Karnataka High Court
Sri Shivanna vs State Of Karantaka on 29 July, 2015
Bench: Mohan M. Shantanagoudar, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.522/2011
BETWEEN:
Sri Shivanna
S/o Papaiah
Aged about 41 years
R/o Chikkadanahalli Village
Hunsur Taluk
Mysore District. .. APPELLANT
(By Sri I S Pramod Chandra,Adv.)
AND:
State of Karnataka
By Bilikere Police Station
Hunsur Taluk
Mysore District
Rep. by State Public Prosecutor. .. RESPONDENT
(By Sri K R Keshavamurthy, Adv.)
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This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the Judgment dated
15/16.09.2010 passed by the IV Addl. District and S.J.,
Mysore, in S.C.NO.288/2008 - convicting the
appellant/accused for the offence punishable under
Sections 498A, 302 of IPC.
This Criminal Appeal having been reserved and being
listed for pronouncement today, Budihal R.B., J., delivered
the following:
JUDGMENT
The judgment and order of conviction dated 15.09.2010 passed by the IV Addl. District and Sessions Judge Mysuru in S.C.NO.288/2008 has been called in question in this appeal by the appellant-accused.
2. Brief facts leading to filing of the case are that one Smt.Siddamma @ Rukmini W/o. Shivanna resident of Chikkadanahalli in Hunsur Taluk gave her statement as per Ex.P-17 stating that her native place is Paduvarahalli but since 16 years she is residing in her husband's house at Chikkadanahalli. They are having three daughters, first daughter is Chandini, aged 13 years, second daughter 3 Mamatha, aged 11 years and third daughter Poornima aged 9 years. The eldest daughter Chandini is staying in the house of her grand father at Paduvarahalli. Herself, her husband and other two daughters are together staying in Chikkadanahalli. The ancestral land of three acres has been sold by her husband and husband's brothers at the rate of Rs.80,000/- per acre. And, from the sale proceeds, they performed the marriage of their sisters and the remaining amount was shared between them. The amount of Rs.15,000/- fallen to the share of her husband and the same was kept in the Paduvarahalli post office in the name of Chandini. Her husband addicted to vices and he lost everything. Since 7-8 years, he is addicted to drinking of alcohol and during the night he used to pick-up quarrel with her, he was assaulting and abusing her and giving all sorts of ill-treatment. Thinking that, one or the other day, he will correct himelf she was leading her life. Her husband was coming to the house in the drunken state insisting Siddamma to withdraw the amount kept in the 4 post office otherwise she has to bring the amount from her parental house and if she did not bring the amount he threatened her to go out of the house. He has also threatened her that if she does not withdraw the amount in the post office nor brings the amount from her parental house, he will not spare her and he will commit her murder.
Then, on 03.08.2008 she went to her parental place and informed about the ill-treatment of her husband to her parents. The parents consoled her and on the same day, they sent her back to her husband's place. On 04.08.2008 at 9.00 p.m. as usual the husband-accused came to the house in the drunken state and started abusing Siddamma stating that as she has not withdrawn the amount from the post office, he is going to finish off her on that day. Thinking that it is his routine to abuse, she kept mum. But, during night at 12.30, he pushed her from the house and insisted to go to her parental place to bring the amount. Then she sat on the khatta and weeping. Within short time, 5 her husband-accused came nearby the khatta and abused her in the filthy language and held her hair and pulled her into the house and brought the kerosene oil can, poured the kerosene and lit fire to her. Siddamma sustained burn injuries all over the body and when she cried because of the burn injuries, Shivanna (the husband) ran away from the house and Mamatha and Poornima (the daughters of siddamma) put water on her and extinguished the fire. In the mean while, Sannamaraiah and his wife Madamma who are the neighbours also came and treated her. Thereafter, with the help of Dinesh and Narayan she was taken to K.R.Hospital for treatment. She requested the police that as her husband Shivanna poured kerosene and lit fire to her and caused the burn injuries and thereby made an attempt to commit her murder, action may be taken against him. The said statement of Siddamma was treated as complaint, on the basis of which FIR was registered in Bilikere Police Station Cr.No.211/2008 against the accused 6 for the offence punishable under Section 498A and 307 of IPC .
It is the further case of the prosecution that the statement of Siddamma was also recorded by the Tahasildar and Taluka Executive Magistrate, Mysuru as per Ex.P-16 wherein also she has stated the same thing as against the husband-accused. Then on 8.8.2008, the hospital authorities of K.R. Hospital, Mysuru intimated the Police that Siddamma expired on that day at 1.00 p.m. as per the intimation marked at Ex.P-1. Accordingly, on 8.8.2008 the police sub-Inspector made a requisition before the JMFC Court at Hunsur requesting to insert an offence under Section 302 of IPC in the case against the accused.
3. The investigating officer after conducting and completing the investigation filed the charge sheet against the accused for the offences punishable under Sections 498A and 302 of IPC. Accordingly, the Trial Court framed 7 the charge against the accused for the said offences and posted the matter for trial.
4. To prove its case, prosecution examined in all 15 witnesses and got marked the documents Exs.P-1 to P-43 and material objects MOs.1 to 6. On the side of the defence, no witnesses were examined nor any documents got marked.
5. After considering the materials on record, both oral and documentary, ultimately the Trial Court convicted the accused for the said offences and sentenced him to 2 years imprisonment with a fine of Rs.2000/- for the offence punishable under Section 498A of IPC and imposed life imprisonment and fine of Rs5,000/- for the offence punishable under Section 302 of IPC.
6. P.W-1 is the doctor who issued the death intimation as per Ex.P-1.
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P.W-2 Mamatha and P.W-3 Poornima are the daughters and eye-witnesses to the incident. They have not supported the case of the prosecution and turned hostile.
P.W-4 Madamma, who is the cousin of the accused also turned hostile and not supported prosecution case.
P.W-5 Dinesh and P.W-6 Narayan, who are said to have shifted the injured Siddamma for hospital for treatment have also tuned hostile and not supported prosecution case.
P.W-7 Chandini (the eldest daughter of the deceased Siddamma,) who was supposed to speak about the motive for the incident has also turned hostile and not supported prosecution case.
P.W-8 KR.Purushottama is the Section Officer CHESCOM who speaks that there was power supply in Chikkadanahalli and there were no objections from anybotdy that there was no power supply.
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P.W-9 Taluka Executive Magistrate who has recorded dying declaration of Siddamma as per Ex.P-16 P.W-10 Dr.B.S.Madhu , has deposed that Tahasildar, who came to record the statement of injured, asked him as to whether the injured is in a position to give the statement and he gave his opinion that she is in a fit condition to give her statement and accordingly her statement was recorded as per Ex.P-16 in his presence.
P.W-11 is the ASI, who registered the second FIR after the death of Siddamma and conducted the inquest Mahazar proceedings as per Ex.P-18.
P.W-12 is the uncle of the accused. He has turned hostile and not supported the case of prosecution regarding motive.
P.W-13 is head constable who apprehended the accused.
P.W-14 is the PSI, who recorded the statement of the victim as per Ex.P-17 and registered the first FIR. 10
P.W-15 is the Investigating Officer, who conducted the investigation and laid the charge sheet.
7. We have heard the arguments of the learned counsel appearing for the appellant-accused and also leaned SPP-2 Sri Keshava Murthy.
8. Learned Counsel for the appellant submitted that as per the opinion of the doctor, Siddamma was having 50% -55% burn injuries on her body and she was not in a position to give her statement either before the Police or before the Taluka Executive Magistrate. He submitted that Exs.P-17 and P-16 said to be the dying declarations of deceased Siddamma are the concocted documents created in collusion with the police only with an intention to implicate the accused in the case. Learned counsel submitted that the evidence of P.W-2 and 3 (the daughters of deceased Siddamma) clearly shows that Siddamma was having stomach pain and when it became intolerable, she 11 herself poured kereosene and lit fire to herself. Learned counsel has submitted that even looking to the evidence of the neighbours and the other prosecution witnesses, they clearly show that husband and wife were living happily. He, submitted that the Trial Court has not appreciated the oral and documentary evidence properly and wrongly held that the dying declarations Exs.P-16 and P-17 have been proved satisfactorily and wrongly convicted the accused. Hence, submitted to allow the appeal and to set-aside the judgment and order of conviction of the Trial Court.
9. Per contra, Sri Keshavamurthy, learned SPP-2 during the course of his arguments submitted that the evidence of P.W-10 doctor and P.W-9 The Taluka Executive Magistrate show that the dying declarations of the deceased Siddamma were recorded as per Exs.P-16 and P-
17. There was no reason for the Tahasildar and the Government Doctor to create false documents stating that Siddamma gave such statements before them. He 12 submitted that looking to the contents of Exs.P-16 and P- 17, they are consistent with each other and they clearly show that as Siddamma was not ready to withdraw the amount in the post office to give it to accused, he gave ill- treatment to her and poured kerosene and lit fire to her. He further submitted that even though the daughters, neighbours have not supported the prosecution case and turned hostile, but as the dying declarations were satisfactorily proved, the Trial Court has rightly convicted the accused and hence, there is no illegality or infirmity in the judgment of the Trial Court and it does not require any interference by this Court. Hence, submitted to dismiss the appeal.
10. We have perused the Oral evidence of the prosecution witnesses, documents and also the judgment and order of conviction passed by the trial Court to base the conviction.
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11. Perusing the materials on record, the three daughters of deceased Siddamma and the neighbours of Siddamma have not supported the prosecution case. The material evidence is two dying declarations said to have been given by Siddamma as per Exs.P.16 and P.17. Perusing these two documents, they are recorded on 5.8.2008 itself. Ex.P.16 is recorded by P.W9 (the Taluka Executive Magistrate) in the presence of P.W10 (Dr. B.S. Madhu of K.R. Hospital, Mysuru). Ex.P.17 is recorded by P.W14 B.R. Pradeep, PSI, in the presence of P.W10.
12. Looking to the evidence of P.W9 the Taluka Executive Magistrate, he has deposed in his evidence that on 5.8.2008, he received a requisition from Bilikere police station requesting him to record the dying declaration of one Siddamma @ Rukmini who has been admitted in K.R. Hospital with burn injuries. On 5.8.2008 mid night at 12.25, he went to the hospital and met a duty doctor and asked his permission for recording the statement of 14 Siddamma. The duty doctor took him to the burns ward and spoken to Siddamma and told that she is in a position to give her statement and that he can record her statement. Then he recorded the statement of Siddamma in the prescribed format. He has stated that Siddamma gave her statement as per Ex.P.16 and his signatures are P.16(a) to (c). When he recorded the said statement, P.W10 who was also present, had confirmed that Siddamma was in a position to give her statement. In his cross examination, he deposed that looking to the requisition letter, he cannot say as to whether it reached him in the midnight at 12.10 or in the afternoon at 12.10. At the time of recording the dying declaration, except the doctor, no other persons were present. He denied the suggestion that by the time he went to the injured, sedative injection was given to her and she was in an unconscious state. He denied the further suggestion that when he went to the hospital, Siddamma was not in a position to give her statement and he has not at all went to 15 the hospital nor recorded the statement of Siddamma. He denied the further suggestion that the thumb impression on Ex.P.16 is not her thumb impression. He denied the suggestion that in Ex.P.16, original time is scored out and there is overwriting mentioning different time.
13. P.W.14 B.R. Praveen the PSI of Bilikere police station deposed in his evidence in the examination in chief that on 5.8.2008 when he was on duty, he received the wireless message from Devaraja police station that Siddamma @ Rukmini of Chikkadanahalli admitted to K.R. Hospital for the burn injuries and she is taking treatment. Accordingly he came to Mysuru city and obtained memo from the Devaraja Police Station and went to hospital and met Siddamma. He met duty doctor who after examining Siddamma told that she is in a position to give statement and he recorded the statement and as the fingers were burnt, he took left toe mark on the said statement. When he recorded the statement Ex.P.17, P.W-10 (the doctor) 16 was also present and the doctor put his shara and signed. He gave the requisition to the Tahsildar and requested him to record the statement of Siddamma and accordingly, Tahsildar recorded dying declaration of Siddamma and gave it to him. On the same day, he went to the spot, secured the panch witnesses. Dinesh, the panch witness shown the spot and he drew the spot mahazar as per Ex.P.8. From the spot, he saw one plastic can, one match box having plastic matchstick, one half burnt light green nylon saree. One half burnt petty coat, one burnt blue colour blouse and blue colour broken bangle pieces. In the cross examination, he denied the suggestion that when he went to the spot, many people moved at the said place and there were foot marks. He denied the further suggestion that the neighbours informed him that as Siddamma was mentally depressed, she herself poured kerosene on herself and lit fire to her. He denied the suggestion that Siddamma has not given statement before him as per 17 Ex.P.17. He has not obtained any documents to show that P.W10 (doctor) was on duty on that day.
14. P.W.10 Dr. B.S. Madhu in whose presence both the dying declaration under Exs.P-16 and P-17 are said to have been recorded deposed in his evidence in examination in chief that on 5.8.2008 when he was on duty in the burns ward, morning at 11.30, the Tahsildar came and asked his permission for recording the statement of the injured. After examining the injured, he told that she is in a position to give statement, then Tahsildar recorded her statement in his presence and he certified as per Ex.P.16(b). On 5.8.2008, morning at 11.30 a.m., the police came to record the statement of Siddamma and he examined Siddamma and told the police that she is in a position to give her statement. He has seen the statement Ex.P.17 and P.17(a) is his endorsement and signature. After giving the statement, the injured put her toe mark on the said statement. He again deposed that the Tahsildar 18 recorded the statement in the noon time from 12.30 to 1.00 p.m. In his cross examination, he deposed that as the injured was crying because of the pain, they gave injunction to her. By such injunction, the person will not be come unconscious but for some, there will be pain and thereafter, the injured will be alright. The injured was having 50% to 55% burn injuries. He has not given case sheet either to police or to the Tahsildar. He has not given any authenticated document either to the police or to the Tahsildar to show that he was on duty. He denied the suggestion that police and Tahsildar have not at all come to the hospital and Siddamma has not at all given the statement as per Exs.P.16 and P.17. Ex.P.17 was written by police staff but he cannot say the name of the said person.
15. Perusing the evidence of P.Ws.2,3 and 7 who are the daughters of deceased Siddamma, they have stated that their father was not giving ill treatment to their 19 mother insisting her to withdraw the amount from post office and give it to him. Their evidence goes to show that the accused was treating his wife Siddamma properly. He was not giving any ill treatment to her. Immediately, after Siddamma caught fire, the persons who saw her are P.W2. Mamatha and P.W3 Poornima, the daughters of Siddamma. P.W2 Kumari Mamatha deposed in her evidence that her mother was having the stomach pain and because of the stomach pain, her mother herself poured kerosene and lit fire to herself. P.W.3 Kumari Poornima deposed in her evidence that on that day, she slept and she does not know as to what has happened. Her father was having the habit of consuming alcohol but he was looking after her mother properly. She never saw her father giving ill treatment to her mother insisting her to give money for consuming alcohol. The evidence of P.W7 Chandini, the eldest daughter goes to show that her father was looking after her mother properly and she came to know that her mother poured kerosene and lit fire to herself. Even in the 20 cross examination of all these three witnesses, by treating them hostile, the prosecution has not elicited from their mouth that the father of these witnesses (accused) was giving ill treatment and harassment to Siddamma and he was insisting her to give the amount kept in deposit in the Paduvarahalli post office. Except making few suggestions by the PP, which suggestions have been denied by P.Ws.2, 3, and 7, nothing has been elicited from them to believe the story of prosecution.
16. P.W.4 Smt. Madamma, who is the neighbour and also the distant relative of deceased Siddamma, deposed in her evidence that accused was treating the deceased wife properly and he was not having the habit of consuming alcohol or playing the cards. She does not know about the ill treatment given by the accused to his wife insisting her to give the amount for consuming alcohol and to play cards. Thereafter, she came to know that Siddamma poured kerosene and lit fire to herself. Even in her cross 21 examination by the PP she denied that she has given statement as per Ex.P.7. P.Ws.5 and 6 stated in their evidence that they have shifted the injured to the hospital and at that time, Siddamma told before them that there is nobody to look after her children and asked them to look after her children.
17. Therefore, the only evidence for the prosecution is the two dying declarations under Exs.P.16 and P.17. It is no doubt true that under the provisions of section 32(1) of the Evidence Act, if the dying declaration is satisfactorily established before the Court, it can be the sole basis for conviction. But at the same time, for the proof of dying declaration as the declarant is not available for the purpose of cross examination and the statement of the declarant has to be taken into consideration even in the absence of such cross examination, the Court has to be cautious in appreciating the material with regard to the proof of the dying declarations. In this view of the matter, looking to 22 the dying declarations in the case on hand, Ex.P.16 which is said to have been recorded by the P.W.9 Taluka Executive magistrate, there are corrections and over writing as to the time for recording the dying declaration regarding the time at which the dying declaration said to have been recorded. This correction and over writing is clearly visible to the naked eye. It does not require any expert's opinion also. Perusing the said correction, it goes to show that the original time put for recording the dying declaration by the Tahsildar is mentioned as 11.30 to 12.00. Even in the endorsement by the doctor as per Ex.P.16(d), it is clearly visible that, below the corrected timing, the original time put is 11.30 to 12.00, over which in both the places, the time mentioned is 12.30 to 1.00 p.m. During the course of cross examination of P.W9, though it was specifically asked him that regarding the time of recording the dying declaration, there are such corrections, the Tahsildar denied the said suggestion. Even there is no signature or initial of P.W9 for the said 23 correction and over writings regarding the time. It is no doubt true that there is one more dying declaration recorded by P.W14 as per Ex.P.17. P.W.14 PSI said to have recorded the dying declaration Ex.P.17 and the doctor's endorsement is as per Ex.P.17(a) wherein it is mentioned that 'recorded on 5.8.2008 at 11.30 a.m. in front of me. Patient is conscious and oriented'. But the oral evidence of P.W10, for which we have already made reference goes to show that both the dying declarations under Exs.P.16 and P.17 are recorded at the same time i.e.,11.30 a.m. on 5.8.2008. It is true that the witness P.W10 doctor corrected himself by again saying that Tahsildar recorded the statement in the noon time at 12.30 to 1.00 p.m. Even looking to this also, again a serious doubt will arise as to the case of prosecution whether really the Tahsildar recorded it in the noon time at 12.30 to 1.00 p.m. Because in the oral evidence of P.W9 Tahsildar, it is stated that on 5.8.2008 during night at 12.25, he went to the hospital and in the presence of the doctor, he recorded 24 the dying declaration. When Ex.P.16 goes to show the timing before over wiring and correction as 11.30 to 12.00, it raises a serious doubt, whether P.W.14 PSI recorded the dying declaration under Ex.P.17 at the said timing because the timing clashes and it is impossible to record both the dying declarations at one and the same time.
18. The motive as per the case of prosecution for the accused to commit the offence was that about 12-13 years back by the sale of the family property, the amount was shared by accused and his brothers. Rs.15,000/- was fallen to the share of the accused and the same was kept in deposit in the name of P.W7 Chandini-the eldest daughter of the deceased. The accused was insisting the deceased Siddamma to withdraw the amount and to give the amount to him for consuming alcohol and for playing the cards. As Siddamma did not withdraw the amount, that was the reason for him to pour kerosene and lit fire to her. This motive projected by the prosecution is very hard and 25 difficult for this court to accept the same. This is why because though the amount was kept in FD in the post office for about 12-13 years. For all the time of 12-13 years, he has not given any such ill treatment or harassment and as to how, all of a sudden, he insisted Siddamma to withdraw the amount for his vices. The evidence of all the three daughters is also material. They have not at all stated that in connection with the said amount, their father used to ill treat Siddamma and he was assaulting and abusing her. On the contrary, their evidence goes to show that he was treating Siddamma properly.
19. It is the defence of the accused, during the course of cross examination of P.W9, 10 and 14, that this doctor P.W10 was not at all present nor Ex.P.16 and 17 were recorded in his presence. Looking to the cross examination of P.W10, he deposed that he has not given any documents either to the police or the Tahsildar to show that he was on duty at that time. Though, he has stated 26 that he has signed in the attendance register kept in the hospital, even the said register is also not produced before the Court. The evidence of P.W9 Taluka Executive Magistrate shows that no injection was given to Siddamma when he went to see her. Whereas the evidence of P.W10 goes to show that injection, was given to her. However the doctor deposed that because of such injection, the injured will not become unconscious. P.W10 doctor also clearly admitted in his cross examination that he has not produced the case sheet either before the police or before the Tahsildar. In view of all these infirmities in the evidence of the prosecution witnesses, we are of the clear opinion that the prosecution case regarding Siddamma giving dying declaration as per Exs.P.16 and P.17 will not inspire confidence of this Court. Therefore, the trial Court without appreciating the evidence of the prosecution witnesses and without ascertaining evidentiary value of both oral and documentary evidence placed on record wrongly came to the conclusion that Exs.P.16 and P.17 27 have been satisfactorily proved by the prosecution. The said finding of the trial Court is not in accordance with the material placed on record and also as per the facts and circumstances of the case. Hence, the trial Court was not justified in convicting the accused. Accordingly, we allow the appeal and set aside the judgment and order of conviction dated 15.09.2010 passed in S.C.No.288/2008 by the Addl. District and Sessions Judge, Mysore. The appellant accused is acquitted of all the charges levelled against him. He is set at liberty forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE BSR/Cs/-