Karnataka High Court
State Of Karnataka vs H Revanna on 18 April, 2013
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18th DAY OF APRIL 2013
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
CRIMINAL APPEAL No.220 OF 2008
BETWEEN:
State of Karnataka
By Madivala Police Station. ..Appellant
(By Sri G.M. Srinivasa Reddy, HCGP.,)
AND :
H. Revanna
S/o late Honnappa
Aged 37 years
Residing at Rajanna's House
Nanjundappa Layout
Mangammanapalya
Bangalore.
Native of Kainadu Village
& Post, Hosadurga Taluk
Chitradurga District. ..Respondent
(By Sri K. Venkataramana Babu, Adv.,)
2
This Criminal Appeal is filed under Section 378(1) &
(3) Cr.P.C. praying to grant leave to file an appeal against
the Judgment and Order of acquittal dated 3.9.2007 in
S.C.No.713/2005 on the file of the Addl. Sessions Judge &
P.O., FTC-I, Bangalore acquitting the respondent/accused
for the offence punishable under Section 302 of IPC.
This Appeal coming on for this hearing this day,
MOHAN .M. SHANTANAGOUDAR, J., delivered the
following:-
JUDGMENT
The Judgment & Order of acquittal passed by the Fast Track Court-I, Bangalore City in S.C. No.713/2005 is called in question in this appeal by the State. The accused was charged and acquitted for the offence punishable under section-302 of IPC.
2. The case of the prosecution in brief is that the accused/respondent is the husband of the deceased Manjula. Their marriage was performed 14 years prior to the incident in question. They have got a daughter by name Radha, aged about 12 years and studying in 6th 3 Standard at the time of the incident. The said daughter was living with one Lakshmidevamma, the elder sister of the deceased in Hosadurga village of Chitradurga district. The deceased had received Provident Fund amount of Rs.60,000/- and the accused was pestering her to give him that money. However, the deceased refused to give the said money to the accused since the said money was required for the future expenses of her daughter. The accused was addicted to bad habits like consumption of alcohol and playing of single digit lottery. On the night of 12.4.2005, the accused again demanded the deceased to pay Provident Fund money to him and on her refusal, he beat her and poured kerosene on her and set her ablaze and thereafter by opening the cupboard, he took away cash of Rs.54,000/- and gold chain & necklace and ran away from the scene. The deceased came out of the house loudly crying for help and then the owner of the house Smt. Pushpa (PW-1) and others came there and took her to 4 Victoria hospital. The Victim gave dying declaration (Ex.P8) in the night intervening between 12.4.2005 and 13.4.2005 while under treatment. Later, on the basis of the dying declaration - Ex.P6 dated 15.4.2005 the PSI of Madivala Police Station registered Crime No.401/2005 against the accused for the offence under section-307 of IPC. The deceased died on 18.4.2005 on account of burn injuries. After the death, the crime was converted for the offence under section-302 of IPC. The Police after investigation, laid the charge sheet against the accused for the offence under section-302 of IPC.
3. In order to prove its case, the prosecution in all examined 17 witnesses and got marked 21 Exhibits and 7 material objects. On behalf of the defence, no witness is examined.
4. The trial Court on evaluation of the material on record and after hearing, acquitted the accused. 5
5. PW-1 is the owner of the house wherein the accused and the deceased were living on the date of the incident. She was supposed to speak about the oral dying declaration said to have been made before her by the deceased. She has deposed that the deceased alone was in the house and she was treated hostile by the prosecution; PW-2 is known to the deceased and the accused and he came to the spot after hearing the news. According to PW- 2, the accused after taking the cash of Rs.54,000/- alongwith certain gold ornaments of the deceased kept the same with sister of the accused by name Dakshayanamma (not examined), who in turn gave the cash and the gold ornaments to him (PW-2) for handing over the same to the Investigating Officer during the course of investigation; PW- 3 is the daughter of the deceased and the accused. She has deposed about the oral dying declaration made by the deceased in front of her; PWs.4 and 5 are the sisters of the deceased and they have also deposed about the oral dying 6 declaration made by the deceased; PW-6 is the witness for the inquest panchanama Ex.P4; PW-7 is the witness for the panchanama - Ex.P3 under which cash and gold ornaments were seized ; PW-8 is the doctor who sent intimation of death to the Police as per Ex.P5; PW-9 is the Taluka Executive Magistrate who recorded the dying declaration as per Ex.P6 on 15.4.2005 from 3.45 p.m. to 4.30 p.m. in presence of the doctor - PW 14. The PSI - PW 16 recorded the said dying declaration ; PW-10 is the Police Constable who carried certain articles to the Forensic Science Laboratory for examination; PW-11 is the Head Constable who apprehended the accused on 15.4.2005 and submitted his report as per Ex.P7 regarding the arrest; PW- 12 is the ASI who after getting intimation from the doctor- PW 13, went to the hospital and recorded the statement of the victim as per Ex.P8. He has registered NCR No.134/2005 based on Ex.P8 ; PW-13 is the doctor who was present at the time of recording Ex.P8. He sent 7 intimation to the Police regarding admission of the victim to the hospital as per Ex.P9. The copy of the MLC Register is at Ex.P10; PW-14 is the doctor attached to Victoria hospital. He admitted the victim to the hospital initially at about 9 to 10 p.m. on the date of the incident and recorded the history as given by the victim at the time of admission to Victoria hospital. The history recorded is at Ex.P11. He was also present while recording the dying declaration (Ex.P6) by the Taluka Executive Magistrate. PW-14 had intimated to the Police that the injured wanted to give a fresh statement. Accordingly, the Police came alongwith Taluka Executive Magistrate for recording the statement of the victim afresh on 15.4.2005; PW-15 is the Police Constable who watched the dead body; PW-16 is the PSI who went alongwith Taluka Executive Magistrate (PW-9) and recorded the statement of the victim as per Ex.P6 in presence of the doctor PW-14. On the basis of Ex.P6, Crime No.401/2005 was registered by PW-16 and the FIR 8 as per Ex.P17 was issued for the offence under section-307 of IPC first. Thereafter he received death memo as per Ex.P5 sent by the doctor of the Victoria hospital; PW-17 is the Investigating Officer who completed the investigation and laid the chare sheet.
6. The case of the prosecution fully rests on the dying declaration - Ex.P6 said to have been given by the deceased before the Taluka Executive Magistrate (PW-9) in presence of the doctor - PW 14 and the said dying declaration was recorded by PW-16 - PSI. Before going to Ex.P6 - dying declaration, which was treated as complaint, we prefer to dwelve upon other factors.
7. PW-1 is the owner of the house, who stated to have gone to the scene of offence at the earliest. According to her, at about 9 p.m. on 12.4.2005 she heard the cry of the deceased Smt. Manjula from her house and on hearing the same, she went there and when she saw through the 9 window of the house of the deceased, it was found that the deceased was burning with fire. However, the deceased herself opened the door and came out of the house. PW-1 entered the house and extinguished the fire by putting woolen blanket and then the injured was taken to St. Johns Medical college hospital initially and thereafter to Victoria hospital. The doctor who conducted post-mortem examination has deposed that the deceased Manjula died on 18.4.2005. The postmortem examination report - Ex.P14 reveals that the doctor has opined that the death is due to septicemia consequent to burns sustained. There is no much dispute with regard to the death of the deceased due to burns in the matrimonial house of the deceased. Ex.P11 is the medical case sheet of the deceased maintained by Victoria hospital, Bangalore. Undisputedly, the incident had occurred during night on 12.4.2005 and immediately thereafter the victim was shifted to St. John's Medical College hospital and thereafter 10 to Victoria hospital. As could be seen from the case sheet
- Ex.P11, the victim was admitted to Victoria hospital at about 1.15 a.m. on 13.4.2005. Ex.P11 further reveals that the patient was conscious, well oriented, alert and physically & mentally fit to give statement. It is specifically recorded in the case sheet that the patient told that her husband scolded her on that day with abusive words, due to which she poured kerosene on herself and lit fire to herself at about 9 p.m. on 12.4.2005 and that her husband (accused) rescued her from burns and then her relative and sister took her to St. John's hospital and from there to Victoria hospital. It is further recorded in the case sheet that the aforementioned statement was explained to the victim in her own language and the same was found to be true by the victim. Thus the earliest version which came out from the mouth of the deceased is that she lit fire to herself being agitated by the abusive words used by her husband. The MLC Register - Ex.P10 discloses that the victim was 11 admitted with the history of the accidental burns (stove burst). It is also mentioned that the accidental burns were suffered by the victim in her residence while cooking because of stove burst. Thus two different versions are forthcoming from the victim herself immediately after admission to the hospital, which are at Ex.P10 and P11 and both of them are contradictory to each other. In addition to the same, the dying declaration is recorded as per Ex.P8 during the night intervening between 12th and 13th April 2005. As aforementioned, the Assistant Sub-Inspector of Police recorded Ex.P8 after going to a hospital on receipt of the memo from the hospital. He recorded Ex.P8 in presence of the doctor PW-13. In Ex.P8, the declaration is made by the deceased at the earliest point of time that she poured kerosene and lit fire to herself since her husband abused her in filthy language after he returned to house in the night at about 8 p.m. after having drunk. She has also clearly stated in Ex.P8 that noneelse is responsible for the 12 incident and that out of disgust she put herself on fire and therefore the incident had accidentally occurred. The doctor - PW 13 has deposed in the Court that at the time of recording Ex.P8, as aforementioned, the victim was in a fit condition to give statement and the Police had also took his signature on Ex.P8. From the aforementioned facts, it is clear that the victim was well-oriented, conscious and was fit to give statement while she was admitted to the hospital as well as while she gave history of the incident and also at the time of giving declaration as per Ex.P8 immediately after the incident. None of these records i.e., Ex.P10, Ex.P11 and Ex.P8 implicate the accused at the earliest. The aforementioned statements of the deceased clearly reveal that the burns are either accidental in nature or she herself was responsible as she lit fire to herself.
8. Thereafter, the Police recorded one more statement of the victim as per Ex.P6 on 15.4.2005 i.e. after three days of the incident. The said statement was 13 recorded in presence of the doctor - PW 14 and the Tahsildar - PW 9 by the PSI - PW-16. The doctor - PW 14 has deposed that the victim was well-oriented, conscious and fit to give statement as per Ex.P6 on 15.4.2005. Same is the evidence of PW-9 - Taluka Executive Magistrate in whose presence the statement was recorded. In the normal course, such statement would have been believed. But the circumstances in the matter are such that it may not be possible for the Court to believe such statement as well as the versions of PWs.9, 14 and 16.
PW-9 has deposed in his evidence that on 15.4.2005 PW-14 - Dr. Shankarappa examined the injured in his presence and informed that she was a in a fit condition to give statement and accordingly, he proceeded to record the statement of the injured and at his dictation, Smt. Anjumala T. Nayak, the PSI of Madivala Police Station (PW-
16) recorded the statement as per Ex.P6. Same is the evidence of the doctor - PW-14 and the PSI - PW-16. PW- 14 14 has admitted in his cross-examination that he examined the injured at 10.15 a.m. on 15.4.2005 and also in the evening. He has further admitted that the injured was having "breathlessness, Tachypnoea and Tachycordia, conjuctival Oedema, facial oedema and hoarseness of the voice" and the medicines advised to be administered to the patient were "fluids, 3 Dextros-3 DNS injection CP 10 lacs (4 times), injection Diclo (twice a day), injection Rantac (twice a day), injection Fortwin (night), Heparn and Oxygen inhalation, Heparin spray". All these things are noted in the case sheet - Ex.P11. He has further admitted that breathlessness and other infirmities found in the victim at about 10.15 a.m. continued till evening of 15.4.2005. He has further admitted that the injured was suffering from breathlessness and therefore oxygen was supplied to her through inhalator and fortwin injection was administered as a sedative and also as a pain killer. It is further admitted by the doctor that heart beatings of the patient were more 15 than 100 per minute, whereas normal heart beatings would be about 70-80 per minute. Thus there was increase in respiratory rate. He has further deposed that hoarseness means slurring of speech. From the aforementioned admissions of the doctor in the cross-examination, it is crystal clear that the injured was suffering from breathlessness and her heart beat was abnormal. She was supplied oxygen by inhalator. She was administered fortwin injection, which was admittedly sedative and pain killer. Under these circumstances, the trial Court has felt that it may not be possible for the injured to narrate three pages of statement, that too within a span of 45 minutes from 3.30 p.m. to 4.15 p.m. Admittedly, the statement in Ex.P6 incriminates the accused. Having regard to the earlier dying declaration - Ex.P8, MLC Register - Ex.P10 and the case sheet - Ex.P11, the trial Court in our considered opinion is justified in concluding that Ex.P6 - 16 dying declaration is a created document in connivance with the doctor and the Taluka Executive Magistrate.
9. Unfortunately, in the facts on hand, the Investigating Officer instead of admitting fairly about Ex.P10, P11 and Ex.P8, has pleaded ignorance of aforementioned documents in the cross-examination. The investigating agency should have been more fair. Since Ex.P8, Ex.P10 and Ex.P11 are on record, the Investigating Officer could not have expressed his ignorance with regard to those documents.
10. The accident register reveals that the injured was admitted to hospital by one Mr. Vishala, the relative of the deceased. However, the said Mr. Vishala is not examined as a witness in this matter. He was not even cited as a witness in the charge sheet. There is nothing on record to show that the accused was present at the spot when the incident had occurred. It is the clear evidence of PW-1 17 that she did not see the accused on the date of incident in the house and that injured herself came out opening the door of the house. One more interesting factor in the matter on hand is that Ex.P6 - Dying Declaration is concocted and reveals unnecessary events. In Ex.P6, the deceased has allegedly stated that the accused after litting fire to the victim and after taking cash and gold ornaments from the almirah was simply sitting in the house bolting the door from inside and even when the owner of the house and others came, he was still sitting in the house only and he did not even try to run away from the scene or did not go to rescue the victim. This statement of the deceased is per se totally artificial and does not fit in with the natural human conduct. Had it been the intention of the accused to lit the victim on fire for getting money, he could not have stayed back in the house till the neighbours gathered and rescued his burning wife. On the other hand, the natural 18 conduct of such person would be to run away and abscond from the spot to save his skin.
11. The trial Court is also justified in disbelieving the version of PW-2 relating to handing over of Rs.48,000/- and gold ornaments by the accused to the sister of the accused and thereafter handing over the same to PW-2 by the sister of the accused. According to the case of the prosecution, Smt. Dakshayamma, sister of the accused was handed over gold ornaments by the accused. But the said Smt. Dakshayamma is not examined. Further, according to the case of the prosecution, the said Smt. Dakshayamma handed over the gold ornaments and cash in favour of PW- 2 after 25 days and in turn PW-2 handed over the same to the Police. This appears to be artificial story, particularly when Smt. Dakshayamma, sister of the accused was not examined. Even in the cross-examination, the Investigating Officer has not come out with any explanation for not examining Smt. Dakshayamma.
19
12. Having regard to the totality of the facts and circumstances, the trial Court in our considered opinion is justified in acquitting the accused. Since the Judgment and Order of acquittal passed by the trial Court is only possible view under the facts and circumstances, no interference is called for.
Appeal fails and the same stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE Gss/nk-