Karnataka High Court
Noorsab Alias Noor Ahmed S/O ... vs State Of Karnataka on 12 September, 2000
Equivalent citations: 2001CRILJ425, 2001 AIR - KANT. H. C. R. 100, (2001) 3 ALLCRILR 146
Author: B. Padmaraj
Bench: B. Padmaraj, S.R. Bannurmath
JUDGMENT B. Padmaraj, J.
1. Heard the arguments of the learned counsel for the appellant and the learned Government Pleader for the respondent/State and carefully perused the case records in detail with their assistance.
2. The appellant has been convicted under Section 302, IPC and sentenced to undergo life imprisonment and a fine of Rs. 500/-, in default, to undergo further S.I. for 3 months, for causing the death of this wife Smt. Mumtaz by pouring kerosene over her body and setting her ablaze. Hence, this appeal.
3. The deceased Smt. Mumtaz was married to the accused about 10 years prior to her death and she bore three children through the accused. During the relevant time of the occurrence, the deceased was living with the accused in a rented house in Janatha Plot in Mudhol. On the night of 16-5-1995 at about 10 p.m. or so, the accused returned to the house in a drunken condition and picked up a quarrel with the deceased. During such quarrel, the accused had also beat the deceased. The said quarrel went on for quite some time during the night. Then at about 1.30 or 2 a.m., the accused poured kerosene, which was found in the kitchen, over the body of the deceased and set fire to her by burning match stick. The deceased screamed or cried out in pain. On hearing her cries and screams, the neighbours came there and tried to catch hold of the accused. In the meantime, the deceased poured water on her person and extinguished the flames and ran out of the house. The deceased ran screaming to the house of her parents situated at some distance from the house of the accused in the same locality. Then she was taken to the hospital for treatment by her parents and some other neighbours. On that relevant night, the accused and the deceased were only present in their house and their three children were in the house of the parents of the deceased. No other person was present in the house when the accused had set fire to the deceased. P.Ws. 1 and 2 are the parents of the deceased; P.W. 11 Dr. Vasanth who was then working as a Chief Medical Officer in the Government Hospital at Mudhol, examined the deceased Mumtaz who was brought to the hospital with burn injuries all over her body at about 1.30 a.m. in the early hours of 16-5-1995. The deceased had sustained 80% burns on her body and her condition was serious when brought to the hospital. But she was able to speak and was capable of understanding the questions put to her and was in a position to give rational answers to the questions put to her. Thus the deceased Smt. Mumtaz was found to be quite conscious and was in a fit mental condition to understand the questions and give her reply. The deceased was admitted as an in-patient and the doctor P.W. 11 gave her treatment. He also gave intimation to the police regarding the admission of the deceased to the hospital by about 4 p.m. in the evening and he could not inform the police earlier than this because he was attending on the injured and was also fully engaged in his work. The first information in respect of this occurrence was given by the father of the deceased to the PSI P.W. 21 at the Mudhol P.S. at about 5 p.m. on 16-5-1995, on the basis of which the PSI P.W. 21 registered a case and took up the investigation. During the course of this investigation, he had visited the scene of incident and conducted the observation mahazar as per Ex. P. 15 and seized thereunder M.Os. 1 to 5 from the scene of incident. He did not find any signs of stove burst at the spot. On the same day he gave a requisition to the Taluka Executive Magistrate for recording the dying declaration of the deceased and had also recorded the further statement of the complainant P.W. 1. The accused was also arrested on 16-5-1995 itself and was forwarded to the Court for his judicial remand, P.W. 24, who was then working as Taluka Executive Magistrate at Mudhol, received a requisition from the PSI P.W. 21 to record the dying declaration of the deceased. On receipt of such a requisition from the police, P.W. 24 visited the hospital and recorded the dying declaration of the deceased as per Ex. P. 6 in the presence of the doctor P.W. 11. P.W. 24 Visited the hospital at about 7 p.m. and on reaching there, he saw the deceased Mumtaz who was then admitted for treatment in the in-patient ward of the hospital. The deceased was found to be lying on a cot in the said ward. The doctor P.W. 11 was then present in the ward. P.W. 24 asked the doctor P.W. 11 as to whether the deceased is capable of giving her statement. He was told by the doctor P.W. 11 that the deceased is mentally fit to give her statement. He also put certain questions to the deceased and he was quite satisfied about the mental condition of the deceased to give her statement. He recorded the statement of the deceased in question-answer from as per Ex. P. 6, who was then quite conscious and was mentally fit to give her statement. The said statement of the deceased was recorded during the interval between 7 and 7.15 or 7.20 p.m. P.W. 24 had taken all the necessary precautions before recording the statement of the deceased and the deceased gave her statement to P.W. 24 when she was conscious and mentally fit to understand the question and give her replies. As the left thumb of the deceased had sustained burn injuries, P.W. 24 obtained the right thumb mark of the deceased on her statement Ex. P. 6. Apart from affixing his own certificate to the dying declaration Ex. P. 6 of the deceased, he also obtained the endorsement of the doctor P.W. 11 for having recorded the dying declaration in his presence. Thereafter the deceased was referred to the District Hospital at Bijapur for further treatment. The deceased was once again readmitted to the Government Hospital at Mudhol for treatment on 25-5-1995. Subsequently on 27-5-1995 at about 5 p.m. in the evening, the deceased had expired while undergoing treatment in the hospital. Consequent upon the death of the deceased in the hospital, her dead body was taken by her father P.W. 1 who got it buried in the burial ground. Later, the dead body of the deceased was exhumed from the place where it was buried and was subjected to post-mortem examination by the doctor P.W. 11 with the assistance of a Lady Medical Officer. In the opinion of the doctor P.W. 11, the deceased had died due to shock and breathlessness as a result of the burn injuries sustained by her. Thus the deceased was alive from 16-5-1995 to 27-5-1995 for a period of about ten days even after sustaining the serious burn injuries. Exs. P. 9 and 10 are the case papers in respect of the deceased Mumtaz regarding her treatment as an in-patient in the Government Hospital at Mudhol on both occasions. After completion of the investigation, the appellant was charged and tried for the offence under Section 302, IPC by the trial Court.
4. The learned trial Judge on consideration of the entire evidence on record and after hearing the arguments on both sides has convicted and sentenced the accused as stated supra. Hence, this appeal.
5. The learned counsel for the appellant has vehemently contended before us that as there is no direct evidence in the case, it is not proper for the Court to convict and sentenced the appellant merely relying upon the dying declaration which according to her is not corroborated by any other witness in its material particulars. She has further contended that the dying declaration having been recorded in the suspicious circumstances cannot be held to be proved. While elaborating this submission she contended that the deceased was not at all in a position to speak after the alleged incident as could be seen from the contents of the FIR and hence the deceased could not have given her statement in the manner as has been recorded by the Taluka Executive Magistrate P.W. 24. It was also contended in the alternative that the deceased Smt. Mumtaz having died after a lapse of about ten or eleven days of the incident and the deceased being got discharged against medical advise, the deceased in all probability might have died due to the negligence of the parents of the deceased and hence the appellant cannot be convicted for the offence under Section 302, IPC and on the other hand the act attributed to the accused would only attract the offence under Section 304 of IPC.
6. As against this the learned Government Pleader for the respondent/State contended that the dying declaration has been duly recorded by the Taluka Executive Magistrate P.W. 24 in the presence of the doctor P.W. 11 and the material facts corroborated by the other evidence produced in the case. He, therefore, contended that the dying declaration recorded by the Taluka Executive Magistrate P.W. 24 being genuine and reliable, the trial Court was justified in basing the conviction of the accused under Section 302, IPC on the declaration Ex. P. 6. He further contended that the deceased had died due to the burn injuries caused by the accused and that being so merely because the deceased had died after eleven days and merely because there was some negligence on the part of the parents of the deceased in getting her discharged from the hospital, would not by itself bring down the offence from Section 302 to 304, IPC. He, therefore, contended that the trial Court was justified in convicting the accused under Section 302, IPC.
7. In the face of the submissions made on both sides, the question that would arise for consideration is whether the order of conviction made by the trial Court can be sustained in law.
8. On the basis of the post-mortem examination conducted by the doctor P.W. 11 on the dead body of the deceased and the evidence of the doctor P.W. 11 who besides conducting the post-mortem examination had also treated the deceased in the first instance and also after the deceased was readmitted to the hospital at Mudhol, the conclusion is irresistible that the deceased Smt. Mumtaz died on account of the burn injuries sustained by her. As we have already noticed the deceased was alive for a period of about ten days.
9. The prosecution had mainly relied upon the dying declaration of the deceased recorded by the Taluka Executive Magistrate P.W. 24 at the hospital as per Ex. P. 6, to base the conviction upon the accused under Section 302, IPC. Now the question that arises for consideration is whether the dying declaration of the deceased Ex. P. 6 can be held to be true and voluntary and can be relied upon. It is now well settled that a dying declaration, if found to be true and voluntary, can form the sole basis of conviction even without corroboration. In the instant case the dying declaration Ex. P. 6 of the deceased Smt. Mumtaz was recorded by the Taluka Executive Magistrate P.W. 24 in the presence of the doctor P.W. 11 after observing all the necessary formalities and taking all the necessary requisite precautions before recording such statement. The deceased was found to be quite conscious and was in a fit mental state when giving her statement Ex. P. 6 to the Taluka Executive Magistrate P.W. 24. It has to be pointed out that the Taluka Executive Magistrate P.W. 24 who had visited the hospital on receipt of requisition from the police, ascertained the fitness of the deceased-Mumataj from the doctor P.W. 11 and also after ascertaining it himself had recorded her dying declaration as per Ex. P. 6. It is no doubt true that the said dying declaration Ex. P. 6 is not in his own hand, but in fact it was written by one of his staff when he was questioning the deceased and the deceased was giving her replies. Merely because the Taluka Executive Magistrate P.W. 24 himself did not record in his own hand and the same has been written by one of his staff, it cannot be regarded as suspicious. It bears the signature of the doctor P.W. 11 and also that of the Taluka Executive Magistrate P.W. 24. There is nothing on record to show that the Executive Magistrate P.W. 24 is not telling the truth. The Executive Magistrate P.W. 24 after receiving the requisition from the police, had visited the hospital at about 6.30 or 7 p.m. and recorded her statement while the deceased was found lying on a cot in the inpatient ward of the hospital. The said statement was recorded in the presence of the Doctor PW-11. There is no material on record to suggest or to indicate that the Taluka Executive Magistrate PW-24 was under the influence of any person or he had any reason to oblige anybody. The Doctor PW-11 has clearly stated that he was present when the Executive Magistrate PW-24 recorded the statement of the deceased and the deceased was quite conscious to give her statement. The Doctor PW-11 made a note of it in the case paper Ex. P. 9. The evidence of the Doctor PW-11 thus receives support from the contemporaneous document Ex. P. 9. Neither the Doctor PW-11 nor the Taluka Executive Magistrate PW-24 had any reason to falsely depose against the accused or to prepare false documents against the accused. In the cross-examination, the Executive Magistrate PW-24 has stated that he gave his testimony in Court by refreshing his memory to the records made by him. We cannot overlook the reality that the Executive Magistrate PW-24 comes to the Court for giving evidence after a certain lapse of time and he had also several other duties to be attended to in the meanwhile. The evidence giving process should not be bog down to memory test of a witness. The Executive Magistrate PW-24 who recorded the dying declaration must answer the questions in Court as far as possible only with reference to what he had recorded at the time of recording the statement of the deceased Smt. Mumtaz as per Ex. P. 6. Such records are the contemporaneous records made by him and hence for refreshing his memory, it is always advisable that he looks into those records before answering the questions. Section 159 of the Evidence Act is very clear in this regard. We may incidentally mention that even if the investigation is illegal or even suspicious, the rest of the evidence can be scrutinised independently of the impact of it. Otherwise, the criminal trial will plummet to the level of Investigating Officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by the Investigating Officers. Criminal justice should not be made a casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it, albeit, the Investigating Officers suspicious role in the case. This we say so because we find that the Investigating Officers in this case have not acted with due diligence and their role is not free from suspicion. Further, the absence of the doctor's endorsement on the dying declaration Ex. P. 6 of the deceased recorded by the Executive Magistrate PW-24 as to the mental fitness of the deceased to make the declaration, by itself is not sufficient to discard the dying declaration Ex. P. 6 especially when the same has been recorded in the presence of the Doctor PW-11 and it bears his endorsement to the effect that it was recorded in his presence by the Taluka Executive Magistrate PW-24. In the case of Koli Chunilal Savji v. State of Gujarat, reported in 2000 SCC (Cri) 432 : (1999 Cri LJ 4582), the three-Judge Bench of the Hon'ble Supreme Court has held that the requirement of such a certificate is a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be truthful one and voluntary. The relevant observations made in this regard are found at para No. 7 which reads as under :
7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr. Keswani, that in the absence of the doctor while recording the dying declaration, the said declaration loses its value and cannot be accepted. Mr. Keswani in this connection relies upon the decision of this Court in the case of Maniram v. State of M.P., (1994 Cri LJ 946). In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander v. State of Punjab this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur v. State of Punjab, (1994 (4) Scale 447) this Court has examined the same question and held (SCC p. 547, para 5) :
As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because the endorsement was made not on the dying declaration itself but on the application, that would not render the dying declaration suspicious in any manner.
10. Therefore, the ultimate test is whether the dying declaration Ex. P. 6 can be held to be a truthful one and voluntarily given by the deceased-declarant. In the instant case, the evidence of the Doctor PW-11 who had an occasion to examine and treat the deceased, would reveal that the deceased was quite conscious and was in a fit mental condition to make the statement. Even the Taluka Executive Magistrate PW-24 before proceeding to record the statement Ex. P. 6, ascertained about the condition of the deceased and found the deceased to be mentally fit to make the statement in question. In fact, the dying declaration Ex. P. 6 was recorded in the presence of the Dr. PW-11 and he has also spoken to that fact in Court and has made an endorsement to that effect on Ex. P. 6. The Executive Magistrate PW-24 also found that the deceased was in a fit mental condition to make her statement and affixed a certificate to the effect on Ex. P. 6. As we have already noticed in the instant case, Doctor PW-11, in whose presence the statement of the deceased-declarant was recorded has also been examined and has clearly stated that the deceased was quite conscious and was in her senses and was in a fit condition to make the declaration. Even the Magistrate PW-24 who recorded the statement Ex. P. 6 has been examined as a witness to speak to the condition of the deceased. Both the Doctor PW-11 and the Magistrate PW-24 have categorically stated in their evidence that the deceased was in a fit condition to make her statement and she did in fact gave her statement as per Ex. P. 6. PW-24 has stated that as soon as he reached the hospital in the in-patient ward of the Doctor PW-11, he had asked the Doctor whether the deceased is mentally fit to give her statement and he was told by the Doctor PW-11 that the deceased is in a fit condition to make her statement. In view of the evidence of the Dr. PW-11 and also in view of the evidence of the Magistrate PW-24 and there being no reason either for the Doctor PW-11 or for the Magistrate PW-24 to help the prosecution and to give a false evidence against the accused, we see no justification to discard the dying declaration Ex. P.6. The evidence of the Doctor PW-11 and of the Magistrate PW-24 corroborate with each other. On the facts and in the circumstances of the case, we have no hesitation to come to the conclusion that the dying declaration Ex. P. 6 is truthful one and voluntary and hence, it can be relied upon by the prosecution in bringing home the charge against the accused and the prosecution case must be held to have been established beyond reasonable doubt. On the facts and in the circumstances of this case, there has been no undue delay in recording the statement of the deceased. There is no material on record to show that there were any relatives of the deceased nearby her when her statement Ex. P. 6 was recorded. We have ourselves scrutinised the dying declaration Ex. P. 6 and we have also carefully perused the evidence of the Doctor PW-11 in whose presence, it was recorded and the Magistrate PW-24 who recorded the same, in the light of the other circumstances appearing in the case. We have no hesitation to come to the conclusion that Ex. P. 6 must be held to be a voluntary, truthful one and therefore, any Court can safely rely upon it. We find no infirmity either in the evidence of the Magistrate PW-24 or in the manner of recording the dying declaration Ex. P. 6. Even the evidence of the parents of the deceased viz. PWs. 1 and 2 given in Court and some of the persons of the locality, substantially corroborates the truthfulness of the dying declaration of the deceased recorded by the Magistrate as per Ex. P. 6. It is no doubt true that in the first information report Ex. P. 1 lodged by the complainant PW-1 before the PSI, it has been mentioned that the deceased did not talk. But the complainant PW-1 in his evidence in Court has stated that he was very much worried about the condition of his daughter and hence, when the police recorded his statement, he only gave a brief statement but subsequently, he has given vivid details about the occurrence. It would, therefore, be not proper to discard the dying declaration Ex. P. 6 only on the basis of such statement in Ex. P. 1 and more so when the evidence of the Doctor PW-11 would clearly indicate that when the deceased was brought to the hospital for treatment, she was in a position to talk and was quite conscious.
11. It is no doubt true that the deceased had died after 10 days of her sustaining the burn injuries at the hands of this accused. It is equally true that the deceased was got discharged from the hospital against the medical advice and subsequently, she was re-admitted to the hospital where she succumbed to her injuries while undergoing treatment in the hospital. But in view of the evidence of Doctor PW-11 and in view of the Explanation (2) to Section 299, IPC, we are unable to accept the contention of the learned counsel for the appellant that the offence committed would fall under Section 304, IPC and not under Section 302, IPC. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of Jagtar Singh v. State of Punjab, reported in (1999) 1 SCC (Cri) 120 : (1999 Cri LJ 20) wherein the deceased had died 16 days after the incident and the medical evidence on record showed that the death was caused by septicemia which was due to head injury and the said injury was sufficient in the ordinary course of nature to cause death and in the circumstances, it was held that the appellant was rightly convicted under Section 302, IPC. In the instant case also, the evidence of the Doctor PW-11 would clearly indicate that the deceased had died due to the burn injuries sustained by her at the hands of the accused. That being so, in view of Explanation (2) to Section 299 of IPC, the accused is liable to be convicted for the offence undern Section 302, IPC.
12. Therefore, we find no reason to interfere with the judgment and order of conviction of the Trial Court. There is no merit in any of the contentions urged on behalf of the appellant.
13. In the result, therefore, this Criminal Appeal filed by the appellant is dismissed and the judgment and order of conviction and sentence passed by the Trial Court is hereby confirmed.