for money. 45
25. Having considered the evidence and material on record, we do not find any perversity in the findings recorded by the Trial Court. The Trial Court has rightly appreciated the material and evidence on record and has come to a just and fair conclusion. We do not find any error in the Trial Court that calls for any interference. The sentence awarded by the Trial Court is just and commensurate with facts and law. Hence, we do not find any ground to interfere with the judgment of the Trial Court.
26. Hence, the following:
ORDER
(i) Criminal Appeal Nos.453 of 2012 and 585 of 2012 are dismissed.
(ii) The judgment of conviction dated 02.04.2012 and order on sentence dated 05.04.2012 passed by the Principal District and Sessions Judge, Kolar C/c II Additional District and Sessions Judge, Kolar in S.C. No.32 of 2011 is hereby affirmed. 46
(iii) The accused to serve the remaining period of sentence.
(iv) The accused are entitled to the benefit of set off in terms of Section 428 of Cr.P.C. for the period of detention undergone in this case.
(v) The sentences shall run concurrently.
Sd/- Sd/-
JUDGE JUDGE
Bss.bgn/-