Karnataka High Court
State Of Karnataka vs Appayya Lakkappa Sanadi on 19 April, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRL.A.NO.100158/2017
C/W CRL.A.NO.100159/2017
IN CRL.A.NO.100158/2017
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
YAMAKANAMARADI POLICE STATION BELAGAVI
THROUGH THE ADDL.STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA
DHARWAD BENCH
.. APPELLANT
(BY SRI.V.M.BANAKAR, ADV.)
AND:
1. APPAYYA LAKKAPPA SANADI
AGE 32 YEARS, OCC AGR.
R/O. BAGARNAL, TQ KUKKERI, BELGAUM
2. LAKKAPPA APPANNA SANADI
AGE:60 YEARS, OCC:AGR.
R/O. BAGARNAL TQ:KUKKERI, BELGAUM
.. RESPONDENTS
(BY SRI.GIRISH A.YADWAD, AMICUS CURIAE FOR R1,
APPEAL AGAINST R2 IS ABATED V/O/D 29.05.2018)
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THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AND TO SET ASIDE
THE JUDGMENT AND ORDER OF ACQUTTAL DATED 20.09.2016
PASSED BY THE LEARNED VI ADDL.DISTRICT AND SESSIONS
JUDGE, BELAGAVI IN S.C.NO.141/2014 AND CONVICT THE
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
498A, 304B, 302 R/W SECTION 34 OF IPC AND UNDER SECTIONS 3
AND 4 OF DOWRY PROHIBITION ACT.
IN CRL.A.NO.100159/2017
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
YAMAKANAMARADI POLICE STATION BELAGAVI
THROUGH THE ADDL.STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA DHARWAD BENCH
.. APPELLANT
(BY SRI.V.M.BANAKAR, ADV.)
AND:
1. LAKKAWWA W/O LAKKAPPA SANADI
AGE 50 YEARS,
R/O. BAGARNAL, TQ KUKKERI, BELGAUM
2 . SANNAPPAYYA LAKKAPPA SANADI
AGE:25 YEARS, OCC:AGR.
R/O. BAGARNAL TQ:KUKKERI, BELGAUM
.. RESPONDENTS
(BY SRI.GIRISH A.YADWAD, AMICUS CURIAE FOR R1 & R2)
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AND TO SET ASIDE
THE JUDGMENT AND ORDER OF ACQUTTAL DATED 20.09.2016
PASSED BY THE LEARNED VI ADDL.DISTRICT AND SESSIONS
JUDGE, BELAGAVI IN S.C.NO.250/2015 AND CONVICT THE
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
498A, 304B, 302 R/W SECTION 34 OF IPC AND UNDER SECTIONS 3
AND 4 OF DOWRY PROHIBITION ACT.
THESE APPEALS HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 06.04.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, RAJENDRA BADAMIKAR, J.
DELIVERED THE FOLLOWING:
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JUDGMENT
These appeals are filed by the State through Yamanakaradi police station challenging the common judgment of acquittal dated 20.09.2016 passed in S.C.No.141/2014 and S.C.No.250/2015 on the file of the VI Additional District and Sessions Judge, Belagavi.
2. For the sake of convenience, parties shall be referred with the original ranks occupied by them before the trial court.
3. The brief factual matrix leading to the case are as under:
As per the case of the prosecution, about five years prior to the death, the marriage of the deceased Deepa who is the daughter of C.W.4 and sister of C.Ws.5, 10 and 11 was performed with accused No.1 who is the son of accused Nos.2 and 4 and brother of accused No.3. During the marriage, as per the demand sufficient dowry was paid in cash and kind. After the marriage, the deceased Deepa started to live in the house of the 4 accused and later on accused started to harass the deceased, insisted her to bring gold and money from her parental house and they used to assault her. It is alleged that 2-3 days prior to the date of incident, the accused without any reason in respect of domestic work quarreled with the deceased and harassed her. It is further alleged that on 03.02.2014 at 10.30 a.m. when all the accused were there and when the deceased Deepa being fed up with the harassment extended to her by the accused started to go to her parental house. It is alleged that, at that time, accused No.1 holding her hand dragged her inside the house and all the accused poured kerosene on her, while accused No.4 lit the stick and set her fire. It is further case of the prosecution that, when the deceased started to scream, accused No.1 splashed water on her and thereafter accused Nos.1 and 4 on a scooter shifted her to Government Hospital, Paschapur and from there, she was shifted in the Tata Sumo to District Hospital, Belagavi. Later on the same day, she was shifted to KLE Hospital, Belagavi. When the victim was shifted to 5 Government Hospital, Belagavi, a requisition was sent to the concerned police and then the police came there and recorded the statement of the victim in the hospital. Meanwhile, the Taluk Executive Magistrate on the request of the police has recorded the dying declaration of the victim, who alleged that accused are the cause for her burn injuries. Then a crime was registered and investigation was undertaken by the investigating officer. Initially, the offence under Section 307 of IPC was incorporated and during the course of treatment, the victim did not respond to the treatment and succumbed because of the burn injuries in the KLE Hospital, Belagavi on 11.02.2014. As such, the offence under Section 302 of IPC came to be incorporated. The investigating officer has got done the inquest mahazar and also got done the postmortem and after recording the statement of the witnesses filed the charge sheet against the accused for the offences punishable under Sections 498A, 304B, 302 r/w Section 34 of IPC and under Sections 3 and 4 of Dowry Prohibition Act, 1961 (hereinafter referred to as 6 'D.P.Act' for short). Initially, the case was registered against all the accused and accused Nos.1 and 4 were arrested on 06.02.2014 and they were in custody till the conclusion of the trial. However, accused Nos.2 and 3 were arrested on 28.08.2014 and they were in custody till 04.03.2015 and 27.03.2015 respectively.
4. After committal, case against accused Nos.1 and 4 was registered in S.C.No.141/2014 and as accused Nos.2 and 3 were absconding, the case against them was spilt up in S.C.No.250/2015 and later on after securing their presence, their case was proceeded with. Since both the cases are arising out of the same crime and S.C.No.250/2015 spilt up case of S.C.No.141/2014, the common evidence came to be recorded by holding common trial. The accused were represented by their counsel.
5. After hearing the learned public prosecutor and the defence counsel, the charge under Sections 498A, 304B and 302 r/w Section 34 of IPC and under 7 Sections 3 and 4 of D.P.Act came to be framed and accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, the prosecution has examined in all 26 witnesses as P.Ws.1 to 26 and has also placed reliance on 64 documents as Exs.P1 to P64. Ex.D1 was also marked during the cross- examination of the witnesses and M.Os.1 to 6 were also got marked.
7. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of accused is of total denial and they did not choose to lead any oral or documentary evidence in support of their defence.
8. Having heard the arguments and after perusing the oral as well as documentary evidence, learned Sessions Judge has found that the prosecution has failed to bring home the guilt of the accused beyond 8 all reasonable doubt and as such, he has acquitted the accused for the offences punishable under Sections 498A, 304B and 302 r/w Section 34 of IPC and under Sections 3 and 4 of D.P.Act. Being aggrieved by this judgment of acquittal, these two appeals were filed.
9. During the pendency of these appeals, respondent No.2 in Crl.A.No.100158/2017 died and as such, case against him stands abated.
10. Learned Additional SPP would contend that the judgment of acquittal is contrary to law and facts of the case. He would also contend that P.W.12 is the Head Constable who has recorded the statement of the victim as per EX.P23 which is the complaint and P.W.13- Dr.Mahananda Bellad who has treated the injured and in whose presence the statement came to be recorded. He would also contend that Ex.P33 is the dying declaration given by the victim before the Taluk Executive Magistrate who is examined as P.W.15 and the evidence is again supported by P.Ws.23 and 24 who have certified that 9 victim was in a fit state of mind. Hence, he would contend that though other material witnesses have turned hostile, there is no reason for discarding dying declaration given by the victim. Hence, he would contend that the trial court has erroneously acquitted the accused and as such, he would pray for allowing the appeals by setting aside the impugned judgment of acquittal passed by the trial court and prayed for convicting the accused.
11. Per contra, learned amicus curiae for the respondents/accused would support the impugned judgment of acquittal passed by the trial court. He would contend that all the material witnesses including the mother and brothers of the victim have turned hostile and except dying declaration there is nothing on record. He would also contend that there are three dying declarations which are inconsistent with each other and last dying declaration is against the prosecution and the second and third dying declarations were recorded by the Taluk Executive Magistrate and the thumb mark of the 10 victim is not at all identified and there is evidence to show that fingers of the victim were burnt and as such, question of obtaining thumb mark on the dying declaration does not arise at all. He would further contend that there is no material evidence regarding harassment or demand for dowry and in the absence of any material evidence and inconsistent dying declarations, the trial court is justified in acquitting the accused. Hence, he would seek for dismissal of the appeals by confirming the judgment of acquittal.
12. We have heard the arguments advanced by the learned Additional SPP for the appellant and learned amicus curiae for the respondents. We have also meticulously examined the records of the trial court. Now the following point would arise for our consideration.
"Whether the judgment of acquittal passed by the trial court is erroneous, perverse and suffers from any infirmity so as to call for any interference by this court?"11
13. It is an undisputed fact that accused No.1 is the husband of the deceased Deepa, while accused Nos.2 and 4 are in-laws and accused No.3 is the brother-in-law. It is also an undisputed fact that the marriage of the deceased Deepa was solemnized five years prior to her death. The allegations of the prosecution are regarding deceased being subjected to ill-treatment by accused in order to meet their illegal demand and when she was returning to her parental house, they poured kerosene and lit her fire which has resulted in burn injuries. However, at the same time, it is also evident that accused Nos.1 and 4 have admitted the deceased in Paschapur Primary Health Centre at the first instance on a scooter and accused No.1 splashed water immediately on the deceased, when she caught fire. Further, they have later on shifted her to the District Hospital, Belagavi. If at all, the accused had any intention to cause her death, the question will arise as to whether they could have shifted her to the hospital immediately and the prosecution did not answer this aspect. 12
14. In the instant case, all the material witnesses have turned hostile. P.Ws.4 to 9 and 16 to 18 are blood relatives of the deceased including her mother and brothers, while P.Ws.10 and 11 are panchas who have negotiated the marriage settlement. All these witnesses have turned hostile. Though these witnesses were cross- examined at length by the learned public prosecutor, nothing was elicited so as to impeach their evidence. P.Ws.1 to 3 are the spot panchas and inquest panchas, but they have also turned hostile. However, their hostility has no much relevancy, as admittedly, the deceased succumbed because of the burn injuries.
15. P.W.12 is the material witness who was working as Head Constable in Yamakanamaradi police station. According to him, he received message from APMC police station regarding victim being admitted in the District Hospital with burn injuries. He further deposed that immediately he went to the District Hospital and he got information that victim was shifted to KLE 13 Hospital, Belagavi and then he went to KLE Hospital, Belagavi and found that except portion of her face, entire body was burnt. He obtained opinion from the doctor whether the victim was in a fit condition to give statement and then he submitted a requisition to the Taluk Executive Magistrate, Belagavi. Thereafter, he recorded the statement of the victim in the presence of P.W.13-Dr.Mahananda Bellad. He further claimed that he returned to the police station and registered it and FIR came to be issued. The statement of the victim which is alleged to have been recorded is marked at Ex.P23.
16. It is to be noted here that there is no certification by the doctor in Ex.P23 to the effect that victim was in a sound state of mind to give such statement. This material certification is absent. Even the LTM is not attested by any person. On the contrary, P.W.13 has deposed regarding she certifying the condition, but no such certification is found on Ex.P23. In her cross-examination, she admitted that Dr.B.Y.Patil has 14 sent the MLC intimation and she also admitted that on 03.03.2014, she was on night duty. She has also admitted that she was not the Chief Medical Officer in KLE Hospital. She has also claimed that up to 8.00 p.m. Dr.V.Y.Patil and Dr.Sundaraj were on duty, but the statement was recorded at 7.45 p.m. and in that event, she had no occasion to certify the statement. But she has also admitted that she had no difficulty in endorsing on the complaint that the deceased was in a fit condition to give statement. Apart from that, she admitted that due to burn injuries there are chances of the patient becoming unconscious. She further admitted that, there are chances of variation of blood pressure and sugar level due to burn injuries and due to such variation in blood pressure, there will be variation in pulse rate and brain will not function properly. It is admitted that the deceased had sustained more than 80% burn injuries. She also admitted that she did not certify that the pulse rate, blood pressure and sugar level were normal. She further admitted that because of 80-85% burn injuries, 15 condition of the patient would be critical for 24 hours. Her evidence discloses that on 05.02.2014, the condition of the patient Deepa was improved. She has also admitted that I.V. fluid, antibiotics, pain killers will be administered to the patients who suffer from burn injuries and since she was not present when deceased was admitted, she cannot say which medicines were given to her before her examination. This evidence discloses that this witness does not know anything and in a mechanical way she endorsed the complaint Ex.P23 certifying that it was recorded in her presence. Admittedly, when the victim was suffering from burn injuries, she ought to have been administered sedatives and cross-examination of P.W.13 reveals that blood pressure and sugar level varies and it leads to unconsciousness, but she did not bother to record any of these aspects in Ex.P23. Further, her duty commences at 8.00 p.m. and till 8.00 p.m. she admits that Dr.V.Y.Patil and Dr.Sundaraj were incharge, but their certification 16 was not obtained as statement is said to have been recorded between 7.45 p.m. to 8.30 p.m.
17. Very interestingly, this complaint Ex.P23 is required to be treated as dying declaration. It is important to note here that prior to recording of this dying declaration Ex.P23, on the basis of the requisition submitted by P.W.12 himself, the Taluk Executive Magistrate between 7.00 to 7.30 p.m. recorded the dying declaration of the victim under Ex.P33. There is no explanation from P.W.12 as to why there is delay in recording the statement by this witness when the doctor has certified that patient was fit and that too when the doctors who have treated the patient were present.
18. The prosecution is relying on other dying declaration at Ex.P33 recorded by P.W.15-Taluk Executive Magistrate. P.W.15 in his examination-in-chief deposed that he received requisition at 6.15 p.m. he went to KLE Hospital and after certification from the concerned doctor he recorded the dying declaration of 17 the victim between 7.00 to 7.30 p.m. on 03.02.2014. He further deposed that P.W.23 has certified that victim was in a sound state of mind and the said dying declaration is marked at Ex.P33 wherein the victim stated that accused poured kerosene and lit her fire and she was harassed for dowry. It is also interesting to note here that, on perusal of the Ex.P33, the thumb mark of the victim was not attested by anybody including P.W.15-Taluk Executive Magistrate. No doubt, P.W.23 has certified that victim was fit to give evidence and to this extent, P.W.23 has also deposed. In the cross-examination, P.W.23 claimed that he was the Chief Medical Officer and the victim was suffering from 80-85 % burn injuries. He claimed that dying declaration was recorded in his presence and the victim was in a fit state of mind. But at the same time, the evidence of P.W.14 assumes importance, who is a Medical Officer, who has conducted autopsy on the dead body on 12.02.2014. He deposed that there were burn injuries found over the face, neck, chest, abdomen, whole of the back, front and back of both upper limbs 18 upto wrist, front of left thigh, front and back of right thigh and postero-medial aspect of the right leg and the death was due to septicemia as a result of burn injuries. He has also deposed regarding he signing postmortem report which is marked at Ex.P32. He has also drawn the sketch in Ex.P32 on last page to show as to the burn injuries found on body. This sketch and the evidence of P.W.14 clearly disclose that burn injuries were covering upto half of the face including the mouth. If this version is taken into consideration, his cross-examination assumes more importance. In the cross-examination he admits that, if there is 90% burn injuries, there will be huge flame and in such event, the patient personally tries to extinguish the fire and in the process, the victim may roll on the floor or try to extinguish the fire by hands and there is possibility of burning of the fingers of the hands. He has also admitted that the fingers of her hands were burnt, but in Ex.P32, the same was not shown. But in his cross-examination, he admits that fingers were burnt. His further cross-examination is very much relevant wherein 19 he has admitted material aspects. His cross-examination in this regard reads as under:
"It is true to suggest that all the fingers of her hand were burnt.
After one day of burning, the skin will be peeled. Immediately after the burn injuries bubbles blisters will formed.
The said blisters contain watery like fluid. Within 24 hours of burn injuries one can move his limbs. But he cannot walk.
Due to 90% burn injuries all internal organs of human body will affect and the nerves will be stiffen and in that event the entire energy will be lost.
If the face is burnt the activities of the tongue will be affected and the lips will be contracted. Hence there may be chances of blisters over the lips and tongue. There was no hindrance for Medical expenses to mention what were all the conditions of lips and tongues in this case. Because of all these aspects the patient may lose consciousness. In that 20 event there is loss of sugar contents of the body, which leads to weakness. Because of all these aspects the patient will be energy less. In that event the patient cannot move his limbs like ordinary person.
The formation of septicemia (blood becoming poison) starts immediately causing of burn injuries. In that event due to circulation of the said blood to the brain, the brain will not function properly. In that event there will be forgetfulness, hallucinations."
19. This cross-examination reveals that, if the face is burnt, the activities of the tongue will be affected and the lips will be contracted and there were no chances of blisters over the lips and tongue. As such, in view of these facts, the patient likely to loss consciousness and loss of sugar contents of the body leads to weakness and energy less. He has also admitted that in such event, because of circulation of the poisoned blood to the brain, the brain will not function properly. In that event, there will be forgetfulness and hallucinations. 21
20. Admittedly, the victim has suffered burn injuries upto lips. In that event, her lips and tongue is likely to be affected. Further, P.W.14 has also admitted that her fingers were burnt. In that event, the question of endorsing thumb mark on the dying declaration Ex.P33 appears to be very remote. Further, if this version is accepted, then nothing prevented P.W.23 to record the blood pressure and sugar level and other aspects to ascertain the exact condition of the victim. But nothing was recorded and in one single sentence it is simply asserted that victim was fit to give statement. Hence, when the fingers were burnt and when the entire body was burnt including the face, how the victim was able to speak is not explained by any of these witnesses. Further, admittedly when the victim was in great pain because of the burn injuries, the sedative doses will be administered and the victim will be in semi-conscious state of mind and none of these aspects were considered by the Medical Officer and in a mechanical way everything is done.
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21. On the contrary, the other dying declaration was taken on 08.02.2014 by the same Taluk Executive Magistrate P.W.15 wherein the victim has asserted that she herself poured kerosene and she exonerated accused Nos.1 to 4. However, P.W.23 admitted that while recording the statement on 08.02.2014 he was not present, but he has also certified the same. There is no certification in Ex.P35, the third dying declaration that the statement was recorded in the presence of the doctor and he certified to this effect is missing. On the contrary, P.W.23 admitted that he was not present when it is recorded. Even otherwise, the thumb mark of the witness was not attested on this document also. Very interestingly, both Exs.P33 and 35 were recorded by P.W.15, the same Taluk Executive Magistrate, but he did not bother to seek any explanation from the victim as to why the victim has changed her statement subsequently after five days. No attempt has been made by the Taluk Executive Magistrate to ascertain this aspect. 23
22. Apart from that, the death has occurred on 11.02.2014, postmortem report was conducted on 12.02.2014 and P.W.14 deposed that ink was found on the thumb. When regularly the ointment is being applied to the burn injuries and when the fingers were burnt, the doctor noticing the blue ink on the thumb appears to be very remote. Hence, it is evident that in the instant case, dying declarations Exs.P33 and P35 are inconsistent, contrary and they do not pass through the test ofcross- examination on genuineness of these statements.
23. Learned Additional SPP has placed reliance on the decision of the Hon'ble Apex Court in the case of Laxman vs. State of Maharashtra reported in AIR 2002 SC 2973 and invited the attention of this court to the observations made at paragraph 3 and argued that, when a person who records a dying declaration satisfied that deceased was in a fit state of mind is sufficient. But in the instant case, the Taluk Executive Magistrate himself was not satisfied regarding fitness of the victim 24 as he has recorded two inconsistent dying declarations and do not bother to verify which is proper and why there are two inconsistent dying declarations given by the victim. Hence, the principles enunciated in the above cited decision does not come to the aid of the prosecution in any way. Except these three dying declarations, there is nothing on record to bring home the guilt of the accused. All the material witnesses including the mother and brothers of the deceased have turned hostile and denied the case of the prosecution. Considering all these aspects, it is evident that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt.
24. Learned Sessions Judge has considered all these aspects in detail and he has analyzed the oral and documentary evidence meticulously and then arrived at a just decision. The judgment of acquittal passed by the trial court cannot be said to be perverse, erroneous or illegal so as to call for any interference by this court. 25 Hence, the appeals are devoid of any merit and needs to be dismissed. Accordingly, we answer the point under consideration in the negative and proceed to pass the following:
ORDER Criminal Appeal Nos.100158 and 100159 of 2017 are dismissed by confirming the common judgment of acquittal dated 20.09.2016 passed in S.C.No.141/2014 and S.C.No.250/2015 on the file of the VI Additional District and Sessions Judge, Belagavi.
The fees of Amicus Curiae is fixed at Rs.5,000/-.
Sd/-
JUDGE Sd/-
JUDGE MBS/-