Karnataka High Court
Basavangouda S/O Balasahebgouda Patil vs The State Through on 11 September, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER 2017
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.3563/2011
Between:
Basavangouda
S/o Balasahebgouda Patil
Now aged: 27 years
Occ: LIC Agent
R/o H.No.1-8-68
Padmavati Colony, Bijapur.
...Appellant
(By Sri K. Dhiraj Kumar and
Smt. Hema L.K., Advocates)
And:
The State through
CPI Golgumbaz P.S.
Bijapur.
...Respondent
(By Sri Prakash Yeli, Addl. S.P.P.)
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This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to allow the appeal and set aside the judgment
of conviction dated 03.02.2011 and order of sentence dated
09.02.2011 of Fast Track Court-I/II Bijapur in
S.C.No.143/2009 and acquit the appellant herein for the
charges for which he is convicted.
This appeal coming on for hearing, this day,
K.N.PHANEENDRA J., delivered the following:
JUDGMENT
This appeal is preferred by the accused in S.C.No.143/2009 dated 03.02.2011 in convicting the appellant-accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code (hereinafter referred to as the 'IPC' for short). The trial Court has sentenced the appellant to undergo imprisonment for life and also to pay an amount of Rs.50,000/- as fine with default sentence of rigorous imprisonment for one year for the offence punishable under Section 302 of IPC, and also sentencing him to undergo rigorous imprisonment for two years for the offence punishable under Section 498A and also directed 3 him to pay a fine of Rs.50,000/- in default of payment of fine, he shall undergo rigorous imprisonment for six months.
2. The brief factual matrix that emanate from the records are that, the deceased Sumitra was given in marriage to the accused about two years prior to the incident. They were blessed with one female child by name Sahana. The accused was working in LIC office. It is alleged that the accused was always suspecting the fidelity of his wife and due to which he was assaulting her and ill-treating and harassing her and also that, he was demanding for money.
3. In this background, it is alleged that on 05.04.2009 at about 11.30 a.m. the accused has started quarrelling with his wife on the above said two grounds and with an intention to do away with the life of the deceased, has poured kerosene on her and lit fire. She started screaming, at that time the neighbouring people 4 gathered and shifted her to the hospital. The said Sumitra and the accused were residing at Padmavati colony in Bijapur.
4. On the basis of the above said complaint being lodged by the deceased herself, the Police have registered a case in Crime No.24/2009 earlier for the offences punishable under Sections 498A and 307 IPC and thereafter initiated the investigation. During the course of the investigation, the Investigating Officer also got recorded the dying declaration of the deceased through Tahsildar/Taluka Executive Magistrate, Bijapur and thereafter it appears the said lady died on 06.04.2009 on the next day of the incident in the hospital. In pursuance of the death of the deceased, the case has been converted, for the offence punishable under Section 302 of IPC.
5. The accused was apprehended in connection with this case and he was produced before the jurisdictional Magistrate. He has been in judicial custody 5 since the date of his arrest. The trial Court, after securing the presence of the accused, has framed charges against him for the offences punishable under Sections 498A and 302 of IPC. As the accused pleaded not guilty, he was put on the trial. Prosecution, in order to establish the guilt of the accused, examined as many as 11 witnesses and got marked nine documents as Exs.P-1 to P-9. and M.O.s-1 to 5 material objects. The accused was also examined under Section 313 Cr.P.C. The accused also led evidence on his side and examined one Vijaykumar as DW-1. We would like to consider the evidence of DW-1 little later after considering the evidence let in by the prosecution, after ascertaining whether the prosecution has actually proved the case beyond all reasonable doubt. The trial Court, after appreciation of the oral and documentary evidence on record, convicted the accused for the above said offences and sentenced him accordingly.
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6. Learned counsel for the appellant strenuously contends before this Court that the entire case revolves around four dying declarations. Except the dying declarations there are no other evidence available to implicate the accused, as almost all the independent prosecution witnesses have turned hostile to the prosecution. He further contends that the prosecution has not placed any material even to show that the dying declarations have been recorded in accordance with law and there is no consistency in the multiple dying declarations alleged to have been came into existence. The evidence also discloses that it is a love marriage between the appellant and the deceased and there was no occasion for the husband to ill-treat or harass his wife. Furthermore, there is no material to connect the accused to the crime as, it is established during the course of the evidence that the accused was not at all there in the house at the time of the incident. Therefore, the learned counsel, for all these reasons, pleads before this Court 7 that, the trial Court has not properly appreciated the oral and documentary evidence on record and wrongly recorded the judgment of conviction and sentence, which needs interference.
7. Per contra, learned Additional State Public Prosecutor has argued before this Court that though there are some discrepancies and hostility of the prosecution witnesses, nevertheless the prosecution is able to establish the dying declaration recorded by the Taluka Executive Magistrate and as well the first information report which is in the nature of dying declaration recorded by the Police Sub-Inspector. He further contends that when the prosecution has established the dying declarations beyond reasonable doubt, there is no need for the Court to search for any corroboration. The dying declaration itself is sufficient to convict the accused person. Therefore, he pleads before this Court that there is no room to interfere with the judgment passed by the 8 trial Court, as the trial Court has in detail appreciated the dying declaration and came to the conclusion that the prosecution has proved the case beyond all reasonable doubt. Therefore, he request the Court to dismiss the appeal.
8. On the basis of the above said rival contentions raised before this Court and after re-appreciation of the oral and documentary evidence on record and also after considering the judgment of the trial Court, the point that would arise for our consideration is:
Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by the trial Court?
9. Before adverting to appreciate the dying declarations which are the prime materials available to this Court, it is just and necessary to have the brief cursory look at the evidence of the prosecution witnesses. 9
10. PW-1 Mr. Siddaraya is a panch witness for Ex.P-1 which is the spot panchanama. He turned hostile to the prosecution though in the cross-examination it is specifically suggested that he knew about the ill-treatment and harassment by the accused and also as to what happened on that particular day and he knew about the house of the accused and he also observed various burnt objects in the house of the accused and after considering all the above said factual aspects the Police have drawn the spot panchanama as per Ex.P-1 wherein the police have seized M.O.s-1 to 5. But those suggestions have been denied by this witness. Though he denied the suggestions but his evidence is not so significant because the accused never denied death of his wife due to burn injuries. PW-2 one Mr. Ramesh is also a panch witness to Ex.P-1. He has also not supported the case of the prosecution. PW-3 Basavaraj is also a panch witness to Ex.P-2 which is the inquest panchanama. He did not support the case of the prosecution. Though it is 10 suggested in the course of cross-examination that the police have conducted the inquest panchanama on the dead body of the deceased but he denied those suggestions. Again it goes without saying that the evidence of this witness is also insignificant as there is no denial by the accused with regard to the death of his wife particularly due to burn injuries.
11. PW-4 is the prime witness to the prosecution who is none other than the father of the deceased. He categorically admitted the relationship and he specifically stated that the accused and deceased married each other after loving each other. After the marriage the accused and deceased lived happily with each other and after sometime they shifted themselves to Bijapur and started living at Padmavati colony. On the date of the incident he went to the hospital on receiving the telephonic information about the burn injuries being sustained by his daughter. He went to the hospital and saw the body of 11 his daughter. Also he says that, her daughter died due to burn injuries but he pleads his ignorance as to how his daughter died. Therefore, the prime witness to the prosecution particularly who can speak about the facts regarding an offence under Section 498A, has totally turned volte-face to the case. In the course of cross- examination, the prosecution made attempts to elucidate the factual aspects that the accused was always suspecting the conduct of the deceased and also demanding for money and due to which she was frustrated in life. It is also suggested that on the date of the incident the accused alone poured kerosene on her and lit fire and this was actually disclosed by the deceased herself in presence of this witness, and also in presence of this witness she gave the complaint to the police. He denied all the above said suggestions and also denied having given any statement as per Ex.P-3 before the police. During the course of cross-examination he further fortified in favour of the accused that the accused and 12 deceased were living together happily with each other. They were also blessed with one female child. About two months prior to the incident, Sumitra had come to the house of this man and at that time also the husband and wife were living happily with each other. He specifically stated that on the date of the incident there was an accidental fire and the sari of the deceased caught fire and due to which she succumbed to the burn injuries. The above said evidence of PW-4 collapses the case of the prosecution so far as Section 498A of IPC is concerned. No other witnesses could say except the kith and kin of the deceased about what she was telling during her lifetime. Admittedly, mother and brother were also cited by the prosecution as witnesses but they were not examined before the trial Court for the reasons best known to the prosecution. Though we are not satisfied as to the nature of the trial conducted by the prosecution in not examining the mother and brother of the deceased, when specifically the father of the deceased turned hostile, 13 but the fact remains that no such evidence is available to the prosecution in order to appreciate the case of the prosecution.
12. PW-5 Mr. Annadani Hanamanth Alur (A.H.Alur) is the person who recorded the dying declaration of the deceased which we will discuss a little later. PW-6 Dr. Dilip is also the person who assisted the Taluka Execution Magistrate in recording the dying declaration of the deceased. We will discus evidence of this witness along with PW-5.
13. PW-7 Dr. Bhimanna was working as a Senior Specialist, District Hospital, Bijapur who conducted the autopsy on the dead body of the deceased. He has categorically stated that he has found burnt injuries all over the body and he has given the description of the burn injuries on the body on various parts particularly face, neck, scalp, breast, buttocks, lower and upper limbs, abdomen etc. After conducting the postmortem 14 examination, he was specifically of the opinion that, the death was due to burn injuries. Ex.P-7 is the postmortem examination report which also shows that the death was due to neurogenic shock as a result of burns. This witness was cross-examined at length. He specifically stated about the circumstance at the time of the admission of the witness to the hospital. He specifically spoken about the case sheet of the deceased maintained in the Government hospital. Exs.D-1 to D-3 are the documents which bears the signature of this witness. They are the true copies of the original documents. The burns over the body was due to pouring of kerosene on her body and the said deceased was admitted to the emergency ward for treatment. He admits that Ex.D-2 is the intimation sent to the police outpost in the hospital for having admitted the injured with history of burns. The endorsement Exs.D1 to D3 have been issued by Dr. Nagathan who was on casualty duty on that day. It is established that, Sumitra had sustained 90% burn 15 injuries on her body. He also admitted that though there is loss of fluid resulting in shock over 20% of body is affected and usually over 50% is fatal and if a patient sustains burn injuries of more than 50% there will be loss of watery fluids. He also opined that if the patient sustains burn injuries to the extent of 90%, then the patient may go to shock immediately. These are all the features which have been extracted from the evidence of this doctor for the purpose of establishing before the Court what was the exact condition of the injured at the time of admitting the injured to the hospital and subsequently. We would like to refer this portion of the evidence little later while considering the dying declaration.
14. PW-8 Lumapati was the Police Constable who in fact after the inquest panchanama of the deceased shifted the dead body to the hospital for postmortem examination. PW-9 Mr. Bajiray is also a Police Constable who, after registration of the case in Crime No.24/2009, 16 carried the F.I.R. to the jurisdictional Magistrate on the same day on 05.04.2009 at 10.20 p.m. Though there is some cross-examination to this witness in order to elucidate delay in submitting the F.I.R. to the jurisdictional Magistrate, but no fruitful evidence has been elicited. Further added to that, as we have stated that there is no other evidence available except the dying declaration, therefore even there is some delay in dispatching the F.I.R., it would not, in any manner, affect the case of the prosecution.
15. PW-10 Bhagyavanti Banti is the Police Sub- Inspector who also recorded the F.I.R. of the deceased as per Ex.P-1. As the said lady died after recording of the statement during the course of evidence this document sought to be proved as if a dying declaration.
16. PW-11 Mr. Sadananda, Circle Inspector of Police who completed the investigation, recording the 17 statement of the prosecution witnesses and submitted the charge sheet.
17. On overall perusal of the above said evidence, as rightly contended by the learned counsel for the appellant, the entire case of the prosecution revolves around the dying declarations. Now we would like to go through the sequence of events as happened in this particular case. There is no doubt that after the incident being happened the injured was shifted to the hospital and the complainant was telephonically informed and he went to the hospital and saw the injured in the hospital. But he never stated actually who admitted the injured to the hospital. Therefore, it becomes necessary for this Court to examine the documentary evidence produced before the Court. PW-7 Dr. Bhimanna, as we have already referred to, admitted issuance of Exs.D-1 to D-3 by his colleague by name Dr. Nagathan who was the casualty duty doctor at the time when the injured was admitted to 18 the hospital. Prosecution did not choose to examine this witness, nor denied the genuinity and source of Exs.D-1 to D-3. Ex.D-1 out patient slip, shows that the injured was admitted to the hospital with history of burns over the body by pouring kerosene on herself on her body on 05.04.2009 recorded at 11.30 a.m. by the duty doctor. Ex.D-2 is the medico legal information sent to the jurisdictional police i.e. outpost police with regard to the death of the deceased stating that Sumitra W/o Basavangouda Patil of Bijapur was admitted to the hospital with the history of burn injuries all over the body who died on 06.04.2009.
18. Ex.D-3 case sheet of deceased maintained in the hospital, is the another important document which is the case sheet of the deceased which discloses the percentage of burns sustained by the injured. The duty doctor has also recorded that on 05.04.2009 the injured was admitted to the hospital at about 11.30 in the 19 morning and she herself disclosed that she poured kerosene on herself and she was admitted to the hospital sustained 90% of burns. There was danger to her life and doctor told that she has to be shifted to the higher hospital for the purpose of treatment. But the accused Mr. Basavanagouda Patil told that as far as possible treatment may be given in that hospital itself. This document bears the signature of the accused Mr. Basavanagouda Patil. It is not there as to who actually gave the information to the doctor. But the overall reading of the above said materials shows that the deceased herself must have given the statement before the doctor because Ex.P-1 discloses that at the time of admission the doctor has noted that the deceased herself poured kerosene on herself. That is the indication that she must have given the said intimation. It is also evident from the records that the accused admitted the deceased to the hospital. Ex.D-3 shows that she was admitted to the hospital by her husband on 05.04.2009 at 12.15 p.m. 20 There is no contra evidence adduced by the prosecution in order to explain these Exs.D-1 to D-3 as at the earliest point of time it was recorded that the deceased was admitted to the hospital with history of burns that she poured kerosene on herself. In this background, the Court has to examine the other important aspects i.e. other important dying declarations.
19. The father of the deceased is the prime witness examined before the Court by the prosecution in order to elucidate that, in presence of the other witnesses and in presence of this witness, the deceased has stated that the accused has poured kerosene on her. But the said witness PW-4 has turned totally hostile to the prosecution. He denied that the deceased has given any such statement before him. Therefore, the alleged voluntary statement (oral dying declaration) of the deceased before her father is also falsified due to the hostility of the said witness. In 21 this background, the Court has to examine meticulously the other dying declarations.
20. Ex.P-4 is the next dying declaration which was recorded by Taluka Executive Magistrate between 2.40 to 3.05 p.m. A plain looking into this document itself, in our opinion, does not repose any confidence in the mind of the Court. Ex.P-4 is virtually in a printed form recorded by the Executive Magistrate by virtually filling up the blanks. On meticulous observation of this Ex.P-4 it discloses that the Taluka Executive Magistrate has recorded this statement in a cyclostyled fashion and it is also stated that the said Magistrate has taken the left toe impression of the deceased. The cyclostyled dying declaration also contains the information of the doctor already printed. It has also got printed in the said form that the deceased was in a fit condition to give statement or she was not in a position to give any statement. The other portion that she was not in a position to give statement has been scored 22 out and doctor has put his signature simply accepting what has been stated in the format. He has not specifically given his opinion in the dying declaration about examination of the deceased, that, he has actually examined the deceased and what are the medicines which were administered to the deceased. Dr. Dilip has even not specifically given what is the exact condition of the injured. Even this particular document does not disclose the specific certificate of the doctor with regard to the physical and mental fitness of the deceased though it is stated that the statement was recorded in presence of the doctor.
21. Be that as it may, now let us see the evidence of this witness who recorded the statement i.e. the Taluka Executive Magistrate PW-5. He has categorically stated that he recorded the statement of the injured but in the examination-in-chief itself he, no doubt, stated that the doctor has certified in Ex.P-4 with regard to the fitness of 23 the injured. On examining her she herself told him that she was in a fit condition to give statement and she disclosed that her husband has poured kerosene on her and due to which she sustained injuries. He further stated that, at the time of recording the statement doctor was also present i.e. Dr. Dileep Ganjyal. In the course of cross-examination, it is admitted that he has not mentioned as to in which case he has been recording the dying declaration. No case number has been mentioned on the dying declaration. Perhaps by that time the police have not at all recorded the statement of the injured and registered any case. He has also stated that he has not specifically taken the opinion from the doctor on any document with regard to the physical and mental fitness of the injured and he admits that the doctor was present and thereafter he has simply taken the signature of the doctor. It is suggested therefore that he has taken the signature of the doctor after recording the same in the office room of the doctor. The said suggestion has been 24 denied. The other suggestions made to this witness have also been denied. It is suggested that the injured had sustained heavy burn injures and she was not in a position to give any statement and she was not in a state of mind to give such statement. Dr. Dileep deposed before the Court in the examination-in-chief that he was also present at the time of recording the dying declaration and he has given an opinion that she was in a fit condition to give statement. In the course of cross-examination he admits that he is not the doctor who has treated the injured and he also did not examine what is the treatment that has been given to the said injured and he also admits that she had sustained 90% of burns. He also did not take any opinion from the doctor who has given treatment to the injured. It is also admitted that normally the doctor who treats the injured has to give the said opinion. He also admits that in Ex.P-4 he has not specifically stated that the injured was in a fit condition to give statement. He gives an explanation that it is a printed format 25 therefore he has not given any such information. Though it is suggested that the injured had sustained 90% of burns she was not in a position to give any statement, the said suggestion had been denied.
22. Now looking to the above said dying declaration, which is little haphazardly recorded by the Executive Magistrate, it appears, even without registering a case the said statement has been recorded. There is no explanation as to why, though the MLC shows that the intimation has been delivered to the police at the earliest point of time, as per Ex.D-2, the police have not recorded the statement of the injured at the earliest point of time for the purpose of registration of a case. It is worth to refer to the evidence of PW-10 Bhagavanti Banti who recorded the statement of the injured. He says that on 05.04.2009 he received the intimation from the hospital and immediately he went to the hospital and examined the injured and thereafter he requested the Taluka Executive 26 Magistrate to record the statement. In the course of examination he admits that at about 1.00 p.m. he received the intimation from the hospital, immediately he went to the hospital. It is suggested that immediately he recorded the statement of the injured. The said suggestion has been denied by him. Therefore, it goes without saying that the police, at earliest point of time, even before the Taluka Executive Magistrate has come to the spot to record the statement of the injured but the same has not been done.
23. In this background, the second dying declaration, which is recorded in the nature of F.I.R. play a dominant role. The said witness PW-10 PSI has stated that he went to the hospital and taken the opinion of the doctor and thereafter recorded the statement of the injured. His evidence discloses that immediately after receipt of the intimation from the hospital he went to the hospital and recorded the statement of the injured. In the examination-in-chief he never stated that he has taken 27 any opinion from the doctor before recording the statement of the injured. In the examination-in-chief itself he never stated anything about he satisfying himself with regard to the physical and mental fitness of the injured. In the course of cross-examination, he has stated that Ex.P-10 is not in his handwriting but it is stated that said document was recorded in his presence. He admits that on the overleaf of Ex.P-10 he has put his signature noting that in his presence the said document has been recorded. He further admits that in Ex.P-10 there is no mention that the injured was in a fit state of condition and speaking condition to give statement. Therefore, it is suggested by the learned counsel for the accused that he never recorded the statement of the injured. It is stated that he has taken the left hand's thumb impression of the injured. It is denied that the said thumb impression does not belong to the deceased because the entire hands were burnt. Therefore, it is suggested that this particular document has been created.
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24. The first dying declaration recorded by the Taluka Executive Magistrate clearly shows that the entire hands were burnt therefore he could not take the thumb impression of the deceased. After mentioning the same, the Taluka Executive Magistrate has taken the left toe impression of the deceased and the Taluka Executive Magistrate has also stated in the course of cross- examination that at the time of taking the left toe impression he has examined that her hands were completely burnt. Therefore, she was not in a position to put her signature and therefore her left toe impression was taken. When this statement was at the earliest point of time, it is not explained as to how the Police Sub- Inspector records the 154 statement and took the left thumb impression of the deceased. Therefore, it creates a serious doubt with regard to the existence of the said complaint where it bears the actual left thumb impression of the deceased. This particular aspect has not been, in detail, explained by the person who recorded the 154 29 statement of the injured. Therefore, we are of the opinion that there are lot of deficiencies in the above said two dying declarations. Admittedly, the doctor was not present when the Police Officer has recorded the statement of the injured and the said complaint also does not contain the signature of the doctor or there is no certification by the doctor on Ex.P-10. There is no request made by the P.S.I. who recorded the complaint to the doctor to examine the injured and to give opinion that she is in a fit state to give any statement and it was recorded at 3.30 in the afternoon. Every dying declaration, when particularly multiple dying declarations are posed, by the prosecution to be established has to be examined by the Court in detail to consider whether any one of the dying declaration can be relied upon by the Court beyond doubt and particularly when multiple dying declarations are there whether there is any consistency in the statement of the injured so that the Court could conclusively draw an inference with regard to the guilty of the accused. 30
25. On looking to the above said dying declarations, particularly when the injured was first admitted to the hospital, there is a declaration that she poured kerosene on herself. Secondly, when the father came to see her in the hospital, it is the case of the prosecution that she declared that her husband has poured kerosene on her but the father has turned hostile and he stated that the husband and wife were living happily together with each other and no such incident happened and the deceased did not tell him in the hospital that the accused poured kerosene on her. For the reasons best known to the prosecution, mother and brother of the deceased were not examined. The third dying declaration which is said to have been given by the deceased before the Executive Magistrate, on which we have dealt with in detail, suffers from serious defects with regard to the giving of the opinion by the doctor and taking of the left toe impression etc. and also the recording of the dying declaration in a printed format which already 31 contained the physical and mental status of the deceased and the doctor has not specifically given his opinion in writing. The presence of the doctor itself is doubtful because of the simple reason that immediately after Ex.P-4 the Police Officer records 154 statement of the injured at 3.30 p.m. at that time the doctor's presence was not there. Therefore, looking to the above said factual aspects of this case, there are two sets of dying declarations which indicate that the deceased has poured kerosene on herself and committed suicide i.e. Ex.D-1 to D-3 and also the statement of the father of the injured. The second set of dying declarations, which are said to have been recorded by the Taluka Executive Magistrate and as well as the police, implicate the accused person. When two sets of dying declarations are available and when there are no other corroborating material available to the prosecution, it is very difficult to rely upon such dying declarations in order to convict the accused for the offence punishable under Sections 302 and 498A of IPC. 32 In this context, it is worth to refer to a decision of the Apex Court reported in (2016) 14 SCC 151 between State of Gujarat vs. Jayrajbhai Punjabhai Varu wherein the Apex Court was also dealing with multiple dying declarations. It is stated that the factual aspects of the case are of little importance which reads thus:
"R was admitted to government hospital with 90% burn injuries. She stated before police officer at 7.30 a.m., and before Executive Magistrate at 8.25 a.m., that, at about 5 o' clock in the morning, when all other family members were sleeping in the house, an unknown person took her into the kitchen, poured kerosene on her and set her on fire. In the afternoon, R succumbed to her injures. PW-1 (father of deceased) deposed before Court that deceased informed him that after giving her torture for whole night, she was taken to kitchen by respondent (husband of deceased) and after pouring kerosene on her, matchstick was lighted, and respondent threatened deceased of dire consequences in case of disclosure of incident. Sessions Judge, on the basis of deposition of PW- 1, convicted respondent under Section 302 IPC. High Court acquitted the respondent. The Court 33 observed that in both the dying declarations recorded by two independent witnesses after following due process of law, she gave a statement that person was unknown and there was no involvement of her in-laws or husband. Both statements are consistent and there is no contradiction as to the role of respondent herein. A close relative of PW-1, who accompanied him to see the deceased in hospital, denied having any conversation with deceased.
Held, one set of evidence which is more consistent and reliable, which in present case being one in favour of respondent herein, requires to be accepted. Sole evidence of father of deceased as compared to dying declarations does not inspire confidence in the mind of Court."
Therefore, the Apex Court has held that when two sets of dying declarations are available, one which favours the accused normally should be preferred when there is no corroboration to the said set of dying declaration.
26. In another ruling of the Apex Court which is reported in AIR 1993 SC 374 between Smt. Kamla vs. State of Punjab. The Apex Court has observed that in the 34 dying declarations made by deceased revealing inconsistency vis-à-vis naming the culprit, one of the dying declaration indicating the incident as an accident, conviction under Section 302 IPC based on one of the dying declarations implicating the accused is liable to be set aside.
27. In view of the above said factual aspects it is clear from the above said circumstances that there are two dying declarations which are in favour of the accused though they are said to be oral dying declarations. One of the dying declarations is said to be oral dying declaration which is alleged to have been made before the father. But here, when no other witnesses have been examined particularly the mother and brother of the deceased, it is not explained during the course of cross-examination of the father of the deceased as to why he has to speak falsehood. The father is the right person to come with truth before the Court. His testimony has to be eradicated 35 if only a substantial material is placed on record during the course of cross-examination. As we have referred to, except making suggestions to this witness, nothing has been elicited as to why he has to lie before the Court and why the Court should not accept the evidence of that witness as truth which is also corroborated by Exs.D-1 to D-3. The doctors have also stated that Ex.D-1 came into existence at the earliest point of time i.e. one way of recording of the statement on the intimation at the earliest point of time which declares that deceased disclosed before the doctor that she poured kerosene on herself and due to which she succumbed to the injuries.
28. In this background even considering that the prosecution has placed some materials before the Court, the accused has also examined one witness before the Court. In our opinion it also play a dominant role in this case. DW-1 examined before the Court is none other than the owner of the house in which the accused and deceased 36 were residing soon before the death of the deceased. DW- 1 Vijaykumar has categorically stated that the accused and deceased were residing in his house along with a small child. They had taken the said house on rent. The house of this witness was also adjacent to the house of the accused. He deposes that the accused and deceased were residing together with all love and affection. This version is also corroborated by the evidence of the father of the injured. This witness further tells that, the deceased died due to burn injures about 7 to 8 months prior to his examination before the Court. He further deposed that he was present very much in his house on that day at about 11.00 a.m. to 11.30 a.m. He heard the screaming voice of the deceased, then he came out from the house and went near the house of deceased. The house was bolted from inside and these persons broke open the said bolt and went inside and they saw the deceased had sustained burn injuries. The deceased was alone in the house at that particular point of time. The accused came later and 37 thereafter poured some water in order to extinguish the fire. The accused has telephoned to secure the ambulance and secured the same and shifted the injured to the hospital. The accused and deceased were cooking food by using kerosene stove. Inspite of this witness telling them not to use the kerosene stove, but still they were using the kerosene stove.
29. The evidence of this witness in the examination-in-chief clearly discloses that on that particular day the deceased was alone in the house and it appears it was an accidental fire caught on her and due to which she sustained injuries. In the course of cross- examination, though a lengthy cross-examination was adverted to, nothing worth has been elicited except putting some suggestions that, he would only meet the accused at the time of receiving the rent and not otherwise. He also answered in the course of cross- examination to the suggestion that the accused and 38 deceased have married after loving each other, but he pleads his ignorance. It is suggested that on that particular day the accused actually poured kerosene on the deceased and thereafter this witness went there and saw that there was a kerosene bottle inside the house, the accused was inside and the house was bolted from inside and thereafter some other persons have telephoned to the ambulance and secured the same in order to shift the injured to the hospital. These suggestions indicate that the prosecution knew that this witness was also a witness who saw the accused and the deceased on that day. Then what made the police not to record the statement of this witness at the earliest point of time. No explanation is offered by the Investigating Officer in this regard. Though it is suggested to this witness that the accused had been ill-treating and harassing the deceased, those suggestions have been denied.
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30. Ofcourse the defence evidence of the accused need not be solely relied upon by the Court for the purpose of acquitting the accused, but the legal dictum shows that the evidence of the defence has to be treated on par with the evidence of the prosecution witnesses, unless it is established during the course of cross- examination as to how and why that witness should be disbelieved by the Court. As could be seen, except making some suggestions, no specific evidence has been placed for the purpose of disbelieving this witness. This is not that the evidence of this witness is uncorroborated, as we have already in detail discussed that the evidence of this witness is fully corroborated by Ex.D-1 as well the evidence of the father of the injured. So therefore the defence of the accused though not specifically taken but from the surrounding circumstances it probablises that, the accused might not be there at the time of the incident and further the accused and deceased were living happily with each other and there was no occasion for the accused 40 to commit the murder of his wife. The evidence of DW-1 is not isolated. It is to some extent supported by other circumstances of this particular case.
31. It is evident from the records that after recording the dying declaration though the P.S.I. was very much present in the hospital, the Executive Magistrate has not informed the Investigating Officer about the dying declaration nor he has furnished the copy of the dying declaration to the Investigating Officer. The evidence of the Taluka Executive Magistrate also discloses that he appears to have produced the said dying declaration directly before the Court, till that point of time he kept that with him without there being any explanation. Even there was no opportunity perhaps to the accused to look into the said document at the earliest point of time.
32. Therefore, looking to the above said facts and circumstances and also on re-appreciation of the entire evidence on record, we are of the opinion that the learned 41 Sessions judge has committed serious error in convicting the accused for the offences punishable under Sections 498A and 302 of IPC. The Sessions judge has not given benefit of the above said doubtful circumstances in favour of the accused. This fundamental basic principles of criminal jurisprudence that where the doubt goes to the root of the prosecution, such doubt has to be given to the benefit of the accused as we have expressed that recording of two dying declarations does not strictly comply with the legal requirements and other two dying declarations support the case of the accused coupled with the evidence of DW-1. Therefore, the whole story of the prosecution is shrouded with doubtful circumstances. The benefit of doubt should have been given in favour of the accused which has not been done by the trial Court which we would like to accord in favour of the accused. 42
33. For the above said reasons, we answer the point formulated by us in the affirmative and proceed to pass the following:
ORDER The appeal is allowed. Consequently, the judgment of conviction and sentence passed by the trial Court i.e. Fast Track Court-I/II, Bijapur in S.C.No.143/2009 for the offences punishable under Sections 498A and 302 of IPC is hereby set aside. The accused is acquitted of the above said charges. The accused shall be released forthwith if he is not required in any other case. If any fine amount is already deposited, the same is ordered to be refunded to the accused.
Sd/-
JUDGE Sd/-
JUDGE swk