Karnataka High Court
Chandrashekar S/O Maregowda vs State Of Karnataka on 26 June, 2012
Author: Dilip B Bhosale
Bench: Dilip B Bhosale
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF JUNE 2012
PRESENT
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
CRL.A. NO. 453 OF 2008
BETWEEN
CHANDRASHEKARSHEKAR
AGED ABOUT 27 YEARS
S/O. MAREGOWDA
RESIDENT OF
RENUKAMBANAGAR
BEERESHWARA NAGAR
BANGALORE. ..APPELLANT
(BY SRI. B. ANAND, ADV FOR
SRI.M. KRISHNADAR & K.S.A. REDDY)
AND
STATE OF KARNATAKA
BY SUBRAMANYAPURA POLICE
BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
AT BANGALORE. ..RESPONDENT
(BY SRI. P.M. NAWAZ, ADDL. SPP)
THIS CRL.A. FILED U/S. 374(2) CR.P.C. BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE JUDGEMENT DT:
17.06.2005 IN S.C.NO. 117/2003 ON THE FILE OF THE S.J, FTC-
VII, BANGALORE CONVICTING THE APPELLANTS/ACCUSED FOR
THE OFFENCE P/U/S. 302 R/W 34 OF IPC AND SENTENCING
THEM TO UNDERGO LIFE IMPRISONMENT AND EACH ACCUSED
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IS IMPOSED A FINE OF RS. 10,000/- I.D. TO UNDERGO
FURTHER IMPRISONMENT FOR A PERIOD OF SIX MONTHS.
THIS CRL.APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING
(ORAL JUDGMENT) - B.V. PINTO J.,
This appeal is filed by the accused in S.C.No.117/2003 challenging the Judgement dated
17.6.05 passed by the Sessions Judge, Fast Track Court - VII, Bangalore, convicting them for offences punishable under sections 302 read with section 34 IPC. and sentencing them to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default to suffer further imprisonment for a period of six months.
2. The appellant no.2 Smt. Mamatha filed an application before this Court during the pendency of the appeal seeking to withdraw the appeal and thereby accepting the conviction and sentence imposed on her by the trial Court. This Court by order dated 2.12.2008 has passed the following order:
After filing of the appeal, now the appellant No.2/accused No.2 has filed a memo to the Registry stating that she does not intend 3 to press for the appeal and she voluntarily wants to withdraw from the appeal and thereby accepting the conviction and sentence imposed by the trail Court in S.C.No. 117/2003.
We had directed the learned SPP to keep the accused present in Court and accordingly she is present in Court today. On enquiry repeatedly with her, she insists that she does not want to press the appeal so far as her case is concerned. We have made it clear to her the consequences of withdrawal of the appeal but, she does not want to proceed with the appeal and hence, the appeal so far as the second appellant - Smt. Mamatha W/o. Sri. Chandrashekar is concerned, stands withdrawn.
Learned Counsel for the appellant is
directed to amend the cause - title
accordingly.
Thus we are left with the appeal filed by accused no.1 Chandrashekarshekar only. Parties are referred according to their rank before the trial Court.
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3. It is the case of the prosecution that the deceased Bhagya had married the accused no.1, 3 months prior to the date of incident which took place on 10.10.2002; that on 10.10.2002 despite his marriage with the deceased Bhagya, accused no.1 brought accused no.2 Mamatha to his house and thereafter, she was made to remain in the house on the intervening night of 9.10.2002. There was quarrel in the house in the night and thereafter, at about 3 a.m. on 10.2.2002 it is the case of the prosecution that both accused nos. 1 & 2 doused the deceased Bhagya with kerosene oil and set her on fire by lighting a match stick and throwing at her and that while taking treatment in the Victoria Hospital, on 11.10.2002 at about 4.00 a.m. the injured Bhagya succumbed to the injuries, thereby both of them were charged for offences punishable under section 302 read with section 34 IPC.
4. The prosecution in order to prove its case has examined in all 12 witnesses and got marked Exs.P-1 to P- 18 and produced M.Os. 1 to 4. The defence of the accused was one of total denial. However, the defence got marked 5 Exs. D-1 & D-2. By the impugned judgment, the learned Sessions Judge has convicted the accused and sentenced them as aforementioned. The convicted accused has filed this appeal.
5. Heard Sri.B. Anand, learned counsel for the appellant and Sri. P.M. Nawaz, learned addl. S.P.P. for the State.
6. It is submitted by the learned counsel for the appellant that though the case is merely based on the dying declaration of the deceased Bhagya, there is no endorsement by the doctor under whom the deceased was taking treatment to show that she was in a fit condition to give the statement at the time when P.W.8 Devegowda ASI, has recorded the statement of the deceased on 10.10.2002 at about 5.00 a.m. He submits that the intimation slip Ex.P-9 regarding the admission of injured Bhagya to the hospital has been interpolated by the police by adding the words "patient is fit to make statement" and apart from this endorsement in Ex.P-9, there is absolutely no material to show that the deceased was in a condition 6 to make a statement to the police. He submitted that according to the doctor, the injured had suffered 91% burn injuries whereas, according to the doctor who has conducted the post mortem examination, the patient had suffered 100% burn injuries. In view of the aforesaid extensive burn injuries on the deceased, it is improbable that the deceased would have given such a lengthy statement as contained in Ex.P-8. Therefore, he submits that the prosecution case is shrouded with suspicion. If the prosecution case is relieved of Ex.P-8 - the so called dying declaration of the deceased, then it is the submission of the learned counsel that there is no other evidence on record to hold that the accused has committed the offence. He therefore submits that, the accused is entitled for an order of acquittal.
7. The learned additional SPP on the other hand submits that besides Ex.P-8 which is the dying declaration of the deceased recorded by the police almost immediately after the incident, there is also other material in the form of Ex.P-17 which is the copy of the extract of the accident 7 register of Victoria Hospital which clearly states that the injured Bhagya had stated before the doctor that her husband Chandrashekar and his second wife Mamatha have poured kerosene on her and set her ablaze. It is submitted by the learned Additional SPP that PW 12 Dr. H.V. Shivakumar has not only spoken regarding Ex.P17 and the fact that the deceased was in a fit condition to give statement but also to the fact that she had in fact given a statement that the appellant and his wife had poured kerosene and set her ablaze. PW12 has also stated that he had examined the patient before he sent the intimation Ex.P9 to the Victoria Hospital police outpost. PW 12 has categorically stated that he has examined the patient and he has found the patient fit to give statement and thereafter he has written in Ex.P9 as " Pt. is conscious and fit to give statement". It is further submitted that on a careful consideration of Ex.P9 the dying declaration of Smt. Bhagya, it is clear that the deceased had given a lucid narration of the incident in her house on the night of 9/10.10.2002, and she has clearly implicated the accused nos. 1 & 2 as having poured kerosene on her body at 8 about 3.40 a.m. on that night. It is further submitted that the learned Session's Judge has rightly held the accused guilty and has convicted them. It is further submitted that the appeal may be dismissed.
8. The proceedings in this case commenced with the taking of the injured Bhagya to the Victoria Hospital on 10.10.2002 at about 4.30 a.m. The doctor PW12 who was present in the hospital has entered in the accident register Ex.P-17 as follows:
"History of burns on today at 3.00 a.m. pt. says that she was set ablaze by her husband Chandrashekar and his second wife Mamatha after pouring her with kerosene at her residence".
PW12 was on duty in the Victoria Hospital in the night of 10.10.2002 and on receipt of the patient in the emergency ward he has sent an intimation to the out post stating therein that at about 4.30 a.m. on that night a patient by name Bhagya and also two more patients by name Chandrashekar and Mamatha aged 18, 22 and 18 9 respectively have been admitted and are receiving treatment in the hospital.
PW8 Devegowda ASI at the Subramanyapura Police Station received the intimation when he was on night rounds at about 3.15 a.m. that there was a fire accident at Beereshwar Nagar. He visited the scene of occurrence and found the deceased as well as both the accused having sustained injuries by fire. He shifted all the three patients to the Victoria Hospital. Since Bhagya was seriously injured, she was admitted as inpatient, where as the other two were treated as out patients. He has stated that at about 5.00 a.m. he recorded the statement of Bhagya in the presence of the doctor and before recording the statement he has enquired with the doctor as to whether Bhagya is in a position to give statement and accordingly after ascertaining the fitness of the injured to give statement he has recorded the statement as per Ex. P8; on reaching the Police Station at 5.40 a.m. registered a case in crime no. 336/2002 for an offence punishable under section 307 IPC. Subsequently the said police also received another intimation which is marked as Ex.P11 stating that 10 Bhagya expired at about 4.00 a.m. on 11.10.2002. The said intimation has been sent by PW9 Dr. Thyagaraj who was also working during the said period in the Victoria Hospital. After conducting the necessary investigation, charge sheet came to be filed.
9. Out of the witnesses examined by the prosecution, PWs 1, 2 & 5 have turned hostile to the case of the prosecution, PWs 3, 9 and 12 are doctors. While PW3 has conducted the postmortem examination, Pw9 is the doctor who has sent the death intimation to the Police Station, whereas PW12 is the doctor who has examined the deceased at the time of her admission into the Victoria Hospital. PW4 Ramachandra is the Taluka Executive Magistrate who has conducted the inquest proceedings on the dead body of the deceased. PW6 Venkatalakshmamma is the mother of the deceased. PW7 Venkatesh is the maternal uncle of the deceased and all others are police officials who have conducted part of the investigation in this case.
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10. The prosecution mainly relies on the dying declaration of the deceased Bhagya w/o Chandrashekar, r/o Renukambanagar, Beereshwara nagar, Chunchanghatta, Bangalore which states as follows:
" I am residing as house wife in the above address and I am married to Chandrashekarshekar about 3 months back. He is running an Auto. When the matter stood like this, my husband has got another woman aged about 18 years by name Mamatha, after marrying her on 9.10.2002 in Annamma Temple. We three were sleeping in the house. When we were so sleeping my husband and Mamatha joined together and at about 3.00 a.m. when I was in deep sleep they poured kerosene on my body, I awoke immediately, both of them struck the match stick and set fire to me. Since fire was started immediately, I sustained burn injuries on my entire body. When I was screaming both of them caught hold of me and at that time they also sustained minor injuries on their hands and face. Action may be taken agaisnt my husband Chandrashekar and his second wife Mamtha for setting me on fire and attempting to kill me ---
----"12
This statement has been recorded by PW8 Devegowda at 5.45 a.m. on 10.10.2002 based on which an offence under section 307 IPC has been registered. Subsequently, the injured succumbed to the burns and the case converted to see 302 IPC.
PW6 Venkatlakshmama is the mother of the deceased. She has deposed before court that she knows the accused no.1 since 10 years and that accused no.1 himself had requested her to give her daughter in marriage to him. However, since the accused was having the habit of drinking alcohol she had refused to give her daughter in marriage. However, subsequently Chandrashekar the accused had made friendship with one girl by name Mamatha and in this connection Chandrashekar had gone to jail. Later on, one day the accused came to her house and he remained in the house. Thereafter, the marriage between her daughter and the accused took place. It is also in the evidence of PW6 that during the period of 3 months when he was with her daughter, accused was ill-treating his wife and that later on, it is also in her evidence that he was asking for money. 13 PW6 has also stated regarding the friendship accused no.1 had with accused no.2 and the further fact of her daughter sustaining burn injuries in the house of accused.
PW7 Venkatesh also is a relative of the deceased being the brother of PW6. He has stated that the deceased and the accused no.1 were residing in Chunchanakatte after their marriage and that on hearing about the death of his niece, he learnt about the incident.
PW8 ASI Devegowda has stated that on 10.10.2002 on receipt of information at 3.15 a.m. from the control room he went to the scene of occurrence and secured the injured persons who had suffered burn injuries and thereafter, he has shifted them to the Victoria Hospital. Subsequently, a case has been registered by him. He went to the hospital again and recorded the statement of Smt. Bhagya as per Ex.P8. Subsequently, he came to know that the injured died and thereafter the investigation has been continued. PW8 has been thoroughly cross- examined on the aspect that he has not secured the signature of the doctor in Ex.P8 the dying declaration. However, he has stated in the cross-examination that since 14 the doctor had written in the intimation Ex.P.9 that the patient was in a fit condition to give statement and that she is conscious, he has not found it necessary to take the signature of the doctor again in Ex.P8 itself, since the doctor has also stated that injured is in a position to give statement.
PW9 Dr. Thyagaraj has sent the intimation regarding death of the deceased as per Ex.P11.
PW10 G. Somashekar, has carried the materials to the FSL, Bangalore and thereafter handed over the materials to the Inspector of Police.
PW11 H. G. Dawood Khan the investigating Officer, has visited the scene of occurrence and at the scene of occurrence he has found the match box, burnt kerosene oil can and also the burnt skin which has been seized by him during the mahazar. He has also recorded the statement of witnesses, arrested the accused and finally laid charge sheet in this case.
PW12 is Dr. Shivakumar who was working in Casualty Medical Ward in the Victoria Hospital on the night of 10.10.2002. He was present when patient Bhagya was 15 brought to the hospital at about 4.30 a.m. He has recorded the history of the injuries on Smt. Bhagya that she was set ablaze by her husband Chandrashekar and his second wife Mamatha after pouring kerosene on her at her residence. He has also categorically stated that he has found the patient conscious and was in a fit condition to give statement. Patient had sustained whole body burns of 91% and after examination he has referred the patient to the burns ward in the hospital. Thereafter, he has intimated to the police. He has identified Ex.P9 as the intimation sent by him and he has categorically stated in the witness box that he has mentioned in the said Ex.P9 that the patient was conscious and that she was in a fit condition to give statement. This P.W.12 has been extensively cross-examined with reference to his not noting in Ex.P-8 dying declaration about the fitness of patient Bhagya to give a statement and it is suggested to this witness that the endorsement made by him in Ex.P-9 has been subsequently interpolated at the instance of the police which has been denied by this witness. It is through this witness Exs.P-17 & 18 are also marked which are the 16 xerox copies of the original accident register regarding the admission of Smt. Bhagya in the hospital on 10.10.2002.
11. On a careful consideration of the entire materials on record and the documents available on record, it is seen that before recording the dying declaration, the police have taken abundant caution to see that the doctor attending the patient certifies that the patient is in a fit condition to give the statement. It is clear from Ex.P-9 that even prior to the recording of the statement at about 5.00 a.m. by the police, P.W.12 has already recorded that the deceased was in a fit condition to give a statement and she was conscious. The Supreme Court in the case of LAXMAN vs. STATE OF MAHARASHTRA AIR 2002 SC 2973 has categorically stated as follows:
"The certification of the doctor regarding the patient is only a matter of prudence and not a requirement of law. In order to come to a definite conclusion that what has been adduced from the mouth of the deceased in the form of a dying declaration requires to be ascertained by means of other materials on 17 record since the declarant will not be available for giving evidence before Court."
The Supreme Court has time and again stated that the only assurance of truthfulness of a witness who is not available to depose before Court due to his or her death is the evidence of the medical officer attending such patient certifying that she was in a fit condition to give the statement. On a careful consideration of the evidence of P.W.12, so also the evidence of P.W.8 and the documents Exs.P-9 & P-17, we have no hesitation to hold that at that time when deceased Bhagya had given statement as per Ex.P-8 she was in a fit condition to give a statement. The argument of the learned counsel for the appellant that Ex.P-9 is interpolated cannot be accepted at all because Ex.P-17 has come into existence at the time when patient was brought to the hospital. Exs.P-8 & P-9 are subsequent documents. So far as Ex.P-17 the accident register is concerned, it clearly establishes that by about 4.30 a.m. on 10.10.2002 the names of both the 1st accused as well as the 2nd accused were clearly mentioned by the deceased to the doctor P.W.12. This fact is further ascertained from 18 the fact that the accused has produced Exs.D-1 & D-2 which also indicate that both Chandrashekar & Mamatha A-1 & A-2 were also examined on the same day and their O.P. Number as found in Exs. D-1 & D-2 are mentioned in Ex.P-9 by P.W.12.
12. Under the circumstances, even before Exs.P-8 & P-9 are brought into existence, the fact that the cause of the injuries on Bhagya was due to the pouring of kerosene by Chandrashekar and Mamatha and the declaration of the victim has been already recorded in a public document Ex.P-17. It has to be further noted that in the 313 statement recorded from the accused to the last question, i.e. question no.59, the accused has replied that the deceased Bhagya had poured kerosene on herself and was screaming and at that time both of them got up and were trying to extinguish the fire. This answer indicates that both accused nos. 1 & 2 were present in the house along with the deceased and that deceased had caught fire by kerosene. Under the circumstances, in view of the evidence of P.Ws. 8 & 12 and documents Exs.P-17 & 18 it 19 is conclusively proved that the accused himself has poured kerosene on the deceased along with accused no.2 and has been the cause of death of deceased Bhagya.
13. We have gone through the entire judgment of the learned Sessions Judge and we find that the order of conviction passed by the learned Sessions Judge is neither perverse nor against any settled principles of law but is based on the evidence on record. After a thorough consideration and re-appreciation of the evidence on record, we do not find any illegality or impropriety in the order of the trial Court so as to interfere with the order of conviction and we hold that this appeal has no merits and the same is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Sak