Karnataka High Court
M Nanjundaswamy vs State Of Karnataka By on 16 November, 2018
Equivalent citations: 2019 (1) AKR 253, 2019 (2) KCCR SN 148 (KAR)
Bench: K.N.Phaneendra, K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE K SOMASHEKAR
CRIMINAL APPEAL No.652 OF 2014
BETWEEN:
M NANJUNDASWAMY
S/O MARISWAMAPPA
AGED ABOUT 25 YEARS
OCC:AUTO DRIVER
RESIDING AT MADAPURA VILLAGE
H D KOTE TALUK
MYSORE DISTRICT.
...APPELLANT
(BY SHRI HASHMATH PASHA SENIOR COUNSEL
FOR SHRI RANJAN KUMAR P, ADVOCATE)
AND:
STATE OF KARNATAKA
BY H D KOTE POLICE STATION
MYSORE DISTRICT
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR.
...RESPONDENT
(BY SHRI VIJAY KUMAR MAJAGE, ADDL. SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED:10/12.6.14 PASSED BY THE V
ADDITIONAL SESSIONS JUDGE, MYSORE IN
S.C.No.254/12 CONVICTING THE APPELLANT/ACCUSED
No.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION
302 OF IPC AND THE APPELLANT/ACCUSED No.1 IS
SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND
TO PAY FINE OF RS.10,000/- (RUPEES TEN THOUSAND
ONLY) AND IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO RIGOROUS IMPRISONMENT FOR SIX MONTHS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, K N PHANEENDRA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Accused No.1, the appellant herein who suffered a judgment of conviction and sentence passed by the trial Court in SC No.254/2012 on the file of the V Additional Sessions Judge, Mysore, in convicting the accused for the offence punishable under Section 302 IPC and sentencing him to undergo imprisonment for life and also to pay a fine of Rs.10,000/-, with default sentence of rigorous imprisonment for six months. It is particular to note here that accused Nos. 2 to 4 were acquitted of all the charges and accused No.1(Appellant) was also 3 acquitted for the offence under Sections 498A, 304B read with Section 34 IPC and also under Sections 3,4 and 6 of Dowry Prohibition Act.
2. We have heard the learned Senior counsel for the appellant and also the learned Additional SPP for State. We have carefully perused the entire material on record including the judgment of the trial Court.
3. Before adverting to the crux of this particular case as elaborated by the learned counsel for the appellant, we deem it necessary to have a brief factual matrix of this case.
4. There is no much dispute with regard to the relationship between the parties in this case. The deceased Smt. Rajamani who is the daughter of PWs- 1 and 2 was given in marriage to the accused No.1- (Appellant), Nanjundaswamy, resident of Madapura village in H.D.Kote Taluk. Their marriage took place in the year 2010 and thereafter, the husband and wife 4 started living together in the residence accused No.1- Nanjundaswamy. It is the allegation that at the time of marriage, there was marriage talks and the accused have demanded a sum of Rs.50,000/- as dowry as well as 40 grams of gold and after giving those articles, the marriage was taken place. After marriage, it is alleged that for some time the accused persons have taken care of the said lady with all love and affection. Late the accused had obtained certain loans. Therefore, he in fact, had been demanding the deceased even to give her mangalya chain and other gold articles. In this context, it is alleged that, accused No.1 was not happy with his wife and all the inmates of the house started ill-treating and harassing in demanding money and also gold articles for pledging for discharge the loans etc. The accused No.1 and deceased were blessed with one child, but it also did not survive and died later.
5. It is further alleged that on 2.1.2012 all the members of the family were having dinner in their 5 house, but accused persons did not give food to the deceased. Likewise, on 3.1.2012 also they did the same thing. Again, on 4.1.2012 when the deceased was cleaning horse gram for the purpose of cooking, at that time, father-in-law has abused her and forced her to go out from the house. After accused No.1, husband came to the house, she informed the same and thereafter, husband also started abusing her and assaulting her. At about 9.00 p.m. when she was about to feed food to the husband, at that time, she demanded for releasing of gold hangings which were pledged by her husband. Being enraged by the same, accused No.1 dragged her to bedroom, poured kerosene and lit fire to her. She sustained severe burn injuries and she was admitted to the hospital. For about 10 days, she survived in the hospital and she died on 14.1.2012. She died in the hospital succumbing to the burn injuries. 6
6. After the death of the deceased, the case was converted for the offence under Section 302 of IPC along with other offences under Section 498A, 304B IPC and Sections 3,4 and 6 of Dowry Prohibition Act.
7. All the accused persons i.e. A1 to A4 were arraigned before the trial court making such allegations that all the accused persons have ill-treated and harassed the deceased and accused No.1 poured kerosene and lit fire and at that time the other accused persons were also present. Common charges were leveled against all the accused. The trial Court has framed charges leveling offences against them under Sections 304B, 302 and 498A of IPC read with Section 34 IPC and also under Sections 3,4 and 6 of Dowry Prohibition Act, and they were tried by the trial Court, for the above said offences.
8. The prosecution, in order to bring home the guilt of the accused examined as many as 41 witnesses 7 as PW1 to PW-41, got marked documents as to Ex.P71 and material objects as MO 1 to 6.
9. Almost all the witnesses have turned hostile to the prosecution case including the father and mother of the deceased.
10. The prosecution mainly relied upon two dying declarations of the deceased. One said to have been recorded at initial stage which was treated as first information given by the deceased to the police as per Ex.P54 recorded by PW38 at the direction/dictation of PW40 in the presence of Doctor PW29. Second dying declaration was recorded by the Taluk Executive Magistrate as per Ex.P55 by PW30 in presence of PW29. There is no other materials exactly available even for the offence under Sections 498A, 304B read with Section 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act. Therefore, accused were acquitted for the aforesaid charges by the trial Court itself. 8
11. Before adverting to the above adverted two dying declarations, it is just and necessary to have a cursory look at the evidence of witnesses examined before the trial Court.
12. PW1- Veerappa is the father and PW2- Jayamma is the mother of the deceased Rajamani.
13. PW3- Manja is the panch witness for recovery of pledged jewels Ex.P5. The said witness turned hostile to the prosecution case. He is also witness to Ex.P4 and Ex.P5, mahazars under which Ex.P8 to P21 and Ex.P6 and Ex.P7 receipts were recovered. For that also witness turned hostile. Father and mother, PW1 and PW2 have not supported the case of the prosecution.
14. PW4-B.Mahadevappa and PW5-Shivarudrappa are the inquest mahazar witnesses. In fact, Ex.P3 is the Inquest Report. They have also not supported the prosecution case. PW6- Shivananjaiah is the panch 9 witness to Ex.P4 and Ex.P5. He also turned volte-face to the prosecution case. PW7- Susheela is the elder sister of the deceased. PW8- C.T Prasanna is the husband of PW7 who were also kith and kin and relatives of the deceased. They did not support the case of the prosecution to any extent.
15. PW9- Ravigowda is one more panch witness to Ex.P4 and Ex.P5. He also not supported the prosecution case. PW10- Hanumantharaju is the panch witness to recovery of photographs. PW11- Somappa @ Somanna was examined to speak regarding as to how deceased was looked after, after the marriage. He also not supported the case.
16. In the similar fashion, PW12 - Basavarajappa, PW13-Basamma, PW14 - Veerabandraswamy, PW15-
Manju, PW16 - M.R.Kumaraswamy, PW17- Mallikarjunappa, PW18- Shankarappa @ Mahadevappa, PW19-Nagendra, PW20-Prakasha, PW21- 10 Bhogananjappa, PW22-S.Mahesh, PW23- Girish, PW24- Shivamallappa, PW25-Appaiah were all the witnesses who were examined by the prosecution for the purpose of establishing with reference to the marriage talks and as to how the accused were looking after the deceased in the house of the accused. But all these witnesses though some of the witnesses are the close relatives have not supported the case of the prosecution to any extent even for the offence under Sections 498A OF IPC and 3,4 and 6 of the Dowry Prohibition Act.
17. PW26- T.Prakash is the owner of Heera Jewellers. He has stated that accused No.1 and deceased both have come to pledge the gold hangings for a sum of Rs.1,000/-. He only supported the case of the prosecution to some extent. PW27-Maalaram, is the Pawn Broker in Madapura Village. He has stated that accused No.1 has sold one gold ring for Rs.2,500/-. 11
18. PW28- Dr.Ravi has conducted the postmortem examination on the dead body and he has stated that, deceased died due to Septicemia as a result of burn injuries and issued Postmortem Examination Report as per Ex.P53. Here itself, we would like to state accused did not deny the death of the deceased by burn injuries. In fact, the prosecution in fact has proved the death of the deceased due to burn injuries and there is no need for this court in detail to go into the postmortem report in view of non denial by the accused persons.
19. PW29-Dr. Mohan, is the person who gave the opinion with regard to the health condition of the deceased at the time of police recording the information given by the deceased as per Ex.P54.
20. PW30- Dr. B.S.Manjunathaswamy is the Taluk Executive Magistrate who has recorded the statement of the deceased as per Ex.P55. He has also 12 conducted the inquest proceedings on the dead body as per Ex.P3. We would like to say insofar as inquest is concerned, though certain portion has not done properly, accused have not denied the deceased died due to burn injuries. Only corollary is the conducting of the inquest by police and the Tahasildar is of procedural aspect that has not been properly done by PW30 at the instance of the jurisdictional police.
21. PW31- H.P.Raviprasad is the Assistant Tahasildar who actually wrote Ex.P55 at the direction of PW30 Dr.B.S.Mnjunathaswamy.
22. PW32-T.K.Mahadev, is the Head Constable who received MLC Admission memo from K.R.Hospital as per Ex.P61 and informed the concerned police station. PW33-K.P.Nandeesha, another Police Constable who carried the FIR and delivered the same to the Magistrate on 5.1.2012 at 9.00 p.m. PW34- Shrikantaswamy is another Police Constable who has apprehended the accused on 5.1.2012 in Herige village 13 bus stop. This is also not disputed by other side with regard to the arrest of the accused.
23. PW35- Dr.Maridevegowda is another important witness relied by the defence counsel that on 4.1.2012 at 11.00 p.m. deceased was first admitted to the hospital with a history of accidental burns. PW36- Dr. Chandrashekar has issued MLC register extract as per Ex.P64 and also speaks about the case sheet of injured Rajamani which also disclose history was given by the patient herself.
24. PW37- M.Nanjegowda, Head Constable was deputed to trace and apprehend the accused Nos. 2 to
4.
25. PW38- Srinivasa is the Police Constable. He deposed that, he went along with HC 77 i.e. PW40 for the purpose of recording the statement of the deceased as per Ex.P54.
14
26. PW39-M.B. Thippegowda is the PSI of H.D. Kote Police Station, who received the information as per Ex.P54 and on the basis of that he registered a case in Crime No.6/2012 for the offences punishable under Sections 498A, 307 read with Section 34 of IPC and under Sections 3 and 4 of Dowry Prohibition Act at the initial stage.
27. PW40- M. Nanjappa is the Head Constable No.77, who went to the hospital on 5.1.2012 and recorded the statement of the deceased as per Ex.P54. PW41- H. Govindaraju is the Circle Inspector who has completed the investigation and filed the chargesheet.
28. On careful perusal of the entire evidence on record, the whole of the witnesses who are inquest witnesses and also kith and kin of the deceased, neighbours of the deceased and as well as particularly, parents of deceased have totally turned hostile to the case of the prosecution. The entire case revolves 15 around the dying declarations recorded by PW40 and PW30. We have carefully perused the evidence of these witnesses. Of course, PW29 Doctor has deposed before the court that on 14.1.2012 at about 11.49 p.m. injured Rajamani was brought to the hospital with accidental burns. He is the Doctor who has through out taken care of the injured in the hospital. PW35 is the Doctor who is an important witness working at K.R. Hospital at Mysore. It is the evidence of this witness that on 4.1.2012 at about 11.00 p.m. while he was on duty, injured Rajamani was brought by her husband with history of accidental fire.
29. We would like to peruse this particular document relied upon meticulously. Ex.P64 is the document which is the case sheet pertaining to the deceased. This clearly discloses that the said patient was admitted by accused No.1 in the first instance with a history of accidental burns at 10.00 p.m. on 4.1.2012. This document contains many numbers of case sheets 16 and particularly, the follow up sheets dated 4.1.2012 which discloses that the information was given by the patient herself that she sustained burns accidentally, while liting kerosene stove on 4.1.2012 at about 8.30 p.m. in her house in Madapura village, H.D. Kote Taluk. The said document also shows that informant was conscious and she was oriented.
30. Now we turn to discuss the Ex P54 which is styled as First dying declaration PW40 is the Head constable deposed before the court that, he received an information with regard to the admission of the deceased to the hospital on 5.1.2012 and he went to the hospital and taken the opinion of the Doctor PW29 and recorded the statement/declaration of the deceased. Ex.P56 is the request letter given by the PSI through this witness to the Doctor. He has categorically deposed that, the deceased has given her statement making allegations against the accused as stated in Ex.P54. He recorded the said statement particularly, with reference 17 to the allegations of pouring kerosene and liting fire. The specific allegation is made against the husband that he poured kerosene on her and lit fire and therefore, she sustained injuries. There are allegations against the father-in-law and mother-in-law and others so far as ill- treatment and harassment to her by all of them. But all those things have not been accepted believed by the trial court and same has been considered and the trial Court has acquitted the accused persons so far as ill- treatment and harassment are concerned for the offence under Section 498A of IPC and Sections 3,4 and 6 of Dowry Prohibition Act. Therefore, we are only constrained to consider whether prosecution has proved that the offence has been committed by the accused No.1 under Section 302 of IPC by burning his wife.
31. Of course, in the course of cross examination, so many things have been questioned with regard to the health condition of the deceased and also taking the opinion of the Doctor etc.. But we do not find 18 any such strong reasons to draw any inference that any procedural lapses on the part of PW40, PW29 in recording the dying declaration of the deceased. Therefore, considering the evidence of PW38, PW40 and PW29, we are of the opinion that Ex.P54 has been established before the court and same has been recorded in accordance with law and same has been recorded when the patient was conscious and fit to give the statement before PW40.
32. Likewise, PW30, Taluk Executive Magistrate and PW29, Doctor who have already referred to are the persons who are present at the time of recording another dying declaration Ex.P55. PW-29 did not give any separate certificate. He stated that, he has already given certificate as per Ex.P55A because the declarations were recorded simultaneously from 2-30 p.m. onwards upto 4.30 p.m. one after another by the police as well as Taluk Executive Magistrate. We do not find any strong reasons that one more certificate ought 19 to have been obtained by PW30 for the purpose of recording dying declaration.
32. Even Ex.P55 on careful perusal of the same it is nothing but reiteration of the contents as stated in Ex.P54. However, in Ex.P54, it is specifically alleged by the deceased that, even after pouring kerosene by accused No.1 and litting fire, they tried to extinguish the fire by pouring water on the deceased and thereafter they themselves have shifted the deceased to the hospital.
33. Even on careful perusal of the evidence of PW-29 and PW-30, we do not find any strong reasons to discard the same because the procedural aspects are followed though there are some discrepancy in the evidence of those witnesses with regard to the timings, with regard to the recording of dying declaration etc. But we are of the opinion that those things are minor discrepancies which will not come in the way of 20 accepting the recording of dying declaration. Therefore, we are of the opinion that the prosecution has established actual recording of the dying declarations Ex.P54 and Ex.P55.
34. Now the question arises is, whether the contents of dying declarations can be taken as gospel truth as stated by the deceased. We have to look into all the surrounding circumstances prevailing in the case for the purpose of ascertaining as to whether deceased had given the true statements or contents of the statements can be relied upon by the Court as gospel truth spoken out by the deceased.
35. It is worth to mention here that dying declaration is also a valuable piece of evidence which court can rely upon and on the basis of sole circumstance of dying declaration court can record the conviction against the accused. If the procedure in recording dying declaration and truth fullness of the 21 same has been proved beyond reasonable doubt. But the dying declarations has to be tested by other prevailing circumstances in again case with reference to other evidence available on record.
36. It is well known principles that dead man cannot come back to the court and depose subjecting himself or herself for cross-examination. When a statement is made by a dead person or the evidence which is already on record which is not subjected to any cross examination and accused had no opportunity to cross examine such witness, in such an eventuality, the Court should take utmost care in appreciating the contents of dying declaration. The surrounding circumstances also to be borne in mind by the Court before accepting such dying declaration in order to draw an inference against the accused and to convict the accused. Bearing in mind the aforesaid principles, now we proceed to consider other circumstances in the case. 22
37. As we have already narrated that the mother and father of the deceased and other close relatives, brothers and sisters have turned hostile to the prosecution case. We have carefully perused the document that is Ex.P64 and the evidence of PW35. It is the case of the prosecution itself as per the evidence of PW35 and EX P64, that the deceased was taken to the hospital at H.D. Kote at the first instance and she was referred to K.R. Hospital, Mysore later. But very peculiarly, the prosecution has not placed any materials before the court as to who was the Doctor at the first instance examined the injured at H.D. Kote Hospital and what was the information given to the hospital at that particular point of time and whether at that time deceased was oriented and conscious and whether she has given any statement before the Doctor who examined her at that point of time.
38. Be that as it may. Subsequently, she was taken to K.R. Hospital. The document which we have 23 already referred to at Ex.P64 is spoken to by PW35. PW35 in his categorical terms has stated supporting Ex.P64. He has deposed that, on that particular day, he was in charge of the hospital and deceased was brought to the hospital by her husband with a history of accidental burns and accused No.1 has given the information about the accidental burn and thereafter, he examined her and found that she has suffered 70 to 80% of burn injuries and he has also produced Ex.P64 and Ex.P65 i.e. MLC Register. It is admitted in the course of cross examination that patient was oriented and she was conscious. It is suggested that she herself has given information with regard to the history of burns. Though it is denied by the Doctor, but Ex.P64 if it is read meticulously throughout considering the entire case sheets as we have referred to above which clearly disclose the patient was well oriented and conscious and she actually gave the information that she has sustained accidental burns when she was 24 about to do the cooking work while igniting the stove. Because of the burst of the stove she sustained the burn injuries. Thereafter, it appears, after she was shifted to the hospital all the relatives rushed to the hospital including PW1, PW2 and other brother and sisters of the deceased.
39. PW1 father of the deceased in his evidence though he turned hostile to the prosecution, he not only denied the case of the prosecution but also supported the case of the accused and as well as the contents of Ex.P64 and the evidence of PW35. He has categorically stated in his evidence, that immediately as soon he received the information of the deceased being admitted to the K.R.Hospital at Mysore, he went to the hospital and enquired his daughter as to what happened and then she disclosed sustaining of burn injuries due to accidents file and thereafter her husband and others admitting her to the hospital. 25
40. Though PW2 mother has not spoken about this, but she did not made any allegations, that deceased suffered any cruelty at the hands of the accused. She deposed that, she enquired with her daughter, but she did not say anything so far as other aspects are concerned i.e. with reference to the allegations under Section 498A IPC and Sections 3,4 and 6 of the Dowry Prohibition Act. These two witnesses who are prime witnesses to the prosecution, they did not support the case of the prosecution and totally turned volte-face and promptly they stated that accused and deceased were happily living each other and there was no ill treatment or harassment by the accused persons in any manner so far as deceased is concerned.
41. Therefore, it appears, after entry into hospital by the kith and kin, relatives, perhaps after due deliberation with them as the deceased was very much conscious and oriented, it goes without saying that 26 they all discussed together and they might have deliberated and initially might have prompted as to what statement that the deceased has to give before the police as well as before the Taluk Executive Magistrate without anticipating the consequences. Therefore, perhaps on the persuasion of the kith and kin who were present in the hospital, the statement of the deceased must have been recorded by the Taluk Executive Magistrate and the Police. Though, it is stated in so many terms by the deceased in Ex.P54 and P55 making allegations against accused No.1 that he poured kerosene and lit fire, but the truthfulness of the statement differ from close kith and kin including own father and mother.
42. Therefore, looking to the above set of circumstances though the dying declaration procedures were followed by the Doctors and Taluk Executive Magistrate and also Police that cannot be safely accepted and also dying declaration even if it is 27 accepted the contents in our opinion considering the other circumstances of the case cannot be accepted and relied upon as truthful story depicted by the prosecution.
43. Looking to the above set of circumstances, once again, we have to say that contents of dying declaration if it is tested with other circumstances, there are two parallel views which are available before this Court, that is one set of material available on record that is the evidence of kith and kin including father and mother, Doctor PW35 is evidence and document which is marked at Ex.P64 and other evidence of other witnesses which clearly indicate that it may be accidental fire also due to which deceased might had sustained burn injuries.
44. The other set of circumstance that is the evidence of PW- 38, PW40, PW29 and PW30 which also disclose that the death might have been occurred due to 28 pouring of the kerosene by the accused by litting fire. Therefore, when two views are placed before the court by the prosecution and both views are on the basis of the material record available are possible and plausible views in such circumstance, it goes without saying that the view which is in favour of the accused has to be preferred by the court for the purpose of drawing any inference in favour of the accused. Normally when two views are available, the Court should always give the benefit of doubt of the circumstance in the case and prefer to acquit the accused rather than convicting him. Under the above said circumstances, though the trial court has taken pains to consider all the material on record and also writing a lengthy judgment, but in our view, though the trial court had two views are available, but it preferred to convict the accused considering the dying declarations recorded by the police and Taluk Executive Magistrate which is against to the recognized principles of Criminal Jurisprudence. 29 Therefore, we prefer to accept the alternative view available which is in favour of the accused.
44. With these observations, we proceed to pass the following:
ORDER The appeal is allowed. The judgment of conviction and sentence passed by the trial Court i.e., V Addl. Sessions Judge, Mysuru in SC No.254/2012 dated 10.6.2014 is hereby set aside. Consequently, the appellant is hereby acquitted of the charge levelled against him for the offence punishable under Section 302 of IPC. The accused shall be set at liberty forthwith if he is not required in any other case.
If the appellant has deposited any fine amount, the same is ordered to be refunded to him on proper acknowledgement and identification. 30
Registry is hereby directed to send intimation to the concerned Jail Authorities for release of accused/appellant forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE tsn*