Karnataka High Court
The State Of Karnataka vs S Nagaratna on 29 August, 2012
Author: Dilip B. Bhosale
Bench: Dilip B.Bhosale, S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF AUGUST 2012
PRESENT
THE HON'BLE Mr. JUSTICE DILIP. B. BHOSALE
AND
THE HON'BLE Mr. JUSTICE S.N.SATYANARAYANA
Criminal Appeal No. 384 of 2006
Between:
The State of Karnataka,
By Maddur Police.
...Appellant
(By Sri. N.S.Sampangi Ramaiah, HCGP)
And:
S.Nagaratna,
S/o. Late K.Shivanna,
Age: 40 years,
R/o. V.V.Nagar,
5th Cross, Maddur Town.
...Respondent
(By Sri. Rajendra Prasad, for Sri.L.Sudarshan, Advocate)
******
This Crl. A. is filed Under Section 378(1) & (3) of Cr.P.C by
the State P.P. for the State praying that this Hon'ble Court may be
pleased to grant leave to file an appeal against the judgment dated
15/10/2005 passed by Sessions Judge, FTC-I, Mandya, in
2
S.C.No.210/2002, acquitting the respondent/accused for the
offence P/U/S. 302 of IPC.
This appeal coming on for Hearing, this day, the Court
delivered the following:
ORAL JUDGMENT ( Dilip B. Bhosale J.)
:JUDGMENT:
This appeal by the State is directed against the judgment and order dated 15th October 2005 rendered by the Sessions Judge, Fast Track Court-I at Mandya, in S.C.No.210/2002, acquitting the sole accused of the offence punishable under section 302 of I.P.C.
2. The prosecution case, in brief, is that the deceased Nagaraju had married Geetha @ Bhargavi, the daughter of the respondent- accused. It is alleged that Geetha was subjected to harassment and cruelty by the deceased, his father, mother and sisters, and as a result thereof she committed suicide. After her death, the case was registered against the deceased and other members in the family under sections 498A and 304B of I.P.C. That case was pending till the incident in the present case occurred on 14.8.2002. In the 3 course of investigation in that case, it revealed that Geetha had no grudge/grievance against her husband (i.e. the deceased in the present case) and she had written on her hand that her husband was God and she held other members of the family liable for suicide. In view there of, according to the prosecution, the accused wanted the deceased to marry her second daughter, to which, he was not agreeable.
Just a day before the occurrence, the deceased was called by the accused at Maddur. The deceased was a resident of Bangalore. He went to Maddur on 14.8.2002 and stayed with the accused. There, after taking meals, the deceased was laying and watching T.V. At 11.00 p.m. it is alleged that the accused poured boiling oil on the person of the deceased. He sustained burn injuries on his chest, face, neck, right shoulder and right arm. He cried and started running towards the hospital. It has also come on record that the accused, her son and daughter tried to chase him. Thereafter, he reached the hospital at 11.15 p.m. on 14.8.2002. The Doctor, (PW9) admitted and treated him. He 4 also took down the history given by the deceased regarding the injuries sustained by him. The deceased had allegedly told the Doctor that his mother-in-law, in her house, poured boiling oil on his person. That was reduced in writing by the Doctor in the MLC Register at page 48 and 49 (Ex.P8) The Doctor also recorded in the register that the deceased was brought to the hospital by Head Constable No.49.
Next day, in the morning at 10.15 a.m. the PSI (PW22) went to the hospital and with the help of HC No.49 recorded an FIR (Ex.P11). After recording the FIR, an endorsement was obtained from the doctor (PW13) on the statement recorded by the Police constable 49 to the effect that it was recorded in his presence. He also signed after making such endorsement at Ex.P11(a). On the basis of the statement of the deceased (Ex.P11) an offence was registered and the investigation was set in motion.
3. During the investigation, the Investigating officer recorded statements of several persons. Out of which, 25 were examined as witnesses in the case. The witnesses 5 examined before the Court consist of tenants of the accused (PW1 and PW23), relatives of the deceased/accused namely brother of the deceased (PW2), the daughter of the accused (PW4), father (PW5) and mother (PW6) of the deceased, father of the accused (PW12) and son of the accused (PW17). All these witnesses, however, turned hostile, except the brother and the elder sister of deceased (PW2 and PW3). The prosecution also examined 3 Doctors, Prakash Angadi (PW9), K.H. Manjunath (PW10) and Dr. Siddegowda (PW13). Rest of the witnesses are police personnel and panchas. The prosecution also placed on record the complaint/dying declaration and three incriminating articles, namely, MO.2-Mat, MO.3-Bedsheet and MO.4-Alluminium Frying pan.
4. The trial Court after considering the entire evidence on record seems to have given benefit of doubt to the accused holding that the offence has not been proved beyond all reasonable doubt. The trial Court noticed several lacunas/flaws in the investigation for acquitting the accused. 6
5. We have heard learned counsel for the parties and with their assistance gone through the entire evidence/ material on record. Before we proceed further, we would like to make a reference to the principles which were carved out in State by Kudremukh Police, Vs. Nagesh and another in Criminal Appeal 518 of 2007 decided by the Division Bench on 7th June 2012, to which one of us (DBBJ) was Member, after considering the settled position of law in respect of the powers of this Court under Section 378 of Cr.P.C. The relevant paragraph reads thus:
"7. Thus, the Supreme Court, over a period of time, has laid down the following principles to be observed while exercising the power of High Court under section 378 of Cr.P.C. of appeal against acquittal:
(i) The findings of trial Court which had an advantage of seeing the witnesses and hearing their evidence, can be reversed only for very substantial and compelling reasons; good and sufficiently cogent reasons; and for strong reasons.
(ii) The substantial and compelling reasons for reversing judgment of acquittal should not be construed as a formula which has to be rigidly applied in every case and so it is not necessary 7 that before reversing Judgment of acquittal, the High Court must necessarily categorise the findings recorded therein as perverse;
(iii) The powers of High Court in dealing with an appeal against acquittal are as wide as those which it has while dealing with an appeal against conviction. However, while dealing with an appeal against acquittal the appellate Court has to bear in mind that there is a general presumption in favour of the innocence of an accused in criminal case and that presumption is only strengthened by the acquittal;
(iv) Though the appellate Court has the same powers as the trial Court on appreciating evidence and coming to its own conclusion on questions of fact, it should not interfere with an acquittal, unless it finds that the view taken by the trial Court is unreasonable and perverse;
(v) If the view taken by the trial Court, on its appreciation of evidence, is a reasonably plausible view, the appellate Court should not disturb an acquittal merely because it thinks that another view is better or more preferable. Unless the approach made by the trial Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by it is such which could not have been possibly arrived at by any Court acting reasonably and judiciously;
(vi) If it is found that two views are possible, the one as held by the trial Court for acquitting the 8 accused, and the other which the appellate Court is inclined to take, the appellate Court should not disturb the order of acquittal made by the trial Court;
(vii) The appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed."
Keeping the aforesaid principles in view, we reexamined the evidence with the assistance of learned counsel for the parties.
6. The prosecution placed heavy reliance upon the FIR-dying declaration recorded by (PW22) and so also, the history recorded in the MLC register by the Doctor (PW9). To prove the dying declaration, the prosecution placed reliance upon the evidence of PSI (PW22), 3 Doctors and Ex.P8. We have perused the FIR/dying declaration recorded by PW22. The FIR, which is in narrative form, runs into about 4 pages and is in Kannada. Learned counsel appearing for the appellant placed english translation of the FIR before us. We have gone through the FIR. He stated right from the stage as 9 to how his marriage with Geetha was arranged, till Geetha committed suicide. He also stated about the criminal complaint lodged by the accused, in the present case, against him and other members of his family. In view there of, the deceased as well as other members of the family were arrested and were behind the bar for about three months. Then he stated that the accused started persuading him to marry her second daughter, to which, he was not agreeable. Then he stated as to how he was called to Maddur and how an attempt was made to kill him by pouring boiling oil on his person. This statement was signed by the Police constable who reduced it into writing, so also by the deceased. An endorsement of the Doctor (PW13) was also obtained to the effect that the statement was recorded in his presence. We have perused it very carefully.
Neither the endorsement nor the evidence of PSI (PW22) and/or of the Doctor (PW13) show whether the deceased, at relevant time, was in a fit state of mind to give statement. Doctor (PW13) has not indicated in the endorsement made on 10 the FIR, nor in his evidence before the Court that he had examined the patient before allowing PW22 to record his statement nor did he make an endorsement to that effect. The Doctor has not stated that the patient was in a fit state of mind all through out during recording of his statement. It is on the basis thereof, it was vehemently submitted that the FIR cannot be accepted as dying declaration and that conviction cannot be based on such statement. It was also criticized on the ground that, it was in a narrative form and not in question and answer form and further it was recorded by the PS1. It was further criticised on the ground of delay in its recording. It was also contended that no efforts whatsoever were made by the Investigating agency to record statement of the deceased through Taluka Executive Magistrate either at Maddur or in Bangalore. Admittedly, the deceased was shifted to Bangalore on 15.8.2002 and he died on 18.8.2002 in the evening, still no efforts were made by the prosecution to record his dying declaration by following the due procedure established by judicial pronouncements. We 11 find substance in the submission advanced by the learned counsel for the defence.
7. The manner in which the dying declaration was recorded by the PS1 (PW22) at belated stage and that too without obtaining endorsement of the doctor about his mental condition/fitness, it becomes doubtfull. It has not been accepted as truthfull/trustworthy by the Trial Court. Whether the view taken by the Court below in respect thereof is plausible and/or could be termed as perverse? are the questions which need to be considered. The case is however not based only on the FIR/ dying declaration. We find that the history, recorded by PW9 in the MLC register, was given by the patient himself. In the MLC register, it is clearly mentioned that the deceased had sustained burn injuries in the house of his mother-in-law and she was the cause for those injuries. It is true that, there is such endorsement and it was made immediately after the occurrence. The Doctor, however, in his evidence, did not state about the state of mind of the deceased when he gave the history to the Doctor. 12 Neither PW9 nor the other two Doctors, who also had occasion to examine and see the medical papers, have opined about his mental fitness, immediately after the occurrence and/or even at the time when the FIR was recorded. In the circumstances, it was submitted that the entry made in the MLC register also creates doubt. It was further submitted that the possibility of false implication in view of the criminal case, which was pending at the relevant time, against the deceased and his family members and/or the possibility of imagination also cannot be ruled out. We find substance in the submissions advanced by learned counsel for the accused. There is neither an endorsement of the doctor on the dying declaration nor the doctor has stated anything about the mental condition/fitness of the deceased. This, as has been observed, creates doubt about the dying declaration. Such an evidence cannot form the basis for conviction in an appeal against acquittal.
8. Our attention was invited to the entry in the MLC register, which shows that the deceased was taken to the 13 hospital by HC 49. How this HC came into picture is a mystery. The questions, who informed the Police.? How the constable accompanied the deceased to the hospital? remained unexplained by the prosecution. If the incident, as narrated by the deceased in the FIR/dying declaration (Ex.P11), is correct, we fail to understand as to how there was an endorsement to the effect that the police constable 49 brought the deceased to the hospital. In the FIR, the deceased did not make any reference to the police Constable
49. The prosecution chose not to examine the constable as a witness for the reasons best known to them. If he was examined, he could have thrown light on many unanswered questions.
9. The medical papers clearly show that he was taken to the hospital by police constable 49. It is on the basis of this entry, it was vehemently contended that the incident did not occur in the manner in which it was narrated by the deceased and that the prosecution is suppressing something from the Court. It has come on record that the deceased was 14 implicated in a criminal case along with his mother, father and other members in the family by the accused and to take revenge, it was submitted, the deceased falsely implicated the accused in this case. Then it was submitted that the incident did not take place at the residence of the accused, as stated by the deceased in the FIR.
10. The trial Court has considered the entire evidence in support of the dying declaration and the sequence of events in the house of the accused and pointed out the lacunas/flaws in the investigation and expressed doubt about the prosecution case. We find that the view taken by the Trial Court, on its appreciation of evidence, it reasonably plausible view and we, therefore, would not like to disturb an acquittal merely because another view is possible. We would not like to disturb the view taken by the learned judge that the offence cannot be stated to have been proved beyond all reasonable doubt. It is true that, history given by the deceased which was reduced in the MLC register creates strong doubt against the accused. The question, however is, whether 15 that by itself would be sufficient to convert the acquittal into conviction when, on the basis of the record/evidence it cannot be stated that the deceased was in a fit state of mind to make such statement. The law is now well settled that unless there is absolute assurance of guilt upon the evidence on record, the order of acquittal cannot be interfered with or disturbed. Moreover, merely because, the other view is possible, which may sound better, cannot be a ground for converting acquittal into conviction. It is difficult in the facts of the present case to base conviction solely on the history reduced in writing by PW9 in the MLC register, wherein, the name of the accused was clearly disclosed by the deceased. In view there of, we tried to find out from the other evidence whether that supports the prosecution case.
11. Strong reliance was placed by the prosecution on the panchanama of the scene of offence to contend that the incident occurred in the house of the accused at mid night. The prosecution in order to prove the Mahazar (Ex.P6) examined PW8-Chandru and PW24 Basavaraju who acted as 16 panchas. PW-8 did not support the prosecution at all and that he was declared hostile. Insofar as PW-24 is concerned, though he was not declared hostile, his evidence is cryptic. He has stated that when he was doing masonary work in neighboring house, police went there and called him and asked him name and address and obtained his signature on the document that was shown to him, namely Ex.P6. Then he states that, he saw one mat, frying pan, rug (blanket) and identified them as the same articles which were shown to him. In the cross examination, the following answer was elicited from him; " I have seen MOs 2 to 4 when the police came to the spot where I was doing masoning work". On the basis of this, it was submitted that this witnesses has not stated either in the examination -in -chief or in the cross- examination that mahazar was conducted in his presence and these articles were seized from the scene of offence. It was further submitted, this evidence shows that mahazar was already prepared and he was simply asked to sign. We do find force in these submissions. It would be advantageous to 17 reproduce the testimony of this witnesses in support of our view.
"My signature is appearing on the document now shown. The said document has already been marked as Ex.P8. Ex.P8(c) is my signature. About two years back, one day, when I was attending the masonary work of another house situated adjacent to the house of accused, police came there. After coming there they have called me and enquired my name and address and obtained my signature on the document now shown. At that time, I saw one mat, one frying pan and one rug. If I see the same I will identify. The same are MO 2 to 4. Now I have seen the same before the Court.
Cross Examination by Sri. SRP Advocate for accused:
There is no special identification mark whatsoever on MO 2 to 4 showing that the same were seized by the Police on that day. After packing and sealing those properties the sample seal was not given to me. I have seen MO 2 to 4 when the police came to the spot where I was doing masonary work."
12. The material objects 2 to 4 which were seized from the scene of offence on 15.8.2002 were sent to FSL on 17.10.2002. There was a delay of more than two months in sending these articles to the FSL. No explanation whatsoever is forthcoming, explaining the delay. In view there of, it was vehemently submitted that the possibility of tampering 18 cannot be ruled out. We did not find any explanation whatsoever either in the evidence of the witnesses or in the evidence of Investigating Officer or the police Constable who carried articles to the FSL, as to why there was a delay in carrying those articles to FSL. In view there of, the report of FSL also does not inspire confidence. It has also come on record in the spot panchanama that some marks of oil on the wall were seen. However, the Investigating officer did not take sample of the portion of the wall with and without oil. Apart from the evidence in the nature of spot panchanama, the prosecution has not brought any other material/evidence to show that the incident occurred at the time, on the date and at the place, namely, the house of the accused. In the absence there of, it would be difficult to disturb the order of acquittal passed by the Court below.
13. The evidence of other witnesses, such as, brothers, mother, sister and son and neighbourers is of no avail to the prosecution to prove the actual occurrence. Their evidence support the prosecution only in respect of the earlier events, 19 as narrated by the deceased in the FIR regarding his marriage with Geetha.
14. We are at loss to understand as to why the prosecution did not make any efforts to record dying declaration of the deceased through Taluka Execution Magistrate, though he was alive for four days. The IO ought to have arranged recording of his dying declaration either at Maddur or at Bangalore. Though there was sufficient time, no explanation is forthcoming as to why such efforts were not made. The statement (Ex.P11) which was recorded by PW22 was recorded as an FIR and not as dying declaration. It was treated as dying declaration in view of the death of the deceased. It is in narrative form. The question was, therefore, raised as to how could he state so many things in detail when he was in severe pain. Moreover, it was recorded without there being any certificate of the Doctor about mental condition/fitness of the deceased. It is true that, even in the absence of medical certificate, the dying declaration can be accepted, provided, it inspires confidence and is also supported by the other evidence. In 20 any case, the view taken by the learned Judge cannot be stated to be perverse and that it is based on the material on record and is also plausible, which, in our opinion deserves no interference by this Court in the appeal against acquittal. We are inclined to give benefit of doubt to the accused. Hence, the judgment of the trial Court acquitting the accused is confirmed. The appeal is dismissed. The bail bond stands cancelled.
SD/-
JUDGE SD/-
JUDGE tsn*