Karnataka High Court
Bude Sab vs State Of Karnataka on 4 November, 2024
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 1055 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1055 OF 2017 (C)
BETWEEN:
BUDE SAB
S/O RAJASAB
AGED ABOUT 36 YEARS
BMTC DRIVER
CHAGALATTI VILLAGE
JALA HOBLI
BANGALORE NORTH TALUK
...APPELLANT
(BY SRI. N.S. SAMPANGI RAMAAIAH, AMICUS CURIAE
VIDE ORDER DATED 28/10/2024)
Digitally signed by
HARIKRISHNA V
Location: HIGH AND:
COURT OF
KARNATAKA STATE OF KARNATAKA
BANGALURU POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-1
...RESPONDENT
(BY SRI. VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT, ORDER OF CONVICTION AND
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CRL.A No. 1055 of 2017
SENTENCE DATED 26.4.2017 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI IN
S.C.NO.15040/2014 -CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 498(A) & 302 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K) This appeal by the convicted accused directed against the judgment of conviction and order of sentence dated 26.04.2017 passed in S.C.No.15040/2014 by the V Additional District and Sessions Judge, Devanahalli, wherein the learned Sessions Judge convicted the accused for the offences punishable under Sections 498A and 302 of IPC and sentenced him to undergo rigours imprisonment for a period of one year and to pay a fine of Rs.5,000/- for the offence punishable under Section 498A of IPC. Further, he was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC.
2. The factual matrix of the prosecution case is as follows:
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 Deceased in this case Smt.Mamtaj is the daughter of late Dawal Sab and Smt.Bibi. She got married accused 11 years prior to the incident. Out of their wedlock, they begotten two children aged about 10 and 5 years respectively. They were residing in the rented house of PW.1-Ravi at Chagalahatti village. It is the further case of the prosecution that the accused was addicted to the bad vices like consuming alcohol. He used to consume alcohol daily and ill-treat deceased Smt.Mamtaj. As such, there were quarrel between them on daily basis. This being the scenario, in the intervening night of 25.04.2014 & 26.04.2014, the accused came to home by consuming liquor and quarrelled with the deceased. At the early morning of 26.04.2014 at about 4.30 a.m., the accused picked up quarrel with deceased by threatened her that, if she is alive, then he cannot marry another lady. As such, he would kill her.
Accordingly, he took a Can containing Kerosene, poured the same on her person and lit fire. Due to which, she sustained burn injuries, shouted for help. By hearing her hue and cry, the neighbours i.e., PW.1 to PW.4 came to her house and made an effort to rescue her. Thereafter, they shifted her to a private -4- NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 Hospital and from there, she was taken to Victoria Hospital, Bengaluru and admitted as inpatient.
3. Subsequently, on 26.04.2014, based on the information provided by the Hospital Authority, the Inspector of the respondent-Police i.e., PW.15 visited Victoria Hospital, Bengaluru and recorded the statement of deceased Mamtaj as per Ex.P10 in the presence of the duty Doctor i.e., PW.12. Thereafter, he sent a requisition to PW.13 i.e., the Taluk Executive Magistrate to record the dying declaration of injured Mamtaj. Thereby, PW.13 visited Victoria Hospital, where the injured was admitted and recorded the dying declaration of the deceased in the presence of the duty Doctor as per Ex.P12 at about 5.00 p.m. Based on Exs.P10 and 12, PW.15 registered FIR against the accused for the offence punishable under Section 307 of IPC in Cr.No.74/2014 as per Ex.P18. During the course of treatment, the said Mamtaj succumbed to the burn injuries on 30.04.2014 at about 11.45 p.m. As such, PW.15 sent a requisition to jurisdictional Magistrate for permission to invoke Section 302 of IPC. Accordingly, permission was accorded by the learned Magistrate and Section 302 of IPC was invoked in the said crime. Later, PW.15 conducted the -5- NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 investigation by drawing inquest panchanama of the dead body as per Ex.P8, though PW.9-Doctor conducted autopsy over the dead body and issued post mortem report as per Ex.P6. Subsequently, PW.15 conducted investigation by drawing spot mahazar as per Ex.P1 so also by recording the statement of the material witnesses and by drawing the other relevant mahazars. After obtaining necessary documents from the concerned Authorities, the investigation officer laid charge sheet before the Committal Court against the accused for the aforesaid offences.
4. After committal of the case before the learned Sessions Court, the learned Sessions Judge framed the charges against the accused for the offences punishable under Sections 498A and 302 of IPC and read over the same to him. However, the accused denied the charges and claimed to be tried.
5. In order to prove the charge levelled against the accused, before the trial Court, the prosecution examined in total 15 witnesses i.e., PW.1 to PW.15 and got marked 27 documents as per Exs.P1 to P27 and also got identified 4 -6- NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 material objects as MO.1 to MO.4. The accused got marked one document as Ex.D1.
6. After completion of the prosecution evidence, the learned Sessions Judge recorded statement under Section 313 of Cr.P.C., wherein the incriminating portion of the evidence of material witnesses read over to the accused and the accused denied the same. The defence of the accused is one of total denial and that of false implication. However, the accused has not examined any witness on his behalf.
7. After assessment of the oral as well as documentary evidence available on record, the learned Sessions Judge convicted the accused for the charges levelled against him and sentenced him as stated supra. The said judgment is challenged under this appeal.
8. We have heard Sri N.S.Sampangi Ramaiah, learned Amicus Curiae for the accused so also Sri Vijayakumar Majage, learned SPP-II for the respondent-State and perused the records i.e., the impugned judgment and the record secured from the trial Court.
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9. It is the primary contention of the learned Amicus Curiae for the appellant that the judgment and sentence challenged under this appeal suffers from perversity and illegality since the learned Sessions Judge has failed to appreciate the evidence on record in a right perspective. He would contend that the material witnesses i.e., PW.1 to PW.4 partially turned hostile to the prosecution case. In order to prove the guilt of the accused, the prosecution totally relied on the evidence of PW.6-the eye witness and Exs.P10 and P12 i.e., two dying declarations. According to the learned counsel, there are much contradiction in two dying declarations i.e., Exs.P10 and P12. As such, those declarations cannot be relied on to convict the accused. He would also contend that there is a delay in recording the statement of PW.6. Though PW.6, who is a police constable, said to be an eye-witness to the incident, his statement was recorded after two days from the date of alleged incident. As such, his version cannot be relied on to convict the accused. He would further contend that the dying declaration- Ex.P12 though certified by the duty Doctor of Victoria Hospital, the said Doctor has not been examined by the prosecution. Further, there is a clear contradiction in respect of thumb -8- NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 impression of the deceased. Apart from that, prosecution also failed to examine the scribe of Exs.P10 and 12. In such circumstance, there is a clear shadow on the veracity of Exs.P10 and P12.
10. Learned Amicus Curiae would also contend that there are contradictions in the evidence of the family members of the victim, i.e., PW-7 and PW-8, and as such, their version cannot be relied upon. Much less, they are the interested witnesses in the prosecution case and as such, their evidence cannot be believed. Accordingly, he prays to set aside the impugned judgment and to allow this appeal.
11. Refuting the above submission, learned SPP Shri Vijayakumar Majage would submit that the judgment of conviction and order of sentence rendered by the Sessions Judge does not suffer from any perversity or illegality and the learned Sessions Judge after meticulously perusing the evidence as well as the material on record, has passed well reasoned judgment, which does not call for any interference. He would further contend that this case is based on the evidence of eye-witness i.e., PW-6, so also two dying -9- NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 declarations i.e. Exs.P10 and P12. PW.15 - Investigating Officer has recorded Ex.P10, the initial dying declaration of the deceased, at that time, PW.12-Doctor was very much present, and issued fitness certificate of deceased. Both these witnesses have categorically deposed about the genuineness of Ex.P10. As such, the same is proved beyond reasonable doubt. Nevertheless, another dying declaration at Ex.P12 is concerned, PW.13, i.e. the Taluk Executive Magistrate has deposed that the victim was very much conscious at the time of deposing Exhibit P12. Hence, according to the learned SPP, there is no reason to discard the evidence of PW-15, PW-12 and PW-13. According to him, on a conjoint reading of Exhibit P-10 and Exhibit P-12 along with the evidence of PWs.12, 13 and 15, the prosecution has successfully proved both the dying declarations i.e., Exhibit P-10 and Exhibit P-12. He would also contend that the evidence of PW-1 to PW-4, i.e. the neighbors, have also deposed that soon after the incident, PW-1 informed them about the burn injuries sustained by deceased Mamtaj and they all visited the spot. Thereafter, PW-2, along with the accused, shifted the injured to the hospital. It is the specific evidence of PW-2 and PW-3 that while shifting injured to the
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 hospital, the accused jumped from the said vehicle and escaped. As such, the said conduct of the accused itself shows that he is the perpetrator of the crime. The learned SPP would also contend that the evidence of PW-7 and PW-8, i.e. the elder brother and the mother of deceased, corroborate each other and they have categorically stated about the ill-treatment meted out by the accused to the deceased before her death. Further, he contends that an oral declaration was made by the deceased to PW-7 and PW-8 while she was at the hospital. Hence, the learned SPP submits that, all these circumstances clearly point out the guilt of the accused beyond the reasonable doubt and accordingly the learned Sessions Judge has convicted the accused for the charges leveled against him. Hence, he prays to dismiss the appeal.
12. Having heard the learned counsel for the respective parties so also having perused the documents and evidence made available before us, the points that would arise for our consideration are:
"i) Whether the judgment under challenge in this appeal suffers from any perversity or illegality?
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ii) Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 302 and 498A of IPC?"
13. We have carefully examined the entire evidence on record and also the documents placed by the prosecution. In order to prove the homicidal death of deceased, the prosecution has relied on the evidence of Doctor-PW9 who conducted autopsy over the dead body of deceased Mamtaj and issued Post Mortem report as per Exhibit P-6. On a careful perusal of Exhibit P-6, the Doctor has opined that the cause of death is due to septicemia as a result of burn injuries. Apart from the evidence of PW-9 and Exhibit P-6, the prosecution also relied on the Inquest Panchanama conducted over the dead body of the deceased as per Exhibit P-8 as well as the evidence of PW11-the inquest mahazar witness. On a perusal of Exhibit P-8, there is multiple burn injuries found on the dead body of deceased. Further the doctor opined that those injuries are ante mortem in nature. Hence, on a conjoint reading of Exhibit P-6 and Exhibit P-8 along with the evidence of PW-9, PW-11 and PW-12, we are of the considered view that the
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 prosecution has successfully proved the homicidal death of deceased.
14. In order to connect the accused to the homicidal death of the deceased, the prosecution mainly relied on the evidence of PW-6 eye-witness to the incident so also dying declarations at Exhibit P-10 and Exhibit P-12. On a careful perusal of the evidence of PW-6, the neighbor of the deceased who is a police constable, has categorically deposed that on the date of incident, he was in his house and by hearing the hue and cry of deceased, he had seen the incident of Galata in the house of accused, wherein the accused was quarrelling with his wife Mamtaj and thereafter, he poured kerosene on her person and set her blaze. Though the learned amicus curiae has argued that there is delay of two days in recording the statement of PW-6, however in his cross-examination nothing worthwhile has been elicited from the mouth of this witness to discard his testimony. Apart from the evidence of PW-6, the prosecution also relied on the evidence of PW-1 to PW-4, however, PW-4 completely turned hostile. On perusal of the evidence of PW-1 to PW-3, all these witnesses have deposed that on the date of incident, at about 4.30 a.m., the accused
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 himself came to their house and informed that deceased caught accidental fire. Immediately they visited the house of the accused. At that point of time, the deceased was found with burn injuries. Thereafter, among them, PW-2 and PW-3 have shifted the deceased to Victoria Hospital. It is pertinent to mention at this juncture that PW-2 and PW-3 have categorically stated that in their evidence that while shifting deceased to the hospital, the accused was very much present and on the middle of the way, he jumped out from the vehicle and escaped. Thereafter, the police caught hold him on 29.04.2014. The evidence of PW-1 to PW-3 coupled with the evidence of PW-6 - eye-witness and the conduct of accused after incident creates a clear suspicion on him. Further, the prosecution also relied on the initial statement given by the deceased as per Exhibit P-10 in the hospital before PW-15, i.e. the Investigating Officer.
15. We have carefully perused Exhibit P-10. The same depicts the deceased has deposed before PW-15 that the relationship between accused and deceased was strained one and the accused was continuously harassing her physically and mentally in order to get into a second marriage. Further, it is also stated that the accused was addicted to bad vices. He
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 used to consume alcohol and thereafter assault her physically. Before recording the said statement by PW-15, Doctor PW-12 examined the deceased /victim and opined that she was in a fit condition to give such statement as per Exhibit P-10(d).
16. After recording Exhibit P10, PW-15 had requested PW-13-Taluk Executive Magistrate to record the dying declaration of deceased by sending requisition as per Exhibit P-11. Based on such requisition, PW-13 visited Victoria Hospital and subsequently, recorded the dying declaration of deceased as per Exhibit P-12. While recording the said dying declaration, the Duty Doctor of Victoria Hospital was present. No doubt the prosecution has failed to secure and examine the said Doctor. Nevertheless, on a careful perusal of the contents of Exhibit P- 10 and Exhibit P-12, there are no such contradictions forthcoming in respect of the alleged act committed by the accused. Moreover, PW-12 / Doctor, PW-13 /Tahsildar and PW- 15 / Investigating Officer, have categorically stated before the Court the victim was very much conscious at the time of giving both the statements as per Exhibit P-10 and Exhibit P-12. The said aspect was not seriously disputed by the learned Defence Counsel.
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17. We have carefully gone through the cross- examination conducted by the defence counsel in respect of PW-13 and PW-15. Except denial of their presence in the hospital and the recording of the statement of the deceased as per Exhibit P-10 and Exhibit P-12, nothing worthwhile has been elicited from their mouth to discard the testimony of these witnesses. In such circumstances, the minor contradictions pointed out by the learned Amicus Curiae in Exhibit P-10 and Exhibit P-12, in our considered view, do not go to the root of the prosecution case. As such, these dying declarations cannot be discarded.
18. Further, as discussed supra, the evidence of PW-1 to PW-3 coupled with the evidence of PW-6, the eye-witness, also strengthens the version of Exhibit P-10 and Exhibit P-12. There is no reason as such to depose against the accused by PW-6, the neighbor who is an eye-witness to the incident. At the cost of repetition, it is appropriate to say that PW-2 and PW-3 have clearly stated that while shifting the injured wife to hospital, accused jumped from the said vehicle and escaped. This behavior of the accused clearly creates a doubt about his conduct that except him, no other person is the perpetrator of
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 the crime. Though the defence has been raised by the accused that, the deceased committed suicide by pouring kerosene and setting her ablaze, to prove the said defense, the defense counsel has neither examined any witness nor got marked any documents. Even the accused failed to explain such situation in his 313 statement. In such circumstances, the defence of the accused is not a probable one.
19. Per contra, as rightly contended by the learned SPP, the prosecution relied on the evidence of PW-7 and PW-8 who are none other than elder brother and mother of the deceased. These witnesses have categorically stated that ever since from the date of marriage of accused and deceased except for few years, the relationship between the accused and deceased was a strained one and the accused used to harass the deceased mentally and physically. Further, they have also stated that after the incident, while deceased was taking treatment in the hospital, she has narrated the incident with them that the accused has poured kerosene on her and set her ablaze and caused burn injuries. This evidence of PW-7 and PW-8, once again corroborates with the contents of Exhibit P-10 and Exhibit P-12. There is no reason to doubt the credibility of the
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 evidence of PW-7 and PW-8 so also the evidence of PW-13 and PW-15 who have recorded the dying declaration as per Exhibit P-10 and Exhibit P-12. The prosecution also proved the recovery of MO-1 to MO-4, i.e. empty kerosene bottle / plastic can, match box, partly burned nighty and petticoat in the house of accused as per Exhibit P-1. Recovery of all these articles once again clarifies that, the deceased sustained burn injuries at her matrimonial house. The accused being the husband of the deceased is duty bound to explain the death of deceased, since the same is caused in his house. The presence of accused at the time of the incident was not disputed by the accused. In such circumstances, as per the provision of Section 106 of the Indian Evidence Act, burden cast on the accused to explain the circumstances that if he has not committed the murder of deceased, who else has caused the death of deceased or the reason for the death of the deceased. In the case on hand, the accused has totally failed to explain such circumstances. Hence under provision of 106 read with Section 114 of the Indian Evidence Act, in the absence of explanation from the accused, presumption can be drawn against the accused.
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20. Though the learned amicus curia vehemently submitted that, the time of admission of injured to Victoria hospital incident was sated that the injured was sustained accidental burn injury. Hence the prosecution case cannot be accepted and false implication of the accused on subsequently cannot be ruled out. However it could be seen from the record that at the time of admission the history of incident was not narrated, by injured or family members. Some other persons brought her to hospital and they might have given such history. It is also contended that, PW-12 doctor who was present at the time of recording of dying declaration, has deposed injured put her thumb mark on Exhibit P-10. However evidence of I.O. reads, on Exhibit P-10 the left toe impression was obtained. This contradiction itself is not sufficient to reject the testimony of PW12 in toto, since other martial witness PW-13 has deposed in respect the recording of Exhibit P-10 and P-12. The Hon'ble Apex Court in case of Neem V/s State of U.P. In Crl. Appeal 1978/2022 dated 05/03/2024, the following guidelines in a case involved in the multiple dying declaration (para 6) as under:
"(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
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(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.
(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 the 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 eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(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."
21. Applying the above guidelines of the Hon'ble Apex court to the facts and circumstances, this case, to interpret the dying declaration in light of scrounging facts of circumstances and corroborate evidence of PW-10, 12 and 13, it could be gathered that the deceased was in fit state of mind to deposed statement. Nevertheless, the evidence of PW-1 to 4 and more
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 particularly 2 and 3 while shifting the injured to hospital the accused jumped from the vehicle, clearly established the fact that he must have committed crime and he is the perpetrator of the crime. The defence raised by the accused the deceased her self committed suicide it cannot be accepted for the reason no such defence evidence or material placed by the accused to prove the same.
22. The Hon'ble Apex Court in the case of The State of Maharastra V/s Nisar Ramzan Sayyed AIR 2017 SC 2363 emphasis the principle enumerated in the famous legal maxim law of evidence i.e., Nemo Moriturus Praesumitur Mentire which means a man will not meet his maker with a lie in his mouth. Our Indian Law also recognizes this fact that " a dying man seldom lies" or in other words " truth sits upon the lips of dying man."
23. Bearing in mind the above emphasis by the Hon'ble Apex Court in respect of the truthfulness of dying deceleration, and considering the over all evidence of record apart form Exhibit P-10 and Exhibit P-12, we are of the considered view that the prosecution has proved the case against the accused
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NC: 2024:KHC:44145-DB CRL.A No. 1055 of 2017 beyond all reasonable doubt. The learned Sessions Judge has meticulously examined all the circumstances and passed the impugned judgment, which does not call for any interference by this Court. In that view of the matter, we answer the points raised above in the negative and proceed to pass the following:
ORDER
i) Criminal Appeal No.1055/2017 filed by the appellant/accused is hereby dismissed.
Consequently, the judgment of conviction and sentence dated 26.04.2017 imposed by the V Additional District and Sessions Judge, Devanahalli in S.C.No.15040/2014, is affirmed.
ii) Registry is directed to pay a Retainer fee of Rs.20,000/- to Shri N.S. Sampangiramaiah, the Amicus Curiae who has assisted in this matter.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(RAJESH RAI K) JUDGE VM - paragraphs 1 to 9 KS - paragraphs 10 to till end List No.: 1 Sl No.: 16