Karnataka High Court
State Of Karnataka vs Gangadharappa on 11 September, 2012
Bench: Dilip B.Bhosale, S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE DILIP B.BHOSALE
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
CRIMINAL APPEAL NO.1059/2007 (A)
BETWEEN:
State of Karnataka,
Represented by
Dibburahalli Police Station. ... Appellant
(by Sri.P.M.Nawaz, Addl.SPP)
AND:
1. Gangadharappa,
48 years,
S/o Doddanarayanappa
R/o Pillagundlahalli Village,
Bashettihalli Hobli,
Sidlaghatta Taluk.
2. Siddappagari Manjunatha
30 years,
S/o Krishnappa,
R/o Pillagundlahalli Village,
Bashettihalli Hobli,
Sidlaghatta Taluk.
3. Gopala,
35 years,
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s/o Mukkolla Venkateshappa,
R/o Pillagundlahalli Village,
Bashettihalli Hobli,
Sidlaghatta Taluk.
4. Gadampalli Srinivasa,
35 years,
S/o Chinnagangulappa,
r/o Pillagundlahalli Village,
Bashettihalli Hobli,
Sidlaghatta Taluk. ... Respondents
(by Sri.Y.S.Shivaprasad, Adv., for R1 to R4)
This Criminal Appeal is filed under Section 378(1) and
(3) Cr.P.C. by the State against the judgment dt.5.4.2007 in
SC.No.287/2005 on the file of the Addl.S.J., Kolar,
acquitting the respondent/accused for the offence u/S
376(2)(g), 506, 306 r/w 34 of IPC and u/S3(1)(xi) and 3(2)(v)
of SC/ST (POA) Act, 1989.
This Criminal Appeal coming on for hearing this day,
the Court delivered the following:
ORAL JUDGMENT; (DILIP B. BHOSALE J)
The State has preferred this appeal against the judgment and order dated 5.4.2007 rendered by the Second Additional Sessions Judge, Kolar, in S.C.No.287/2005, whereby all four accused were acquitted of the offence punishable under Sections 376(2)(g), 306, 506 read with -3- Section 34 of IPC and under Sections 3(1)(xi) and 3(2)(v) of SC/ST (POA) Act, 1989.
2. Briefly stated, the prosecution case, as reflected in the complaint, is that on 26.9.2005, at about 11.00 p.m., when Gowramma (for short 'the deceased') went out of her house to answer natures call, the accused caught hold of her, gagged her mouth with cloth, lifted and took her to Sy.No.24/1 of Pillaguntiahalli village in Jawar crop and committed rape one after the another. They threatened the deceased not to disclose the incident to any one, otherwise they would propagate in the village that she herself called them to satisfy her lust. Thereafter they left the scene of offence. The deceased returned home after midnight and informed about the incident to the grandmother of her husband, Papamma (PW3).
2.1. On 27.9.2005 the deceased apprehending the danger that the grand mother (PW3) may disclose the incident of rape to the other family members including her husband and that her husband may beat her, at 5.00 pm., -4- committed suicide. She poured kerosene and set herself ablaze. She was initially removed to Sidlaghatta General Hospital by neighbours where she was admitted at about 7.20 pm. There, her dying declaration (Ex.P9) was recorded by PW.23 in the presence of doctors (PWs.13 and 14) and PW.8. Thereafter, she was shifted to Victoria Hospital at Bangalore at 10.30 pm., where she succumbed to the injuries at 1.30 am., on 28.9.2005. On the basis of the statement of the deceased (Ex.P9), the police registered an offence against the accused and set the investigation in motion. In the course of investigation, statements of several persons were recorded, different panchanamas were drawn and 7 material objects were seized. After completing the investigation, charge sheet was filed and thereafter the case was committed to the Sessions Court for trial at Kolar.
3. The II Additional Sessions Judge at Kolar framed the following charges against all the accused:
"That on 26.09.2005 at about 11.00 P.M at Pillagundlahalli Village, Sidlaghatta Taluk, you all the accused persons with common intention -5- forcibly took Smt.Gowramma Wife of Manjunatha aged about 22 years to the land of Muniyamma bearing Sy.No.24/1, when she came out of her house and committed gang rape on her and thereby committed an offence punishable U/S 376(2)(g) read with Sec.34 of IPC and within my cognizance.
Secondly, on the aforesaid date, time and place, you all the accused persons not being the members of SC/ST community with common intention used force against Smt.Gowramma a woman belong to scheduled caste with intent to dishonour or outrage her modesty by committing gang rape on her and thereby committed an offence punishable U/S 3(1)(xi) of SC/ST (POA), Act, 1989 and within my cognizance.
Thirdly, on the aforesaid date, time and place, you all the accused persons with common intention committed criminal intimidation by threatening the said Smt.Gowramma with injury to her reputation by making false propaganda that she has called them for illegal-intimacy at that odd-hour and thereby committed an offence punishable U/S 506 read with Sec.34 of IPC and within my cognizance.
Fourthly, on 27.09.2005 at about 5.00 P.M in the house of deceased Smt.Gowramma at Pillaguntlahalli Village, Sidlaghatta Taluk she committed suicide by pouring kerosene and setting herself ablaze and that you all the accused persons with common intention abetted its commission by committing gang rape on her on the previous day night and thereby committed an offence punishable u/s 306 read with Sec.34 of IPC and within my cognizance.-6-
Lastly, on the aforesaid date, time and place, Smt.Gowramma who belong to scheduled caste had committed suicide by pouring kerosene and setting herself ablaze and that you all the accused persons not being the members of SC/ST community with common intention abetted its commission by committing gang rape on her on the previous day night and thereby committed an offence punishable u/s 3(2)(v) of SC/ST (POA) Act, 1989 and within my cognizance."
4. We have heard learned Counsel for the parties at considerable length and perused the entire evidence placed on record. The prosecution mainly placed reliance upon the oral as well as written dying declaration to bring home the guilt of the accused. To prove the written dying declaration, the prosecution placed on record the dying declaration (Ex.P9) and examined PWs.6, 8, 13, 14 and 23 in support thereof. Insofar as the oral dying declaration is concerned, the prosecution placed reliance upon the testimonies of PWs.1, 2, 3, 5, 15 and 18. We propose to make reference to the submissions advanced by the learned Counsel for the parties while appreciating/assessing the evidence in the course of judgment.
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5. At the outset we would like to consider the evidence led by the prosecution in the nature of written dying declaration. Before we advert to the evidence placed on record to prove the written dying declaration, we would like to refer to the observations made by the Full Bench in Ramesh Gyanoba Kamble vs. State of Maharashtra (FB) (2011 Crl.L.J. 4964) of the Bombay High Court to which one of us (D.B.Bhosale J.) was a member. The Full Bench after considering the judgments of the Supreme Court in State of H.P. v. Lekh Raj ( (2001) 1 SCC 247 and in Zahira Habibulla H.Sheikh v. State of Gujarat, (2004) 4 SCC 158 in paragraph 15.2 observed thus:
"15.2 Thus, the Courts while dealing with criminal trials or appeals have to keep the realities of life in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. A traditional, dogmatic, hypertechnical approach needs to be replaced by a rational, realistic and genuine approach while dealing with the questions such as the one under consideration before us.-8-
Criminal jurisprudence have to be considered as a part and parcel of the human civilization and realities of law. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard of its duty to prevent miscarriage of justice."
6. It is also well settled that Courts are expected to scrutinise the dying declaration carefully and must ensure that it is not a result of tutoring, prompting or imagination and that the dying person had an opportunity to observe and identify the accused and was in a fit state of mind to make the declaration (see Ram Chandra Reddy v. Public Prosecutor (AIR 1976 SC 1994). The Supreme Court then in Rasheed Beg v. State of Madhya Pradesh [ (1974) 4 SCC 264] observed that where dying declaration is suspicious it should not be acted upon without corroborative evidence. It is also well settled that there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (see Mannu Raja v. State of M.P., (AIR 1976 SC 2199). If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without -9- corroboration (see State of M.P. v. Ram Sagar Yadav (AIR 1985 SC 416). Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make dying declaration, the medical opinion cannot prevail (Nanahau Ram and another v. State of M.P. (AIR 1988 SC 912).
7. The Supreme Court thereafter in Laxman v. State of Maharashtra (AIR 2002 SC 2973) observed that what essentially required is that the person who records the dying declaration must be satisfied that the deceased was in a fit mental condition and that the certificate by the Doctor is a rule of caution. It would be relevant to reproduce the observation made by the Supreme Court in this case for considering/assessing the evidence led by the prosecution in support of its case in respect of written dying declaration.
"The Juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party
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is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most case, however, such statements are made orally before death
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ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
(emphasis supplied)
8. Keeping the law laid down by the Supreme Court in view we would now proceed to consider the evidence led by the prosecution in the nature of written dying declaration (Ex.P9). The dying declaration was recorded by PW.23. At the relevant time he was working as PSI in Dibburahalli
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Police Station. He received an intimation regarding admission of the deceased in the Government Hospital. He visited the Hospital and having found that she was capable of talking, recorded her statement in the presence of PWs.6, 8, 13 and 14. The dying declaration recorded by PW.23 was placed on record and marked as Ex.P9. After recording the dying declaration, he obtained signatures of both the doctors and so also the other witnesses. Then he states that he returned to the Police Station and registered the crime. He also apprehended accused No.3 on 5.10.2005 and accused No.4 on 25.11.2005.
8.1 In the cross-examination, he simply states that the deceased was in emergency ward and she was under
treatment. He does not state where did he record the declaration. It was submitted by learned Counsel appearing for the respondents that there is a contradiction in the evidence of this witness and in the evidence of doctors as to the place where the dying declaration was recorded. The doctors in their evidence state that the statement of the deceased was recorded outside the Hospital. The learned
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Judge also made specific reference to the so-called contradiction between the evidence of doctors and of this witness. However, on careful perusal of the deposition of PW.23, we do not find this witness having stated that he recorded the dying declaration in the emergency ward.
8.2 Further, in the cross-examination, he admits that he entered the special ward without permission of the doctors in writing. He then fairly admits that the doctors did not certify about mental condition of the deceased before recording her statement. He also did not make endorsement to the effect that the statement was recorded in the presence of doctors/witnesses. He then states, in the cross-
examination, that the deceased had burn injuries on her hands, legs, face and all over body to the extent of 95%. He did not obtain impression of the toe of the deceased on Ex.P9 to show that it was her statement. He denies the suggestion that deceased was not in a position to give her statement and that he had not recorded it and fabricated the same on the directions of the Dy.SP.
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9. In the backdrop of the evidence of this witness who recorded the dying declaration (Ex.P9) we perused the evidence of both the doctors very carefully. In our opinion, the evidence of doctors inspire confidence. The doctors are independent witnesses and are disinterested in the outcome of the case. In other words, it is not the case of defence that the doctors had any interest in the case or in conviction of the accused. PW.13 in the examination-in-chief states that she examined the deceased after she was brought to the Hospital. She was conscious and was responding for the commands. According to PW.13, she had suffered burn injuries to the extent of 95%. When the doctor took history regarding the burn injuries, she told to her (PW.13) that on account of rape by the "villagers" she attempted to commit suicide by pouring kerosene on her person and setting herself on fire. PW.13 gave her first aid and sent intimation to the Police and advised to shift her to Victoria Hospital at Bangalore for further treatment. She then states that Police reached the Hospital and recorded the statement/declaration of Smt.Gowramma (deceased) "in her presence" and also in
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the presence of PW.14. She also signed the dying declaration. Her signature is marked as Ex.P9(b). The doctor further states that she had sustained burn injuries on her both palms and therefore, thumb impression was not taken on the statement. She again reiterates in the examination- in-chief that the deceased told to the Police that 3 persons of her village raped her. She also states that the deceased told her that she had revealed the incident of rape to PW.3, the grand-mother and she also expressed her apprehension regarding the danger that she (PW.3) may tell the incident of rape to her husband and he may beat her and hence, she attempted suicide. Then she was shifted to Victoria Hospital, Bangalore.
9.1 In the cross-examination PW.13 states that he treated the deceased for about 20 minutes along with PW.14. She had burn injuries all over her body. Then in the cross- examination she makes reference to the entry made by her in the MLC register. The relevant entry in the MLC register was marked as Ex.P13(a). Then, she specifically states in
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the cross-examination that Ex.P13(a) is in her handwriting. She denies the suggestion that words "suicide attempt was made" were added in Ex.P13(a) subsequently. She states that she added the said portion after giving first aid to the patient, and after coming to know about the cause of burn injuries from the patient. She also denies the suggestion that the names of persons who committed rape, which were written in the MLC register [Ex.P13(a)], were inserted by her at the instance of public prosecutor. Further, in the cross- examination, she fairly states that she did not know who wrote down the dying declaration (Ex.P9). However, she states that when she signed it, she put the date below her signature indicating as to when it was written. She also admits that Police did not obtain permission from her to record the statement of the deceased. She further states that the statement was recorded when the patient was brought out of the Hospital to take her to the Ambulance in the Hospital compound for shifting her to the Victoria Hospital, Bangalore. She admits that she did not certify the mental faculty and consciousness of the patient at the time
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of recording her statement. Then she denies the suggestion that the deceased was not able to speak on account of the burn injuries on her face and other vital parts of the body.
10. From bare perusal of the evidence of this witness (PW.13) the following facts clearly reveal; the deceased was admitted in the Hospital with 95% of burn injuries, she herself disclosed to the doctors the cause of burn injuries and she made specific reference to the rape committed by the villagers. Though Doctor did not name those persons in her evidence, her attention was invited to MLC register [Ex.P13(a)] showing the names of the accused as the persons who committed rape. It further reveals that she (PW.13) also made reference to the disclosure made by her (deceased) about the rape to the grand mother (PW.3) and her apprehension that she (PW.3) may disclose the incident of rape to her husband and that he may beat her and hence she committed suicide. Lastly, PW.13 admits that the statement was recorded in her presence and that she was able to speak though she had sustained burn injuries on her face and on other vital parts of the body.
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11. Learned Counsel for the respondents while making comments on the evidence of this witness submitted that no procedure laid down by the judicial pronouncement was followed by this witness while recording the dying declaration. The doctor did not certify either before or after recording of the dying declaration about her mental condition nor did he state in the Court anything about her mental condition. In support of this contention, he placed reliance upon the judgments of this Court in Shabeera Hafijasab Inamdar & Ors., vs. State of Karnataka (ILR 1998 KAR 592); Irappa vs. State of Karnataka (ILR 1998 KAR 1387) and Shantaam Dattatraye & Ors., vs. The State of Karnataka (ILR 2003 KAR 2838).
11.1 The gist of the judgments relied upon, on perusal, is that the dying declaration cannot be relied upon, unless the prosecution proves that the person making a declaration was physically and mentally fit to make a statement regarding the cause of death.
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12. Then we perused the evidence of Dr.Narendra (PW.14). He corroborates the evidence of PW.13 in all respect. He also states that the deceased herself informed them about the incident of rape and since she was apprehending the danger that the grand-mother would reveal the incident to her husband and others, she poured kerosene and set herself on fire. He also admits his signature on Ex.P9. Both the witnesses, namely, PWs.13 and 14 have put their signatures, which are marked as Exs.P9(b) and (c). He admits, in the cross-examination, that the dying declaration was recorded by PSI (PW.23). He denies the suggestion that the dying declaration was not recorded in front of the Hospital. Further, he specifically denies the suggestion that deceased was not in a fit condition to speak, though he admits that he did not certify on the dying declaration to that effect. The evidence of PW.14 corroborates Dr.Vagdevi (PW.13) in all respect.
13. We therefore perused the evidence of PW.8, the another witness who was present when the statement
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(Ex.P9) was recorded by PW.23. He states in the examination-in-chief that he immediately rushed to the hospital the moment he came to know about the incident of burning and admission of the deceased in the Hospital. He states that when he reached the Hospital the PSI, Dr.Vagdevi and Dr.Narendra (PWs.23, 13 and 14) were present. He then states that the deceased told that the accused committed rape on her and for that reason, she poured kerosene and set herself on fire thinking that she will be humiliated if this fact is disclosed to her family members. There is some variation in the narration given by this witness and the narration given by the Doctors. But it is a matter of perception and so also the capacity to reproduce narration in the same language, as has been used by others. In other words, one may not use the same language as was used by the other while narrating the same incident in his own language. Merely because he did not make reference to the grand mother, it cannot be stated that the deceased did not narrate the incident in his presence. According to this witness, the statement was recorded in his presence. In the
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cross-examination he states that she was kept in burns ward and two doctors were treating her. He also admits, in the cross-examination, that his signature was also obtained on the statement of the deceased (Ex.P9). He further states that the statement was recorded personally by PSI. He admits that he had not taken permission to enter the ward, but the fact remains that he was in the ward and his signature was also obtained on the dying declaration. He denies the suggestion that the deceased was not in a position to talk. He also denies the suggestion that the dying declaration was prepared in the Police Station and he signed it in the Police Station. This witness has given all the details as were given by both the doctors. It undoubtedly reveals from his evidence that he was present in the ward, the statement of the deceased was recorded in his presence and she had disclosed that the accused persons committed rape on her. A perusal of the statement (Ex.P9) clearly shows signature of all the three witnesses, namely, PWs.8, 13 and 14. In view of the signatures on the dying declaration and more particularly, signatures of two independent witnesses,
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namely, the doctors, we are satisfied that the statement was recorded by PW.23 on the date and at the time stated therein.
14. It is true that there is no certificate of the Doctors about the mental condition of the deceased. Normally, the Courts in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, look up to the medical opinion. But, where an eyewitness state that the deceased was in a fit mental condition and was conscious state of mind to make the dying declaration, the medical opinion will not prevail, nor it can be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable (see Laxman's case). It is well settled that a dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most of the cases, such statements are made orally before death ensues and is reduced to writing by someone like a
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magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to ensure authenticity it is useful to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded there is no specified statutory form for such recording.
15. In the present case, the PSI (PW.23) has recorded the statement (Ex.P9) in the presence of three eyewitnesses, namely, PWs.13, 14 and 8. All the three witnesses, as observed earlier, were present when the dying declaration was recorded. They have also clearly stated that the deceased was in a condition to speak and the details were given by her. We do not find any reason to doubt them in the facts and circumstances of the case and also the other evidence to which we will advert to little later. At this stage, we would also like to refer to the judgment of the Supreme
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Court in Smt.Laxmi v. Omprakash (AIR 2001 SC 2383). In this case the Supreme Court undoubtedly deprecated the practice of Police Officers recording dying declaration except where condition of the deceased was so precarious that no other alternative was left. In other words, merely because the statement of a deceased, as contemplated by Section 32(1) of the Evidence Act, is recorded by a Police Officer, cannot be a ground for rejecting the same outright. If the Court is satisfied that the investigating agency was left with no alternative, and if the statement recorded by Police Officer, otherwise satisfies all the tests governing dying declarations, it can form the basis for conviction with or without corroboration, as the case may be.
16. In the present case, the rape was committed on 26.9.2005 at 11.00 pm. The incident of burning took place on 27.9.2005 at 5.00 pm. The deceased was admitted to the Hospital around 7.20 pm., and within an hour dying declaration was recorded and that too in front of the Hospital when she was being shifted to Victoria Hospital, Bangalore.
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There was hardly any time for the investigating agency to secure presence of Taluka Executive Magistrate for recording her statement. Then deceased was immediately taken to Bangalore and admitted in the Victoria Hospital at 10.30 pm., and within less than three hours she succumbed to the injuries and died at 1.30 am., on 28.9.2005. It is thus clear that it was impossible for the investigating agency to secure presence of Taluka Executive Magistrate to record dying declaration of the deceased and therefore, PW.23 was fully justified in recording the declaration in the presence of doctors.
17. Apart from the written dying declaration (Ex.P9), the entry in the MLC register also reveals the names of four accused, which were given by the deceased to the doctor. The dying declaration gives all particulars, which were stated by all the four witnesses including the entry in MLC register made by PW.13. The evidence in the nature of dying declaration in writing, in our opinion, inspires confidence and we fail to understand as to why learned judge discarded
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the same by recording reasons only in one paragraph, namely, paragraph 29 in the judgment and that too relying upon the judgment of this Court in Shabeera Hafijasab Inamdar case. As observed earlier, the judgment of the Supreme Court in Laxman's case make the position of law further clear in respect of the certification by the doctor about the mental fitness of the dying person. Keeping that in view and considering the facts and circumstances of the case in Shabeera Hafijasab Inamdar and so also the other two judgments relied upon by the learned Counsel for respondents, in our opinion, they will not apply to the facts of the present case.
18. That takes us to consider the oral dying declaration and the other evidence. At the outset we would like to consider the evidence of PW.3, the grand mother. It is this witness to whom the deceased had disclosed the incident of rape immediately on her reaching home at mid- night. PW.3 in her evidence though does not name all the four accused, she takes name of Gangadharappa-accused
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No.1 and states that he and 3 or 4 others committed rape, as informed by the deceased. In view thereof, she was declared hostile. In her examination-in-chief she further states that the deceased told her that she was dragged to Jawar crop and Gangadharappa and 3 or 4 other persons committed rape. PW.3 then states that the deceased poured kerosene and set herself on fire when she was sitting outside the house. She did not go inside the house. She however states that some other persons came to her house, poured water and extinguished the fire and offered water to the deceased and then shifted to the Hospital. Though she does not name all the accused, in her examination-in-chief she states that the deceased burnt herself having been insulted on account of the rape. In the cross-examination by the Public Prosecutor she admits that the deceased told her the names of accused persons having dragged into Jawar crop and committed rape. In the cross-examination, she clearly states that the deceased was able to talk when she was taken to the Hospital.
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19. In this backdrop we have perused the evidence of PW.1. He also turned hostile. He did not support the prosecution case at all. It was submitted that this witness clearly states that the deceased was not in a position to talk. We did not find any force in the submission in view of the evidence of several other witnesses, to which we have made reference in the foregoing paragraphs. Similar is the case of PW.2-Venkateshappa. This witness also did not support the prosecution case at all though in the examination-in-chief he states that he learnt about the rape on the deceased from his wife.
20. PW.4-Narasimhaiah is the father-in-law of deceased. He states that he rushed to the house when he was told about the incident by one Krishnappa. When he went inside the house, he found his daughter-in-law was lying with burn injuries all over her body. He asked her why she did so and she told him that when she went outside the house to serve food to PW.3, the accused persons caught hold of her, stuffed her mouth with cloth, took her to Jawar
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crop and committed rape. It is true that he is giving different version to some extent than what was stated by PW.3. He states that when the deceased came outside the house to serve food to PW.3 the incident occurred, whereas, according to PW.3, the incident occurred when the deceased went outside the house to answer natures call. The version of PW.3 appears to be more probable, because the incident occurred after 11 pm. This witness changed his version to that extent, for the reason best known to him. However, the fact remains that he was told by the deceased herself that she attempted to commit suicide because she was raped and she never wanted to be humiliated and beaten by her husband. In the cross-examination nothing worth was elicited so as to discard the evidence of this witness completely.
21. PW.15, the Police Constable states that he also went to the Hospital along with PW.18 and he states that the deceased told them that she was raped by the accused persons. Similarly, PW.18 who shifted the deceased to the Hospital in a jeep, when enquired, the deceased told him
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that the accused took her forcibly to Jawar crop and committed rape. Thus there are four witnesses, namely, PWs.3, 4, 15 and 18 who support the prosecution case insofar as the oral dying declaration is concerned. If the oral dying declaration was the only evidence before the Court, perhaps that would have created some doubt about the authenticity and to rest the order of conviction on the basis thereof. But in this case we have on record the evidence in the nature of oral as well as written dying declaration and we have observed that the evidence in the nature of written dying declaration inspires confidence. The evidence in the nature of oral dying declaration supports the written declaration.
22. We may also make reference to one more factual aspect, namely, disclosure of the incident by the deceased to the grand mother (PW.3) even before she attempted to commit suicide. At that stage, she was absolutely fit, physically as well as mentally. She had disclosed the incident of rape and the names of accused who committed
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rape. The evidence of PW.3 and the evidence in the nature of dying declaration, oral as well as written, is consistent.
23. The cumulative effect of the evidence of these witnesses, in our opinion, clearly points to the guilt of the accused persons. The view taken by the learned Sessions Judge, in our opinion, is not only perverse but he also committed manifest illegalities in arriving to the conclusion of innocence of all the four accused. He placed reliance upon the judgment of this Court completely ignoring the law laid down by the Supreme Court in Laxman's case. He also failed to appreciate the evidence in the manner in which he ought to have and seems to have discarded the evidence in the nature of written dying declaration solely on the basis that the doctor had not certified about the mental fitness of the deceased.
23.1 The trial Court, after recording the findings in respect of written dying declaration, proceeded to consider the evidence of the other witnesses, namely, PWs.1, 3, 5, 15
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and 18, who were examined by the prosecution in support of the oral dying declaration. The appreciation of evidence of these witnesses, in our opinion, by the learned judge, was not proper. The view taken by the trial court on appreciation of evidence, in our opinion, is perverse and is not based on the evidence on record. As observed earlier, in our opinion, the evidence on record is sufficient to bring home the guilt of the accused.
24. The appellants were also charged and tried for the offence punishable under the provisions of SC/ST (POA) Act, 1989. The learned SPP, however, submits that since there is no evidence, he does not press the appeal insofar as this charge is concerned.
25. In the result, we pass the following:
ORDER The judgment and order dated 5.4.2007 in SC.No.287/2005 acquitting all the accused for the offence punishable under Section 376(2)(g), 306, 506 read with
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Section 34 of IPC is set aside and all the four accused are convicted for the offence punishable under these provisions.
Insofar as the offence punishable under the provisions of SC/ST (POU) Act, 1989 is concerned, the order of acquittal is confirmed.
26. We have heard the learned Counsel for the parties on sentence to be awarded for the offence under Sections 376(2)(g), 306, 506 read with Section 34 of IPC. After having heard learned Counsel for the parties on the sentence and having considered the passage of time, we pass the following:
ORDER The respondent Nos.1 to 4 (accused Nos.1 to 4) are convicted for the offence punishable under Section 376(2)(g) read with Section 34 of IPC and are sentenced to suffer RI for a period of 10 years and to pay a fine of Rs.15,000/- each, in default, to undergo SI for a period of two years.
Respondent Nos.1 to 4 (accused Nos.1 to 4) are convicted for the offence punishable under Section 306 read
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with Section 34 of IPC and are sentenced to suffer RI for a period of 6 years and to pay a fine of Rs.10,000/- each, in default, to undergo SI for a period of one year.
The respondent Nos.1 to 4 (accused Nos.1 to 4) are convicted for the offence punishable under Section 506 read with Section 34 of IPC and are sentenced to suffer RI for a period of 2 years and to pay a fine of Rs.2,000/- each, in default, to undergo SI for a period of three months.
The sentence awarded under different provisions to run concurrently.
If the fine amount is paid, 50% thereof be paid to the husband of the deceased and if he is not alive, then to his mother/father. The sessions Court shall ensure that the amount of fine, if deposited, is paid to the husband of the deceased and/or his parents.
The accused are directed to deposit the fine amount within a period of eight weeks from today. They are also given eight weeks time to surrender.
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It is needless to mention that the accused will be entitled for set off of the period of detention undergone by them during the investigation and the trial.
Sd/-
JUDGE Sd/-
JUDGE nd/-