Karnataka High Court
State Of Karnataka vs Santosh Basayya Yenagimath on 25 February, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
AND
THE HON'BLE Mr. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.100358 OF 2017
BETWEEN:
State of Karnataka,
Represented by the
Police Sub-Inspector,
Murugod Police Station,
Belagavi District
Through the Additional
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka, Dharwad Bench.
.. Appellant
(By Sri. V.M. Banakar, Additional State Public Prosecutor)
AND:
Santosh Basayya
Yenagimath, Age: 28 years,
Occ: RMP Doctor, R/o. Hirekoppa,
Now residing at Yaragatti
Tq: Saundatti, Dist: Belagavi.
.. Respondent
(By Sri. Avinash M. Angadi, for
Sri. Santosh B. Malagoudar, Advocate )
Crl.A.No.100358/2017
2
***
This Criminal Appeal is filed under Section 378 (1) and (3)
of the Code of Criminal Procedure, 1973, praying to grant leave
to appeal against the judgment and order of acquittal dated
21-04-2017 passed by the learned Principal Sessions Judge,
Belagavi in Sessions Case No.75/2015; to set aside the judgment
and order of acquittal dated 21-04-2017 passed by the learned
Principal Sessions Judge, Belagavi in Sessions Case No.75/2015
and convict the respondent/accused for the offences punishable
under Sections 302 and 504 of the IPC, in the interest of justice
and equity.
This Criminal Appeal having been heard and reserved on
02-02-2022, coming on for pronouncement of judgment this
day, Dr.H.B. Prabhakara Sastry J. delivered the following:
JUDGMENT
The present respondent/accused was tried by the Court of the learned Principal Sessions Judge, Belagavi, at: Belagavi (henceforth for brevity referred to as "the Sessions Judge's Court") in Sessions Case No.75/2015, for the offences punishable under Sections 302 and 504 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and the said Sessions Judge's Court, by its judgment dated 21-04-2017, acquitted the accused of the offences charged against him. It is against the said judgment of acquittal, the complainant -State has preferred this appeal.
2. The summary of the case of the prosecution is that, the deceased Ms.Naushad, D/o. Rajesab Gokak, was in live-in Crl.A.No.100358/2017 3 relationship with the accused and they were living together in a rented house bearing House No.340/9/2 of Yaragatti, within the limits of complainant Police Station. They had sexual relationship also between them. The accused often used to tease her by calling her as his mistress. He developed suspicion about the character and fidelity of Ms. Naushad. That being the case, on 07-09-2014, at about 9:30 p.m., in their house at Yaragatti, while the deceased Naushad was at home cooking food, the accused came home in a drunken condition and started quarrelling with her and started abusing her and complaining that, she has kept sexual relationship with others and that he is going to finish her off then and there itself. Stating so, with an intention to do away with her life, the accused took the kerosene Can found there and poured kerosene on her and lit fire to it with a match stick. Due to fire, the deceased Naushad sustained several burn injuries. She was initially shifted by the neighbours after dousing the fire, to the Community Health Centre at Yaragatti and from there to the District Hospital at Belagavi, where, on 14-09-2014, while under treatment, she succumbed to the injuries sustained.
Crl.A.No.100358/20174
3. The respondent/accused was charge sheeted for the offences punishable under Sections 302 and 504 of the IPC. Since the accused pleaded not guilty, charges were framed against him for the said offences.
4. In order to prove the alleged guilt against the accused, the prosecution got examined in all nineteen (19) witnesses as PW-1 to PW-19 and got marked documents from Exs.P-1 to P-40 and Material Objects at MO-1 to MO-4. From the accused's side, neither any witness was examined nor any documents were marked as exhibits. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 21-04-2017, acquitted the accused of the offences punishable under Sections 302 and 504 of the IPC. Challenging the same, the prosecution has preferred the present appeal.
5. The respondent/accused is being represented by his learned counsel.
6. The Sessions Judge's Court's records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of Crl.A.No.100358/2017 5 appeal, impugned judgment and the Sessions Judge's Court's records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
9. After hearing both side, the points that arise for our consideration in this appeal are:
i] Whether the prosecution has proved beyond all reasonable doubts that, on 07-09-2014, at about 9:30 p.m., in a rented house bearing No.340/9/2 of Yaragatti, within the limits of complainant Police Station, the accused abused the deceased Naushad in filthy language and accused her of maintaining illicit relationship with others and threatened of finishing her then and there itself and thus has committed the offence punishable under Section 504 of the Indian Penal Code, 1860?
ii] Whether the prosecution has proved beyond all reasonable doubts that, on the above said date, time and place, in continuation of his act, the accused, with an intention to do away with the life of the deceased Naushad, poured kerosene upon her and put fire to it by litting a match stick, due to which fire, deceased Naushad sustained burns, which resulted in her death on 14-09-2014 at 5:00 p.m. in the District Hospital at Belgaum and thereby the accused has committed an Crl.A.No.100358/2017 6 offence punishable under Section 302 of the Indian Penal Code, 1860?
iii] Whether the judgment of acquittal under appeal deserves any interference at the hands of this Court?
10. According to the prosecution, though the alleged incident of putting fire to the deceased by the accused took place on 07-09-2014 at about 9:30 p.m., in their house at Yaragatti, and that the injured was said to have been shifted to Community Health Centre at Yaragatti by the neighbours on the same night, however, a complaint came to be registered only on the next day i.e. on 08-09-2014 at 2:15 p.m., after PW-6 - Assistant Sub- Inspector of Police, Murgod Police Station is said to have recorded the statement of the injured in the District Hospital at Belagavi and registered it in their Station Crime No.284/2014 against the accused for the offences punishable under Sections 307 and 504 of the IPC. After the death of the deceased due to burns, Section 302 of the IPC came to be incorporated in the crime, in place of Section 307 of the IPC.
11. In order to prove the alleged guilt against the accused, though the prosecution examined an all nineteen (19) Crl.A.No.100358/2017 7 witnesses from PW-1 to PW-19, but it is only PW-6, PW-13, PW-14, PW-15 and the Investigating Officer, who are shown to have supported the case of the prosecution. Among them, PW-1 and PW-2 were projected as the neighbours of the deceased Naushad and PW-3, PW-4 and PW-5 were projected as the residents of the same village. However, it was also the case of the prosecution that all these witnesses have gone to the house of the deceased on the night of the alleged incident and put off the fire found on the body of the deceased and shifted her to the Hospital. However, none of these witnesses have supported the case of the prosecution. PW-1 stated that, he knows the deceased Naushad, but does not know the accused. However, PW-2, who is the wife of PW-1, has stated that she knows both the accused and the deceased Naushad and deceased was living in the house of CW-8 and accused was also living with her. PW-3 stated that, he knows both the accused and the deceased. PW-4 and PW-5 stated that, they do not know the accused and deceased Naushad. However, with respect to the alleged incident of fire, none of these witnesses have supported the case of the prosecution. On the other hand, they pleaded their total ignorance about the alleged incident. Still, PW-1 and PW-2 Crl.A.No.100358/2017 8 stated that deceased Naushad died due to burn injuries, but both of them pleaded their ignorance as to how the deceased sustained burns. Thus, the prosecution, except the statement of PW-2 that the accused and deceased were living together in a rented house belonging to CW-8, could not get any support from these witnesses. Even after getting them treated as hostile and cross-examining them also, the prosecution could not get any support from any of these witnesses.
12. PW-6 - Maruti Gurusiddappa Marihal, Assistant Sub- Inspector of Police, Murgod, in his evidence has stated that, on 08-09-2014 at about 8:30 a.m., based upon a telephonic intimation about the MLC received from APMC Police Station as per Ex.P-10, he proceeded to BIMS Hospital, Belagavi at 9:30 a.m. and saw that both the deceased and the accused were admitted in the said Hospital. Immediately, he sent a requisition as per Ex.P-11, to the Taluka Executive Magistrate, Belagavi, requesting him to record the dying declaration of Ms. Naushad. He also gave a written requisition as per Ex.P-12 to the Medical Officer, BIMS, to give a report about the fitness of injured Naushad to give the statement. The Medical Officer gave a report as per Ex.P-12 (b), stating that she was in a fit condition Crl.A.No.100358/2017 9 to give her statement. The witness further stated that the Taluka Executive Magistrate visited the Hospital at about 11:05 a.m. and recorded the dying declaration of Naushad. Thereafter, he (this witness) went inside the Ward and spoke to Naushad. As requested by Naushad, he also recorded her statement, as per Ex.P-13. Having returned to the Police Station, he handed over the said statement at Ex.P-13 to the Station House Officer, who registered the same in their Station Crime No.284/2014.
The witness further stated that, on 14-09-2014, through CW-26, he came to know that Naushad succumbed to the burns. As instructed, he made arrangement for the post-mortem examination of her body and got the post-mortem examination done. He delivered the dead body to CW-8, the relative of the deceased Naushad, after post-mortem examination. In this regard, he has identified his report at Ex.P-14. He has also identified the photographs of deceased Naushad at Ex.P-17 and photograph of the dead body at Ex.P-18.
13. PW-7 - Pundalik Adiveppa Torgal and PW-8 -
Somappa Shivappa Kalannavar, though were projected as panchas for the scene of offence panchanama at Ex.P-2, Crl.A.No.100358/2017 10 however, they did not support the case of the prosecution. Though they identified their signatures in the said panchanama, they stated that they do not know as to the contents of the said panchanama.
14. PW-9 - Smt. Bibijan Mahammadali Hukkeri was projected as the land lady in whose house, the deceased Naushad was said to be residing and also as the person knowing about the live-in relationship of the accused and the deceased and about their alleged illicit relationship. The prosecution had also projected her stating that she also had the knowledge of the alleged incident of burns caused to the deceased at the instance of the accused. However, the said witness, except stating that the deceased was living in her house on rental basis at Yaragatti, has not supported the case of the prosecution any further. Though she stated that, hearing about the burns sustained by the deceased Naushad, she went to Civil Hospital at Belagavi, but also stated that the patient did not express anything even by gesture. Even after getting her treated as hostile, the prosecution could not elicit any further statement in its favour in her cross-examination.
Crl.A.No.100358/201711
15. PW-11 - Dr. Ashok Kumar Shetty has spoken about he conducting autopsy on the body of deceased Naushad and giving post-mortem report as per Ex.P-23. He has stated that the deceased had sustained 60% to 70% burns. According to him, the death was due to septicemia, as a result of 65% to 70% burns sustained. In his cross-examination, he admitted a suggestion as true that such burn injuries could be caused accidentally also.
16. PW-12 - Dr. Savitri Prabhappa Bendigeri has stated that, while working as Chief Medical Officer in a Community Health Centre at Yaragatti, she has examined injured Naushad on 07-09-2014 at 10:45 p.m., when she was brought to the Health Centre at Yaragatti by a Police Constable by name Rangannavar and Assistant Sub-Inspector of Yaragatti outpost. The witness has stated that Naushad was smelling of kerosene and was conscious and talking and she was also well oriented. She noticed several burns on different parts of her body. The witness stated that she noticed burns on Naushad which she has described as below:
"1. Complete face burnt. Hairs singed.
2. Neck, front of whole chest, both chest burns present and peeling of skin present.Crl.A.No.100358/2017
12
3. Whole of abdomen, till upper 3rd part of both thighs burnt and peeling of skin present.
4. Both right and left (upper limbs) arm and fore arms, front and back burns present and peeling of skin present.
5. Whole of back till waist reason burns present and peeling of skin present."
The witness stated that, she gave her (deceased Naushad) the initial treatment and advised to shift her to BIMS Hospital for further treatment. In that regard, she has issued a Wound Certificate as per Ex.P-24. The witness produced the MLC Register maintained in her Hospital and got it marked as Ex.P-25. The witness further stated that along with the injured Naushad, the Police had also brought the accused to her Hospital whom also she examined. According to the witness, he was also smelling kerosene. She noticed the following injuries upon him.
" 1. Face right side full burnt with blebs, chin burnt with blebs.
2. Front of chest burnt, left side cheek burnt.
3. Right and left palms both sides burnt and skin peeling and nails burnt.
4. Right arm and fore arm ventral side burnt.
5. Left arm and fore arm front side burnt." Crl.A.No.100358/2017 13
The witness stated that after giving first aid treatment to him (accused), she advised that, he also must be taken to BIMS Hospital, Belagavi for higher treatment. Stating so, the witness identified the Wound Certificate at Ex.P-26 as the one issued by her with respect to the examination of the accused.
17. PW-13 - Preetam Bahubali Nasalapure in his evidence has stated that, while working as Tahsildar of Belagavi, on 08-09-2014 morning, he received a requisition from the Assistant Sub-Inspector, Murgod, for recording statement of injured Smt. Naushad, W/o. Khazesab Gokak. On the same day at 11:00 a.m., he went to Civil Hospital, Belagavi and enquired about the health condition of the injured victim to give her statement. From the Duty Doctor Mr. Sanjay Karpoor, he confirmed that the patient was in a good condition to give her statement. Then, himself, joined by his case worker approached the injured and enquired her. He put questions to the injured and the answers given by her were recorded by him. The witness stated that he also ascertained the condition of the patient to give statement from the mouth of the patient and said that she was conscious and capable of understanding the questions put to her and capable of giving answers to them. It is Crl.A.No.100358/2017 14 then he proceeded to record her statement. The witness further stated that when he asked the injured patient as to who was responsible for her then condition, the patient informed him that, it was her friend Santosh Basayya Yenagimath (accused) of Mathada Oni of Yaragatti. The patient also told that on the previous night at 9:30 p.m., said Santosh having come in an intoxicated condition, abused and assaulted her and then poured kerosene upon her body and lit fire to it. Therefore she has sustained burn injuries. The witness stated that she also shown the burn injuries inflicted upon her. The witness further stated that the incident took place in her house situated at Mathad Galli, Yaragatti. The witness stated that the patient also told him that she was having illicit relationship with Santosh since nine months, as such, they were residing together in the said house. Since last few days, Santosh was suspecting her chastity and fidelity and that he was consuming liquor and quarrelling with her. The witness also stated that the patient told him specifically that it was the accused who poured kerosene on her body and lit fire, as such, he is responsible for her said condition.
The witness stated that, after recording her statement, he took her left toe impression on the statement recorded by him. Crl.A.No.100358/2017 15 He has identified the requisition received by him from the ASI, Murgod Police Station at Ex.P-27, the dying declaration of injured Naushad said to have been recorded by him at Ex.P-28, his signature therein at Ex.P-28(a) and the left toe impression of the deceased Naushad at Ex.P-28(b). He also stated that after verification, he has once again put his signature below the verification which he has identified at Ex.P-28(c). He has stated that, Dr. Sanjay Kapoor, who gave his opinion regarding the health condition of the injured victim has also made his endorsement on the dying declaration at Ex.P-28(d). The witness has stated that subsequently, he has sent the statement recorded by him to the Court on 17-02-2016, duly serving a photocopy thereof to the Investigating Officer. The witness stated that the finger prints of both the hands of the injured victim were burnt, as such, he took the left toe impression of the injured on her statement.
This witness was subjected to a detailed cross- examination, wherein he adhered to his original version.
18. PW-14 - Ratansingh Patel has stated that while working as Casualty Medical Officer in BIMS Hospital, Belagavi, on 08-09-2014, in the night at about 12:55 a.m., he attended to Crl.A.No.100358/2017 16 a patient by name Santosh Basayya Yengimath brought in an ambulance along with reference letter from PHC Yaragatti, with the history of burns at Yaragatti. He has stated that he examined the patient who was drowsy and noticed superficial deep burn injuries on face, neck, chest, sternal region and both the upper limbs. After giving first aid treatment, the patient was shifted to burns ward. Stating so, the witness has identified the Wound Certificate issued by him at Ex.P-29. The case summary sheet and discharge card pertaining to the said injured were identified by him at Exs.P-30 and P-31.
The witness further stated that on the same day i.e. on 08-09-2014, in the night at about 1:00 a.m., he has also examined injured Naushad who was also brought in an ambulance in which the injured Santosh Basayya Yengimath was brought. A reference letter from PHC, Yaragatti was also sent along with the patient who was brought with the history of burns on 07-09-2014 at 9:30 p.m. in the house at Yaragatti. The witness stated that the patient was also drowsy and he noticed burn injuries on her face, neck, both upper limbs anterior portion of chest and abdomen, partially on posterior portion of chest and abdomen, anterior aspect of both thighs of upper one third. Crl.A.No.100358/2017 17 After giving first aid treatment, she was shifted to burns ward. The witness stated that while in the burns ward, the injured Naushad succumbed to the injuries on 14-09-2014 at 12:05 a.m. He informed the same to the Police as per intimation at Ex.P-32. He has produced the OPD sheet prepared in respect of the injured Naushad when she was admitted in Casualty Department and got it marked at Ex.P-33. In his cross-examination, the witness stated that he had enquired both the patients while examining them. Though they were drowsy, both the patients told him that they sustained burn injuries at home.
Dr. Sanjay Karpoor, the Associate Professor in BIMS Hospital and also working in BIMS Hospital, Belagavi, was examined as PW-15. The said witness in his evidence has stated that he has examined the injured Naushad admitted in their hospital with the history of burns. Upon the request made by the PSI, Murgod Police Station, he has examined the condition of the patient for giving her statement and found that she was in a fit condition to give statement, which he has endorsed as per Ex.P-12(b). The witness stated that he examined the patient before making endorsement at Ex.P-12(b). He found the patient as being conscious and able to give answers. The witness also stated that Crl.A.No.100358/2017 18 on the same day and at the same time, the Taluka Executive Magistrate had also visited their Hospital and after enquiry with him about the health condition of patient Naushad for giving her statement, he proceeded to record the statement of the injured after he (this witness) gave an endorsement as per Ex.P-28(d) stating that the injured witness was in a fit condition to give her statement. The witness stated that the Taluka Executive Magistrate recorded the statement of the patient Naushad. He further stated that on 14-09-2014, the patient Naushad died in the burns ward. The case summary of deceased Naushad, he has marked at Ex.P-34.
The witness also stated that a patient by name Santosh was also admitted to burns ward in their Hospital on 08-09-2014 in the night at about 1:00 a.m. with 25% to 30% of superficial deep burns. Next day morning, he examined the said patient also and noticed that he was conscious, well oriented with time and place. The treatment was given to him. He has produced the case summary pertaining to the said Santosh Basayya Yengimath and got it marked as Ex.P-30. In his cross- examination from the accused's side, he adhered to his version Crl.A.No.100358/2017 19 that the deceased Naushad was in a fit condition to give her statement.
19. PW-16 - Ayubkhan Pathan, the Head Constable of the complainant Police stated that he has carried the FIR from the Police Station to the Court in this case.
20. PW-17 - Rurdrappa Talawar has stated about he tracing the accused and producing him before the Investigating Officer and submitting a report in that regard as per Ex.P-36.
21. PW-18 - M.P. Nander, another Head Constable of the complainant Police Station has stated about he receiving an MLC through phone message from APMC Police Station, Belagavi, on 08-09-2014 and requesting the ASI by name M.G. Marihal to go to the Hospital for recording the statement of the victim. He has also stated that the said ASI having returned from the Hospital, produced before him the statement of injured Naushad (complaint), which he registered in their Station Crime No.284/2014 and after preparing the FIR as per Ex.P-37, he sent the same to the Court. He further stated that in this case, he has also sent requisitions to the PDO, Grama Panchayat, seeking the house extract of victim's house, which he collected as per Crl.A.No.100358/2017 20 Ex.P-21. On 14-09-2014, he received the death information of victim in this case and substituted Section 307 with Section 302 IPC in the case, with the permission of the Magistrate. He also stated that, he has recorded the statements of several of the charge sheet witnesses in this case. He has also stated that he has carried the sealed material objects to the Forensic Science Laboratory (FSL), Bangalore.
22. PW-19 - Sudhakar Naik, the then Circle Inspector at Saundatti has stated that, he took up the further investigation in this case on 14-09-2014 and recorded the further statements of several of the charge sheet witnesses, collected post-mortem report, arrested the accused who was produced before him, requested for the wound certificate and the dying declaration issued and recorded in this case and collected the Wound Certificate and copy of the dying declaration. He further stated that he sent the seized articles to Forensic Science Laboratory (FSL) and after completing the investigation, he has filed the charge sheet in this case. The denial suggestions made to him were not admitted as true by this witness.
Crl.A.No.100358/201721
23. In the light of the above evidence, it was the argument of the learned Additional State Public Prosecutor for the appellant that, the Doctor who conducted autopsy has spoken that the death was due to burns. So also, PW-1 and PW-2 also have stated that the deceased died due to burns. Even though some of the prosecution witnesses have not supported the case of the prosecution, however, the evidence of PW-6 that he recorded the statement of the deceased, the evidence of PW-13 that he recorded the dying declaration of the deceased and the evidence of PW-15 - duty Doctor that the deceased was in a fit condition to speak, proves beyond all reasonable doubts that, the deceased has given her dying declaration as well a complaint statement in which she has categorically and clearly stated that, it was the accused who has poured kerosene upon her and put fire with an intention to kill her. Thus, the act of the accused falls under clause Fourthly of Section 300 of the IPC. However, the Trial Court has erroneously disbelieved the dying declaration as well the statement of the deceased which resulted in the Trial Court passing an erroneous judgment of acquittal in favour of the accused.
Crl.A.No.100358/201722
In his support, the learned Additional State Public Prosecutor relied upon the judgment of the Hon'ble Apex Court in the case of Nagabhushan Vs. State of Karnataka reported in (2021) 5 Supreme Court Cases 222, which judgment would be referred to at an appropriate stage here afterwards.
24. Learned counsel for the respondent/accused in his argument submitted that, majority of the prosecution witnesses including the material witnesses have not supported the case of the prosecution. Further, the prosecution has also failed to prove the motive behind the alleged crime. Learned counsel also submitted that the alleged dying declaration and the alleged statement of the injured complainant since creates doubts in believing them, the Trial Court, rightly did not believe the dying declaration of the deceased. He also submitted that, the statement of PW-13 in his evidence that, the dying declaration was not recorded in the language and words used by the deceased itself would go to show that the said dying declaration is a doubtful document.
In his support, he relied upon a judgment of the Hon'ble Apex Court rendered in the case of Muralidhar alias Gidda and Anr Vs. State of Karnataka reported in AIR 2014 Supreme Court Crl.A.No.100358/2017 23 2200, which judgment would be referred to at an appropriate stage here afterwards.
25. In the instant case, many of the prosecution witnesses whom the prosecution has projected as material witnesses have not supported the case of the prosecution. Among them, the primary witnesses whom the prosecution had expected that they would throw more light about the incident, however, who disappointed the prosecution are, PW-9 and PW-10, who are undisputedly, the sister and brother-in-law of the deceased. However, both these witnesses, except stating that the deceased was living in their house on rental basis at Yaragatti and that she was working in a cloth shop at Yaragatti, have not thrown any light regarding their alleged knowledge with respect to the accused and the alleged live-in relationship of the accused and the deceased. Both of them by stating that they have never seen the accused earlier and that they do not know anything about the live-in relationship of the accused and the deceased, have disappointed the prosecution. No doubt, though both of them have stated that they visited the deceased in the Hospital while she was under treatment for burn injuries, but did not speak anything about they hearing the details of the incident Crl.A.No.100358/2017 24 from the mouth of the deceased. On the contrary, PW-9 stated that when she visited her injured sister in the Hospital, the injured was not speaking. Both these witnesses have even denied that they have given any statement to the Investigating Officer as per Ex.P-19 and Ex.P-21 respectively.
26. The second set of witnesses among whom the prosecution had fond hope are PW-1 and PW-2, who are the husband and wife inter se. According to prosecution, PW-1 and PW-2 being the neighbours of the deceased were aware of the fact of the live-in relationship of the accused with the deceased Naushad and also PW-1 had put off the fire and also shown the spot of the offence to the Police. However, PW-1, though stated that the deceased was living in the house of CW-8, but has stated that he does not know the accused. He also stated that he does not know anything about the accused quarrelling with the deceased and their alleged illicit relationship. He further proceeded to say that he does not know how the deceased suffered burn injuries. He specifically stated that he did not go and put off the fire on the body of the deceased on 07-09-2014 at about 9:30 p.m. He even denied that he had given any statement to the Police as per Ex.P-1 and had shown the scene Crl.A.No.100358/2017 25 of offence to the Police where panchanama is said to be drawn in his presence as per Ex.P-2. However, he has identified himself in two photographs at Exs.P-3 and P-4, which, even according to him, was taken in the house of the deceased. Thus, his evidence that he did not know the place of the offence creates some doubt.
PW-2, though followed her husband, i.e. PW-1, in her evidence, however, she specifically stated that she knew both the accused and the deceased and that the deceased was living in the house of CW-8 and accused was also living with her. Though she stated that the deceased Naushad died due to burn injuries, but she stated that she does not know how she suffered burn injuries. She even denied that she has stated so before the Police in her statement as per Ex.P-5. However, it is to be noticed that this witness was not cross-examined by the accused's side, as such, her evidence given in the examination- in-chief that, she knew both the accused and the deceased in the adjacent house of the deceased and that the accused and deceased were living together, has remained un-denied. Crl.A.No.100358/2017 26
27. The next set of witnesses among whom the prosecution had mainly relied are, PW-3, PW-4 and PW-5, who, according to the prosecution, were the persons who had put off the fire and heard about the incident from the mouth of the deceased. However, as observed above, all these three witnesses have also not supported the case of the prosecution.
28. Thus, the entire case of the prosecution rests upon a portion of the evidence of PW-2, regarding the live-in relationship of accused and the deceased Naushad and their co- living in the house of CW-8 and the alleged dying declaration said to have been given by the deceased Naushad before PW-13
- Taluka Executive Magistrate and her alleged statement before PW-6 - Assistant Sub Inspector of the complainant Police. As already observed above, PW-6, in his evidence has stated that, after coming to know over telephone about the deceased having been admitted in the District Hospital with the history of burns, he rushed to the Hospital and after confirming from the Doctor that the patient was in a fit condition to give her statement, gave a requisition to the Taluka Executive Magistrate (PW-13), requesting him to record the dying declaration of the injured and ensured that PW-13 recorded the dying declaration of the injured Crl.A.No.100358/2017 27 and thereafter, he (PW-6) also recorded the statement of the injured Naushad, which statement was subsequently registered as the first information cum complaint in the case.
Similarly, PW-13 also has stated that he recorded the dying declaration of the deceased subsequent to the requisition given to him by PW-6 in that regard. The said statement recorded by PW-6 is at Ex.P-13 and the alleged dying declaration of the deceased said to have been recorded by PW-13 is at Ex.P-28. Thus, the entire case of the prosecution mainly rests upon the alleged dying declaration at Ex.P-28 and the alleged statement of the injured complainant at Ex.P-13.
29. In the case of Muralidhar alias Gidda and another Vs. State of Karnataka (supra), the Hon'ble Apex Court, while dealing with an appeal against acquittal, had enunciated the principles to be kept in mind, while dealing with such appeals, in paragraph 12 of its judgment in the following words:
"....Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) there is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial Court, Crl.A.No.100358/2017 28
(ii) the accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court.
It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court".
The present appeal since being an appeal against a judgment of acquittal, the above principles enunciated by the Hon'ble Apex Court will be borne in mind.
Crl.A.No.100358/201729
30. As already observed above, the case of the prosecution is mainly based on the dying declaration alleged to have been given by the deceased Naushad and also her alleged statement before PW-6.
31. The Hon'ble Apex Court in the case of Purshottam Chopra and another Vs. State (Government of NCT of Delhi) reported in (2020) 11 Supreme Court Cases 489, after referring to its several previous judgments, has summed up some of the principles relating to recording of dying declaration and its admissibility and reliability in paragraph 21 of its judgment, which is extracted here below:
"21. For what has been noticed hereinabove some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:
21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.
21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of Crl.A.No.100358/2017 30 mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
21.4. When the eye witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.
21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.
21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."
The above principles are also required to be borne in mind while analysing Exs.P-23 and P-28 and corresponding oral Crl.A.No.100358/2017 31 evidence led by the prosecution with respect to those documents.
32. PW-6 - Assistant Sub-Inspector of Police of the complainant Police Station, in his evidence, has stated that after receiving the telephonic MLC from APMC Police Station stating that Noushad Gokak (deceased) and Santosh Yenagimath (accused) were admitted to BIMS (Hospital), Belagavi, with burn injuries and he should go there, he made entry in the Station House Diary to that effect and immediately went to BIMS Hospital, Belagavi at 9:30 a.m. After seeing the injured Naushad in the Female Burns Ward and the accused in the Male Burns Ward of the Hospital, he sent a requisition to the Taluka Executive Magistrate, Belagavi, requesting him to record the dying declaration of injured Naushad. He has further stated that, he personally carried the requisition and gave it to the Taluka Executive Magistrate, Belagavi and immediately returned to the Hospital. He also gave a written requisition to the Medical Officer, BIMS, to give a report as to whether injured Naushad was in a fit condition to give her statement. The witness has further stated that the Medical Officer gave a report stating that, she was in a fit condition to give statement. The witness has Crl.A.No.100358/2017 32 marked MLC intimation received by his Police Station through e-mail at Ex.P-10 and requisition given by him to the Taluka Executive Magistrate at Ex.P-11 and his requisition to PW-15 - Medical Officer, BIMS, at Ex.P-12 and the opinion given by the Medical Officer (PW-15) (CW-21) - Dr. Sanjay Karpoor at Ex.P-12(b).
The witness has further stated that the Taluka Executive Magistrate came to Hospital at about 11:05 a.m. and recorded the statement of the injured Naushad. At that time, he remained outside the ward.
33. The Taluka Executive Magistrate, who was examined as PW-13, in his evidence, has stated that on 08-09-2014, he received a requisition from PW-6 - Assistant Sib-Inspector, Murgod Police Station, for recording the statement of the injured Smt. Naushadbi Khazesab Gokak. On the same day at 11:00 a.m., he went to Civil Hospital, Belagavi, and met the duty Doctor - Mr. Sanjay Kapoor in burns Ward and ascertained from him about the health condition of the injured and asked him whether the injured was in a fit condition to give statement. It is only after the Doctor informed him that the patient was in a fit Crl.A.No.100358/2017 33 condition to give the statement, he proceeded to record the statement of the injured Naushad.
The said evidence of PW-6 and PW-13 could not be shaken in their cross-examination, though both of them were thoroughly cross-examined. Thus, the evidence of PW-6 shows that he requested PW-13 - Taluka Executive Magistrate to record the statement of the injured Naushad and the evidence of PW-13 would go to show that it is only after ascertaining from the Doctor on duty (PW-15) about the fitness of the injured to give her statement, he proceeded to record the statement of the injured Naushad.
34. The evidence of PW-15 - Dr. Sanjay Karpoor also supports the evidence of PW-6 and PW-13 that, both of them had ascertained from him about the fitness of the injured Naushad to give her statement to them. PW-15 has also stated that he has examined the injured Naushad and after mentioning that she was in a fit condition to give statement, he has made his endorsement as per Ex.P-12(b) with his signature at Ex.P12(c) and also told the Taluka Executive Magistrate who had approached him that the patient was in a fit condition to give her Crl.A.No.100358/2017 34 statement, in which regard, he has made his endorsement on the statement of the injured Naushad at Ex.P-28(d). This clearly establishes that before recording the statement of the injured Naushad, both PW-6 and PW-13 had got the injured medically examined by the competent duty Doctor and it is only after the Doctor certified that the patient was in a fit condition to give her statement, they proceeded to record her statement. To that effect, the statement alleged to have been given by the injured Naushad which is at Ex.P-28 bears the endorsement of the Doctor certifying that the patient was in a fit condition to give her statement at Ex.P-28(d).
35. PW-13, in his evidence has further stated as to in what manner he recorded the statement of the injured Naushad. He has shown that before proceeding to record her statement regarding the incident, he asked the injured some general questions to ascertain whether she was conscious and capable to understand the questions and give answers to them. It is only thereafter he has proceeded to record her statement. The witness stated that he put her several questions, for which she gave him the answers which he has recorded in the questions and answers format, which he has identified at Ex.P-28. The Crl.A.No.100358/2017 35 witness also stated that for his question as to who was responsible for her then condition and how the incident took place, the injured informed him that her friend Santosh Basayya Yengimath of Mathada Oni, Yaragatti Taluk, Saundatti, came in an intoxicated condition on the previous day night at about 9:30 p.m., abused and assaulted her and then poured kerosene on her body and lit fire, as such, she sustained burn injuries. The witness stated that the injured also shown her injuries caused on her stomach, chest and two hands. The witness further stated that when he asked her about the place where the incident took place, the injured replied that it was in her house situated at Mathad galli, Yaragatti. The witness further stated that at his question regarding the intention of Santosh to commit the offence, the injured Naushad replied that she was having illicit relationship with Santosh since nine months, therefore, they were residing together at Mathad galli at Yaragatti and since last few days, Santosh was suspecting her chastity and fidelity and was consuming liquor and coming home in a drunken state and quarreling with her. On the night of the incident also, he came in a drunken state, poured kerosene on her body and lit fire, as such, he is responsible for her said condition. The very same Crl.A.No.100358/2017 36 answers said to have been given to PW-13 to his questions to the injured are reflected in the form of recording of the statement of the injured Naushad in Ex.P-28. Further it is in a question and answers format. Even in the said statement at Ex.P-28 also, the injured has stated that it was the accused and accused only who poured kerosene upon her and lit fire on the previous day night, suspecting her character and fidelity. She has also stated that since nine months prior to the incident, both of them were having illicit relationship with each other and were living together in a house at Yaragatti.
PW-13 has also stated that since the fingers of both the hands of the victim were burnt, he took her left toe impression on her statement, which left toe impression he got marked as Ex.P-28(b). Thus, PW-13 has shown that, by following due process of law and taking all precautions which are required to be taken while recording the dying declaration, he has recorded the statement of the injured Naushad. However, in his cross- examination, though the witness has withstood all the questions put to him successfully and could not allow the defence counsel to shake his evidence, but at one place, in a single sentence, he has admitted a suggestion as true that, he has not used the Crl.A.No.100358/2017 37 specific words or language which was spoken by the injured victim.
36. It is heavily relying upon the said single sentence in his cross-examination, the learned counsel for the respondent/ accused vehemently submitted that, the dying declaration recorded, not in the language or words of the deceased Naushad, is not reliable.
In his support, he relied upon a decision of the Hon'ble Apex Court in the case of Muralidhar alias Gidda and Anr Vs. State of Karnataka (supra).
In the said case, the Trial Court has acquitted all the accused for the offences punishable under Sections 302, 307, 144, 148 read with 149 of the IPC. In the appeal filed by the State, this Court maintained the acquittal of the accused No.5, but convicted accused Nos.1 to 4 and accused No.6 for the offence under Section 302 read with Section 149 of the IPC. Challenging the same, the convicted accused had preferred an appeal before the Hon'ble Apex Court. The case in the said appeal also had involved inter alia, a dying declaration at Ex.P-22 as the sole basis for conviction. The Hon'ble Apex Court, after noticing that the dying declaration recorded was not Crl.A.No.100358/2017 38 directly from actual words of maker but by witness on oration of Police Sub-Inspector in the presence of Doctor held that, the same, by itself, creates lot of suspicion about its credibility. It further observed that the evidence of witnesses recording the dying declaration coupled with the fact of over-writing about the time of recording the statement and insertion of two names by different ink, has rightly made the Trial Court to hold that, it was not safe to rely upon the dying declaration and acquitted the accused for want of any other evidence.
37. With respect to the alleged difference in the language or not recording the statement of the injured victim in the exact words used by the injured, few more judgments of the Hon'ble Apex Court are also required to be referred to as below:
[a] In the case of Mafabhai Nagarbhai Raval Vs. State of Gujarat reported in (1992) 4 Supreme Court Cases 69, with respect to Section 32 of the Evidence Act (dying declaration), wherein also, the incident was said to be involving pouring of kerosene on the deceased and setting fire causing serious burn injuries of 99% to her and recording of dying declaration by the Doctor within five minutes of the occurrence of the alleged Crl.A.No.100358/2017 39 incident followed by recording of the statement by the Taluka Executive Magistrate, the Court though observed that, though the Trial Court has doubted the dying declaration recorded by the Executive Magistrate, observing that the same was not in question and answer form and also not being exactly in the words stated by the deceased, but held that the Trial Court erred in not acting upon the evidence of the dying declaration. It further observed in the same judgment that the dying declarations by themselves were sufficient to hold the accused guilty. As such, the High Court had rightly interfered with the appeal against acquittal. With the said observation, the appeal preferred by the accused was dismissed.
[b] In the case of State of Rajasthan Vs. Bhup Singh reported in (1997) 10 Supreme Court Cases 675, where in the process of recording of dying declaration, the deceased was said to be answering questions in Bagri language while Magistrate recording it in Hindi and answers were also recorded not in the form of question and answers, but in a narrative form, the Hon'ble Apex Court at paragraph 10 of its judgment, was pleased to observe as below:Crl.A.No.100358/2017
40
"10. Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not upset either the admissibility of the statement or its reliability, unless there are other reasons to doubt the truth of it."
[c] In Mohd. Hoshan, A.P. and another Vs. State of A.P. reported in (2002) 7 Supreme Court Cases 414, while assessing an alleged dying declaration said to have been recorded in English language, when in fact the injured was said to have given a statement in Urdu language, the Hon'ble Apex Court was pleased to hold that, where the statement was recorded and signed by the Magistrate, endorsement was made thereon by the Doctor that the deceased made the statement in a fit state of mind, and the deceased put her thumb impression on her declaration which was made in Urdu and recorded in English and thereafter explained in Hindi to the deceased, the High Court was justified in holding the said dying declaration to be reliable. Crl.A.No.100358/2017 41
[d] In the case of Amarsingh Munnasingh Suryawanshi Vs. Vs. State of Maharashtra reported in (2007) 15 Supreme Court Cases 455, wherein the question of reliability of dying declaration was involved, since the statement of deceased was recorded in Marathi language although the mother tongue of the deceased was Hindi, observing that the deceased knew both Hindi as well as Marathi, the Hon'ble Apex Court held that the same would not make any difference as the deceased knew both languages, viz. Hindi being her mother tongue and Marathi being the mother tongue of her husband.
38. In the instant case, it has to be noticed that it is nobody's case that the Taluka Executive Magistrate did not record the statement of the injured Naushad by himself and that the same was on oration of any Police Officer. But the only factor is, PW-13, at one place in his evidence, has admitted a suggestion as true that, he has not used the specific words or language which was spoken by the injured victim. However, except such a stray statement, nothing was brought in the cross- examination of PW-13 from the accused's side as to in which language the injured victim had given her statement to PW-13 and which were the words that had been substituted or replaced, Crl.A.No.100358/2017 42 if any, by PW-13. It is so because, PW-6 also in his evidence stated that he too has recorded the statement of the very same injured Naushad after the Taluka Executive Magistrate recorded her statement. The said statement recorded by PW-6 is at Ex.P- 13 and it is also in Kannada language just like the dying declaration recorded by the Taluka Executive Magistrate at Ex.P-
28. It is nobody's case that the deceased Naushad was not knowing Kannada language which is also a regional language of the place where she was residing. As such, merely because PW- 13, at one place, has admitted that he has not used the specific words or language which was spoken by the injured victim, the entire dying declaration at Ex.P-28 cannot loose its validity or cannot be suspected, that too, when even the accused also has not contended that the deceased Naushad had given any different statement in a different language than the one which is recorded at Ex.P-28. Therefore, the argument of the learned counsel for the respondent/accused that Ex.P-28 creates doubt in believing it, is not acceptable, on the other hand, the said document since has withstood the thorough cross-examination made upon it from the accused's side, inspires confidence to believe the same.
Crl.A.No.100358/201743
39. The evidence of PW-6 that he sent a requisition to PW-13 -Taluka Executive Magistrate, requesting him to record the dying declaration of injured Naushad and the evidence of PW-13 that, he received such a requisition from PW-6 and thereafter proceeded to record the statement of injured Naushad would go to show that, it is based upon the requisition made to PW-13, he proceeded to the Hospital to record the statement of injured Naushad. Further, the evidence of PW-6, PW-13 and PW-15 that, upon the request of PW-6 and PW-13, Dr. Sanjay Karpoor (PW-15) examined injured Naushad before her statement was recorded by PW-13 and confirmed that the injured Naushad was in a fit condition to give her statement, would further go to show that the injured Naushad was in a fit condition to give her statement. In the said circumstance, merely because PW-9 and PW-10 stated that, when they visited injured Naushad in the Hospital, she did not speak to them, it does not mean that the injured Naushad was not in a fit condition to speak. The medical evidence of PW-15 Doctor that, as at the time of giving her statement, injured Naushad was in a fit condition to speak and further evidence of PW-13 that, by putting some general questions, he ascertained that the patient Crl.A.No.100358/2017 44 was conscious and was able to understand the questions put to her, would clearly prove that the injured Naushad was in a fit condition to give her statement, after understanding the questions put to her. Thus, there is no reason to disbelieve the statement at Ex.P-28, which is the dying declaration of the deceased Naushad.
In the said dying declaration at Ex.P-28, the deceased has clearly stated that, it was the accused and accused alone, who was the cause for her then condition of sustaining burns. She has clearly stated that both accused and herself had illicit relationship since about nine months and they were living together in a house at Yaragatti. Suspecting her character and fidelity, the accused, on the night of 07-09-2014, at about 9:30 p.m., abused her in filthy language and pouring kerosene upon her, lit fire to it, as such, she has sustained burn injuries. In addition to stating so, she has also shown the injuries sustained by her to PW-13. Therefore, there are no reasons to disbelieve the dying declaration of the deceased Naushad given before PW-13 at Ex.P-28.
40. Apart from the injured Naushad giving her dying declaration before PW-13 as per Ex.P-28, she is also shown to Crl.A.No.100358/2017 45 have given one more statement to PW-6 - PSI, which statement of deceased Naushad was registered as first information cum complaint by the complainant Police. The said statement which is at Ex.P-13 is recorded by PW-6, as a Police Officer. The said witness (PW-6) also stated that before recording her statement, he had already got ascertained her medical fitness to give statement, by getting her examined through the duty doctor, i.e. PW-15- Dr. Sanjay Karpoor. An endorsement to that effect can be seen at Ex.P-12(b). The said endorsement does not merely say that the patient was conscious and oriented to time, place and person, but also mentions that the patient was responding to verbal commands. It further depicts her other medical conditions like PR-88 bpm, CVS-S1 & S2 (+) and R1 - B/l NUBs. It is observing these status, the Doctor (PW-15) has certified that the patient was fit to give her statement. It is only thereafter, PW-6 has proceeded to record the statement of the injured Naushad (complainant). Even in the said statement which is at Ex.P-13 also, the injured Naushad had made similar statement which she had made before PW-13- Taluka Executive Magistrate in Ex.P-28. She has specifically and categorically stated about herself and the accused living together in a live-in Crl.A.No.100358/2017 46 relationship and also having established illicit relationship between them. She further stated that, on 07-09-2014, at about 9:30 p.m., the accused having come home after consuming liquor, had abused her and suspected her character and pouring kerosene upon her with an intention to kill her, put fire to it. Both in her statement by way of dying declaration at Ex.P-28 and also her statement in Ex.P-13, she has also stated that she was shifted to Hospital in an ambulance by the neighbours. No doubt those neighbours who were examined as PWs.1, 3, 4 and 5 have not supported the case of the prosecution in that regard, however, merely because the neighbours have turned hostile, the statement of the injured victim, both at Ex.P-13 and Ex.P-28 which inspires confidence to believe in them, cannot be doubted. It also cannot be ignored of the fact that though PW-1, PW-3, PW-4 and PW-5 have expressed their ignorance about the accused living with the deceased, however, PW-2 who is none else than the neighbour of the deceased and also the wife of PW-1 has clearly and specifically stated that, she knows both accused and deceased Naushad and that the deceased was living in the house of CW-8 and accused was also living with her. The said witness was not cross-examined from the accused's side. Crl.A.No.100358/2017 47 Therefore, the evidence of PW-2 that the accused and deceased were living together corroborates the statement of the deceased Naushad made before the Taluka Executive Magistrate as per Ex.P-28 and also made before the Police Officer (PW-6) as per Ex.P-13. Thus, irrespective of the non-supporting of the prosecution case by several of the prosecution witnesses, there is powerful and strong evidence in the form of statements of deceased Naushad which are at Ex.P-13 and Ex.P-28.
41. The said aspect was not properly analysed and appreciated by the Trial Court. Merely because some of the prosecution witnesses pleaded their ignorance about the manner of occurrence of the alleged incident, the learned Sessions Judge proceeded to suspect the statement of the injured Naushad at Ex.P-13. Giving a reason that the Taluka Executive Magistrate (PW-13) has admitted a suggestion that the dying declaration of the deceased was not recorded in the language and words used by her, it proceeded to doubt the dying declaration at Ex.P-28. However, as analysed above, and in the light of the observations made by the Hon'ble Apex Court in the cases which are referred to above, the said analysis made by the learned Sessions Judge cannot be called as a sound reasoning, as such, Crl.A.No.100358/2017 48 is not acceptable. On the other hand, it has to be necessarily held that, the prosecution has proved that the deceased Naushad has given her statements as per Ex.P-13 and Ex.P-28 before PW-6 and PW-13 respectively and those two statements among which Ex.P-28 is the dying declaration recorded by the Taluka Executive Magistrate in accordance with the settled principles of law, cannot be doubted or suspected.
42. The evidence of PW-11 - Dr. Ashok Kumar Shetty shows that, he conducted autopsy on the body of the deceased and has noticed superficial to deep burns over whole body, sparing anterior aspect of both lower limbs and lower back and buttocks. Stating that all injuries were anti-mortem in nature, the Doctor opined that the death of the deceased Naushad was due to septicemia, as a result of 65% to 70% burn sustained. He got marked Post-Mortem Examination (PME) report given by him at Ex.P-23. He stated that the burn injuries suffered were sufficient to cause the death of deceased Naushad. Though he admitted a suggestion in his cross-examination that such burn injuries could be caused accidentally also, but except making such suggestion to the Doctor, no effort was made from the accused's side to show that the burns sustained by the deceased Crl.A.No.100358/2017 49 was caused accidentally. On the other hand, as observed above, the deceased herself, both in her dying declaration before the Taluka Executive Magistrate (PW-13) as well in her statement before Police Officer (PW-6), has uniformly stated that the accused poured kerosene upon her and lit fire to it. As such, the possibility of any accidental catching of fire is over-ruled.
43. The statement of the deceased that she was poured with kerosene before litting fire, gains support in the evidence of PW-12 - Dr. Savitri Prabhappa Bendigeri, who was working as the Chief Medical officer in Community Health Centre, Yaragatti at the relevant point of time. The said witness has stated that when the injured Naushad was brought to the Hospital on 07-09-2014, at 10:00 p.m., she (patient) was smelling of kerosene. She further stated that she (injured Naushad) was conscious and talking and was well oriented. The Doctor has also stated that the pulse rate of the injured was 92, Blood Pressure was 124/78, respiration was normal and the general condition was fair. Thus, apart from showing that even at that time also, injured Naushad though had sustained burns, was still well oriented, conscious and talking, not Crl.A.No.100358/2017 50 only corroborates the statement of deceased in her dying declaration at Ex.P-28 and the statement at Ex.P-13 that accused poured kerosene upon her, but also further confirms that, the evidence of the duty Doctor (PW-15) that injured Naushad was in a fit condition to give her statement when Taluka Executive Magistrate recorded her dying declaration, was not an erroneous medical opinion and that the injured appeared to be stable and well oriented for most part of her treatment period in the Hospital.
44. PW-12 - Dr. Savitri Prabhappa Bendigeri also examined the accused who was also brought to her along with the injured Naushad. According to PW-12, even accused Santosh Basayya Yenagimath was also smelling of kerosene. He too was conscious and well oriented with normal pulse rate, blood pressure and respiration. According to PW-12, she noticed the following injuries upon the accused:
"1. Face right side full burnt with blebs, chin burnt with blebs.
2. Front of chest burnt, left side cheek burnt.
3. Right and left palms both sides burnt and skin peeling and nails burnt.
4. Right arm and fore arm ventral side burnt. Crl.A.No.100358/2017 51
5. Left arm and fore arm front side burnt"
The very same witness (PW-12) in her cross-examination from the accused's side, though admitted a suggestion that, if fire caused due to accident, such burns found on the injured could happen, but also stated that the injuries found on the hands of the accused can be caused if a person who has suffered burns catches hold of another person. To a Court question, the very same witness has also answered stating that, if kerosene is poured on any person and if kerosene is present in the hands of that person who pours the kerosene, such injuries can be caused. This opinion of the Doctor strengthens the statement of the deceased that, the moment the accused put fire to her after pouring kerosene, she, with an intention to get rescued, caught hold of his hands, as such, the accused too had sustained burns.
45. PW-14 - Ratansingh Patel, who was the Casualty Medical Officer in BIMS Hospital at Belagavi, at the relevant point of time, has stated that, on 08-09-2014, he has examined both the accused and the deceased. He has also noticed burns upon both of them and has issued Wound Certificate, case summary sheet and discharge card, which he has identified at Ex.P-29, Crl.A.No.100358/2017 52 Ex.P-30 and Ex.P-31 respectively. He has also stated that the accused had suffered superficial to deep burns over face, neck, and sterile region and both upper limbs. He also stated that both patients were drowsy, but they were able to speak and from them, he ascertained that they sustained burn injuries at home. The said injuries of burns found on the accused was attempted to be explained by the accused in his statement under Section 313 of the Code of Criminal Procedure, 1973, (hereinafter for brevity referred to as "the Cr.P.C."), as the ones caused when he is said to have attempted to put off the fire found on the body of the deceased Naushad and attempted to rescue her. However, he has not explained as to how in his alleged attempt, he can sustain so many injuries on different parts of his body, that too, on the front side of his body including his face, chest, right and left palm, left arm on the front side. On the contrary, Ex.P-13, which is the statement given by the deceased before PW-6 would go to show that, she has stated before PW-6 that when she was set ablaze by the accused, she sustained burns on her chin and chest portion and immediately she embraced the accused, as such, he also sustained burns to his hands and face. The said explanation given by none else than the deceased Naushad Crl.A.No.100358/2017 53 proves to be more probable. This is also for the reason that, a person who is generally in such a situation, even if it is assumed that he has attempted to rescue the lady under fire, would avoid exposing himself from sustaining burns, that too, on his face, chest, arms, etc. Whether such a rescuer pours water or covers the person amidst fire with any blanket, still, these kind of injuries which are caused on the person of the accused generally would not occur. On the other hand, if the lady under fire embraces the other person firmly, then, these kind of injuries are likely to occur on the person of the rescuer. Therefore, the statement of the deceased at Ex.P-13 that the accused also sustained injuries since she embraced him while under fire, is more nearer to the truth and as the only possibility as to how the accused also had sustained injuries in the incident.
46. The defence of the accused was initially a general denial including taking the contention that the deceased was a stranger to him. However, in his statement under Section 313 of the Cr.P.C., as observed above, he took a contention that he being a driver of a Car, was coming in front of the house of the deceased on the date of the incident at about 9:30 p.m. and after seeing a gathering in front of the house of the deceased Crl.A.No.100358/2017 54 and coming to know from the people that one Ms. Naushad has caught fire, he went inside and saw that Naushad was in the flames of the fire. Noticing that none from the gathering made any attempt to put off the fire, he attempted to put off the fire with his hands. His statement that there were large number of people gathered in the spot, but none of them attempted to put off the fire, is hard to believe. When there is large gathering of people including neighbours, in such a situation, at least some of them would come forward to put off the fire.
The defence taken up by the accused is also not convincing for another reason that, in his discharge card of the accused which is at Ex.P-31 and got marked by none else than the treating Doctor, the history in brief is shown as "sustaining accidentally burns due to stove burst while making the tea", which means, before the Doctor, a separate story is given as stove burst while making tea and in his statement under Section 313 of the Cr.P.C., he has come up with a different story, without noticing that before the Doctor, a different version had already been given. Probably it may also be for the reason that, if the alleged bursting of the stove is continued as his defence, then, the non-finding and seizure of the alleged bursted stove from the spot would go Crl.A.No.100358/2017 55 against him, so also, it amounts to acceptance of proof that, at that time, he was residing in the house of the deceased. Therefore, as an after thought, the accused has come up with a different defence of the alleged passerby as a Car driver in front of the house of the accused at the time of the accident, as such, the defence of the accused would fail to imbibe any doubt in the case of the prosecution, even a slightest doubt.
47. The evidence of the Police witnesses from PW-16 and PW-19 corroborates the case of the prosecution evidence of PW-18 that, based upon the complaint statement produced before him by PW-6, who had recorded it in the Hospital, he registered a complaint in their Station and submitted FIR to the Court for the offence punishable under Section 307 of the IPC, supports the evidence of PW-6 that he recorded the statement of injured Naushad in the Hospital. The evidence of the Investigating Officer would further go to show that, he has conducted the investigation in the matter and coming to the conclusion that it was the accused and accused alone who was the cause for the death of the deceased Naushad, has filed charge sheet, has been corroborated by the evidence of Crl.A.No.100358/2017 56 deceased Naushad, solely in the form of dying declaration and medical evidence.
48. Our Hon'ble Apex Court in the case of State of Uttar Pradesh Vs. Veerpal and another reported in 2022 SCC OnLine SC 129, while appreciating the evidentiary value of dying declaration under Section 32 (1) of the Evidence Act, has reiterated the principles laid down by it in the case of Khushal Rao Vs. State of Bombay [AIR 1958 SUPREME COURT 22] as to the circumstances under which a dying declaration may be accepted, without corroboration, in the following lines:
"(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as Crl.A.No.100358/2017 57 practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
The dying declaration at Ex.P-28, in the instant case, which is coupled with the statement of the deceased at Ex.P-13, which was recorded by PW-6, answers all the requirements or fulfils the principles reiterated in Veerpal's case (supra).
49. Lastly, the submission of the learned counsel for the respondent/accused that, the accused tried to extinguish the fire and in the said process, he sustained the injuries, therefore, it cannot be said that the accused committed the offence Crl.A.No.100358/2017 58 punishable under Section 302 of the IPC, is also not acceptable, since it is found out from the analysis made above that, the accused has not attempted to put-off the fire but, it was himself who poured kerosene from the Can at MO-3 upon the dress nighty worn by the deceased Naushad at that time and lit fire to it using a match stick from the match box at MO-4, is further supported by the FSL report at Ex.P-40, which has observed that the said dress material (nighty), the kerosene Can and the ash of burnt nighty have all responded positive for the presence of kerosene.
50. In a similar circumstance, the Hon'ble Apex Court in the case of Nagabhushan Vs. State of Karnataka (supra), has held in para-12 of its judgment that, a similar act of the accused pouring kerosene on the deceased and putting fire to it had come out in the dying declaration at Ex.P-5 before it, has made the act of the accused falling under clause Fourthly of Section 300 of the IPC.
51. However, the Trial Court, without analysing the evidence placed before it in detail, opined that the non- supporting of the case of the prosecution by the neighbours of the house where the incident took place and more particularly, Crl.A.No.100358/2017 59 the single sentence admission made by PW-13 - Taluka Executive Magistrate that the statement recorded at Ex.P-28 was not in the language and the words used by the deceased, has doubted the case of the prosecution and gave the benefit of the said doubt to the accused, which resulted in the acquittal of the accused from the alleged offences. Since the said reasoning given by the learned Sessions Judge's Court now proves to be an erroneous one, and since the prosecution has proved its case beyond all reasonable doubts, the said judgment of acquittal deserves to be set aside and the accused deserves to be convicted for the offences punishable under Sections 302 and 504 of the IPC. As such, the impugned judgment under appeal warrants interference at the hands of this Court.
Accordingly, we proceed to pass the following:
ORDER [i] The Criminal Appeal is allowed;
[ii] The judgment of acquittal dated 21-04-2017 passed in Sessions Case No.75/2015, by the Court of the learned Principal Sessions Judge at Belagavi, is set aside;
[iii] The respondent/accused - Sri. Santosh Basayya Yenagimath, Age: 28 years, Occ: RMP Doctor, Crl.A.No.100358/2017 60 R/o. Hirekoppa, Now residing at Yaragatti, Tq: Saundatti, Dist: Belagavi, is found guilty of the offences punishable under Sections 302 and 504 of the Indian Penal Code, 1860.
The matter is passed over to hear on sentence.
ORDER ON SENTENCE Heard the learned counsel for the respondent/accused and learned Additional State Public Prosecutor for the appellant - State, on sentence.
Learned Additional State Public Prosecutor for the appellant-State submitted that, since the accused has committed a heinous offence, the maximum punishment awardable under Section 302 of the Indian Penal Code, 1860, be awarded to him.
Learned counsel for the respondent/accused, in his argument submitted that, the accused is of young age and a married person with family, as such, a lenient view be taken.
It is the sentencing policy that the punishment imposed should not be either exorbitant or for name-sake for the proven guilt. It must be proportionate to the guilt for which the accused is found guilty of.Crl.A.No.100358/2017
61
Though Section 302 of the Indian Penal Code, 1860 prescribes the punishment of death or imprisonment for life, but the present case is not one of the rarest of rare cases to be punished with death. As such, considering the alleged mitigating factors and the circumstances of the case, we proceed to order the following sentence upon the accused.
[1] For the offence punishable under Section
302 of the Indian Penal Code, 1860, the
respondent/accused - Sri Santosh Basayya
Yenagimath, Age: 28 years, Occ: RMP Doctor,
R/o. Hirekoppa, Now residing at Yaragatti, Tq:
Saundatti, Dist: Belagavi, is sentenced to undergo
Rigorous Imprisonment for life and shall also be liable to pay fine of `20,000/- (Rupees Twenty Thousand Only), in default of payment of fine, he shall undergo simple imprisonment for a period of six months;
[2] For the offence punishable under Section 504 of the Indian Penal Code, 1860, the accused -
Sri. Santosh Basayya Yenagimath, Age: 28 years, Occ: RMP Doctor, R/o. Hirekoppa, Now residing at Crl.A.No.100358/2017 62 Yaragatti, Tq: Saundatti, Dist: Belagavi, shall undergo Rigorous Imprisonment for a period of six months.
Both the sentences shall run concurrently.
[3] The Material Objects at MO-1 to MO-4 which are shown to be worthless are ordered to be destroyed only after the appeal period is over and if no appeal is preferred within the said period.
[4] The accused is entitled for a free copy of this judgment immediately.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the learned Sessions Judge's Court, forthwith, for doing the needful in the matter in securing the accused for serving the sentence and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE BMV*