Karnataka High Court
Laxman Bharmappa @ Bharmaraddi ... vs The State Of Karnataka on 2 September, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.100243/2017
BETWEEN:
LAXMAN BHARMAPPA
@ BHARMARADDI TERINAGADDI
AGE: 26 YEARS, OCC: COOLIE,
R/O: CHINCHALI,
TQ AND DIST :GADAG.
.....APPELLANT
(BY SRI. AHMED ALI RAHIMANSHAH, ADV.)
AND:
THE STATE OF KARNATAKA
BY ITS C.P.I.,
GADAG RURAL POLICE STATION,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT, BENCH DHARWAD.
.....RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO CALL FOR RECORDS PERTAINING TO
S.C.NO.46 OF 2014 AND TO SET ASIDE THE JUDGMENT AND
ORDER PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, GADAG IN S.C.NO.46 OF 2014 DATED 28.06.2017 AND
CONSEQUENTLY ACQUIT THE ACCUSED BY ALLOWING THIS
APPEAL.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.08.2020, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
V. SRISHANANDA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The accused in S.C.No.46/2014 on the file of the Principal District and Sessions Judge, Gadag (hereinafter referred to as "Trial Court") has questioned the validity of the judgment dated 28.06.2017 wherein he has been convicted for the offences punishable under sections 498-A and 302 of IPC.
2. The brief facts, which are necessary for disposal of the appeal are as under:
On 24.06.2014, Smt. Pushpa Teringaddi gave oral complaint which was reduced in writing (Ex.P.4) wherein she has alleged that she is wife of accused and after marriage, she went to Bangalore with her husband who was working in a factory and stayed in a room; wherein the accused was suspecting her fidelity and used to pick up quarrel with her and assault her, and she had intimated the same to her parents over telephone and they 3 pacified her with an assurance to settle the matter by holding a panchayat and directed them to return to Chinchali. It is further stated that two days earlier to the incident, they came from Bangalore to Chinchali and again accused picked up quarrel with her and assaulted her, and on 24.06.2014 at about 8.00 a.m., the accused again picked up quarrel and threatened her to take away her life and would contract another marriage. Again around 2.00 p.m. accused quarreled with her suspecting her fidelity and poured kerosene oil over her and set fire with an intention to take away her life; she screamed for help; her mother-in-law tried to put off the fire and in order to pretend that he is an innocent, the accused also tried to put off the fire. She further stated that her parents came there in a short while along with one Basavantappa Kammar and she was shifted to hospital at Mulgund and then to District Hospital Gadag and from there, for higher treatment, she was shifted to KIMS Hospital, Hubli.
The prosecution's further case is that she was shifted to Tatwadarsha Hospital, Hubli for higher 4 treatment and there she succumbed to the burn injuries on 02.07.2014 and police invoked Section 302 of IPC in already registered case, which was under Section 323, 307, 498-A and 504 of IPC.
After the death of Pushpa, Tahsildar visited and inquest mahazar was conducted by him and dead body was sent for postmortem examination. The accused was arrested on 25.06.2014 and after completion of detailed investigation, accused is charge sheeted. On receipt of the charge-sheet, the learned Magistrate took the cognizance of the offences alleged against the accused and committed the case to the Sessions Court.
On committal of the case to the Sessions Court, after securing presence of accused and after hearing the prosecution and the defence, charges were framed against the accused for the offences punishable under Section 498-A, 323, 302 and 504 of IPC; accused pleaded not guilty. As such, trial was held against the accused.5
In order to bring home the guilt of the accused, the prosecution examined 17 witnesses as P.W.1 to P.W.17 and relied on the documentary evidence which were marked vide Ex.P.1 to 16 and also got marked material objects as per M.O.1 to 7.
On conclusion of recording evidence, accused statement was recorded as per Section 313 of Cr.P.C.
Accused denied all the incriminating circumstances. He did not adduce defence evidence. After hearing the parties, the Trial Court convicted the accused for the offences punishable under Section 498-A and 302 of IPC and sentenced him to undergo two years imprisonment with fine of Rs.15,000/- with default sentence of two months simple imprisonment for the offence punishable under Section 498-A of IPC and also sentenced him to undergo imprisonment for life and to pay fine of Rs.25,000/- with default sentence of six months simple imprisonment for the offence punishable under Section 302 of IPC. It is that judgment, which is under challenge.6
3. Among the prosecution witnesses, father of the deceased is P.W.1 who filed his statement as per Ex.P.1. P.W.2-Basavantappa Ishwarappa Kammar is a panch witness to spot mahazar Ex.P.3. P.W.3- Sureshreddy Madagunaki is the panch witness to inquest mahazar marked at Ex.P.7, P.W.4-Geeta Maindur is the mother of the deceased, P.W.5-Babajan Kudurimoti is the witness in whose auto-rikshaw the deceased was taken to Mulgund Hospital, P.W.6-Prakash Dambal is the police constable, who carried the FIR to the Magistrate Court, P.W.7- Hanamappa Kallannavar is the police constable, who carried seized articles to FSL, for chemical examination; P.W.8- is PWD Engineer, who drew spot sketch-Ex.P.8, P.W.9- Halappa Nagavi is the Tahasildar, who conducted inquest mahazar as per Ex.P.7. P.W.10- Ameerhamza Sanni is the author of Ex.P4 and part investigating officer who registered the FIR vide Ex.P.9, P.W.11- Parameshwar Gurusiddappa Kavatagi is the further investigating officer, who conducted the further investigation of the case. P.W.12-Raveendra Eligar, is the doctor who recorded the statement of the injured in the hospital vide Ex.P.4. 7 P.W.13-Dr. Suneelkumar Biradar is autopsy surgeon who conducted postmortem on the dead body of the deceased, which is marked at Ex.P.12. P.W.14-Dr. Sharat Jartari is an additional witness who put his signature on Ex.P.4- complaint and Ex.P.10 on behalf of Ravindra Eligar. P.W.15-Dr. Vani N is also another additional witness and Scientific Officer, who issued Ex.P.14-FSL report and Ex.P.15- model seal. P.W.16-M.Jagadish Nayak, is the further investigating officer who conducted the investigation and after completion of investigation has filed charge-sheet against the accused.
4. The learned counsel for the appellant Sri. Ahmed Ali Rehimanshah vehemently contended that the Trial Court has grossly erred in convicting the accused for the offence under Section 302 of IPC by improper appreciation of evidence on record. He argued further that impugned judgment is based on assumptions and presumptions.
5. He further submitted that Smt. Pushpa committed suicide due to dejection in life as her first 8 marriage was also not successful. He further contended that the oral complaint of the deceased is an ingenious concoction by the police as she died in Tatwadarsha Hospital, Hubli. He further deposed that while recording the oral complaint, Dr.Eligar was not at all present but somebody else has signed on behalf of Dr.Eligar. He further argued that victim had sustained 95% burn injuries and as such she was incapable of making any oral statement. He further contended that P.W.2 in this case has turned hostile, P.W.3 is a relative and interested witness, P.W.5 the auto driver who has only shifted the victim to the hospital, did not know anything about the incident and therefore, the prosecution case suffers for want of substantial evidence and he further pointed out that no dying declaration has been recorded either in Mundgod hospital or in Gadag Hospital or in KIMS hospital or in Tatwadarsha hospital, Hubli and as such, the averments made in the oral complaint reduced into writing cannot be considered for convicting the accused and therefore, sought for allowing the appeal. 9
6. Per contra, the learned Additional State Public Prosecutor vehemently contended that whenever a maker of statement dies subsequently, the statement made by the maker can be treated as dying declaration by resorting section 32 of the Indian Evidence Act. He further argued that the averments made in the oral complaint clearly establish that it is the accused, who poured kerosene on the victim and set fire. He further points out that the prosecution has examined the doctor who has signed the complaint as P.W.17, who was a post-graduation student attached to the department of Dr.Eligar, who is examined as P.W.12 and as such, the argument put forward by the learned counsel for the appellant cannot be countenanced in law. He further argued that trial court has found that the accused is guilty of the offences alleged against him after considering the entire material on record. Thus, he supported the conviction order.
7. In view of the rival contentions, the following points would arise for consideration:
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1. Whether the appellant makes out a case that the death of the victim is on account of suicide and thus he is not liable for the offences alleged against him?
2. If so, whether the impugned judgment calls for interference?
8. We answer point No.1 and 2 in the negative for the following:
REASONS
9. Prosecution has strongly relied on the oral complaint marked at Ex.P.4. It is not in dispute that victim died on account of burn injuries on 24.06.2014 as could be seen from postmortem report marked at Ex.P.12 and final opinion marked at Ex.P.13 and cause of death is on account of septicemia as a result of burn injuries. When she was at KIMS hospital, P.W.10 visited KIMS hospital and after confirming about the mental fitness of victim, enquired the victim and the oral complaint (Ex.P.4) given by the victim was reduced into writing. 11
10. P.W.1 is the father of the deceased. He has deposed that the deceased is his daughter and accused is his son-in-law. He specifically deposed that about four months earlier to the date of the incident, the deceased was given marriage to the accused and it was the second marriage of the deceased. After marriage, the deceased went along with the accused to his house at Chinchali and stayed there for fifteen days. In the said house, accused, deceased and the mother of the accused were residing. Thereafter, the accused along with the deceased proceeded to Bangalore as there was difference of opinion between the accused and his brother. He further deposed that in order to establish a house at Bangalore, he helped the accused by providing ration, Rs.1,000/- cash to accused, and also cash of Rs.2,000/- and necessary clothes to the deceased. He further deposed that the accused was carrying out building construction work and a room was provided for his stay. It is his case that for about 15 days the accused and deceased lived happily and thereafter the accused started ill-treating the deceased under the influence of liquor and the same was intimated to him by 12 the deceased. It is also deposed by him that the accused used to suspect the chastity of the deceased and as such, he had told the accused to bring her back to Chinchali and he would convene panchayat to sort out the differences. As such, the accused started from Bangalore on 22.06.2014 and reached Chinchali on 23.06.2014 and stayed in his uncle's house. He also received information that the differences would be sorted out in Chinchali village and as such, himself and his wife along with one Basavantappa Kammar-PW.2 were on the way to Chinchali next day. When they were at Laxmeshwar enroot to Chinchali, he received a call from Ningappa to reach Chinchali urgently. As such, they reached Chinchali around 2.00 p.m. and found that his daughter had sustained burn injuries from trunk region to neck region.
11. He further deposed that on enquiry with his daughter, she told them that accused has poured kerosene on her and set fire around 12.00 in the noon suspecting her chastity. He further deposed that at the first instance, she was shifted to Mulgund hospital and 13 thereafter to District Hospital, Gadag, and from there to KIMS hospital, Hubli. It is his case that when they were in KIMS hospital, Mulgund police visited and enquired his daughter and the oral complaint (Ex.P.4) was reduced into writing. He further deposed that after taking two days treatment at KIMS, his daughter was shifted to Tatwadarsha hospital, Hubli but she succumbed to the burn injuries on 02.07.2014 at about 9.00 a.m.
12. He further deposed about inquest mahazar conducted by Tahsildar, Postmortem examination by autopsy surgeon and Spot Mahazar by police and also seizure of M.O.1 to 7. According to him, accused in order to commit the murder of his daughter has poured kerosene oil and set fire suspecting her chastity.
13. In his cross-examination, it is elicited that the first marriage of his daughter got dissolved on account of mental ill-health of her first husband. He denied that the marriage of deceased was contracted with accused by suppressing the said fact. He denied the suggestion that the accused came to know about the first marriage of the 14 deceased later from the relatives of her first husband and as such, the deceased was depressed. He denies that on account of the mental agony, his daughter tried to commit suicide. He has answered that about 95% of the body of his daughter was burnt. He further denied that the deceased was not in good mental condition to give the statement. He denied that the fingers of his daughter in both hands were completely burnt. He admits that P.W.10/Investingating Officer is from his village and is acquainted with him. He denied that despite full knowledge that his daughter has committed suicide, in active collusion with P.W.10, Ex.P.4 has been concocted.
14. An independent witness, Basavantappa is examined as P.W.2. He had accompanied P.W.1/complainant at his request to Chinchali. On visiting the spot of the incident, he has seen injured- Pushpa and on enquiry, she stated about the accused pouring kerosene oil on her and lit the fire. He is also witness to spot mahazar marked at Ex.P.3. In his cross- examination, he has answered that by the time he visited 15 the place of incident, fire had been extinguished and Pushpa stated at KIMS Hospital, Hubli about the accused pouring kerosene on her and litting fire. He admits that spot mahazar was drafted and he has signed at the request of the police.
15. P.W.3 is one of the witnesses to inquest mahazar vide Ex.P.7. His evidence is formal in nature.
16. Mother of the deceased is P.W.4. She deposed in line with the examination-in-chief of P.W.1. In her cross-examination, she admits that before the marriage with accused, Pushpa was married to Hemareddy. She has answered that her first husband was mentally ill and as such, Pushpa divorced her first husband. She denies the suggestion that the first marriage of Pushpa was suppressed when Pushpa was married to accused. She denies that Pushpa committed suicide, and a false case has been foisted against the accused and she has deposed falsely against him.
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17. The auto driver, who shifted Pushpa to hospital is examined as P.W.5 and his evidence is formal in nature.
18. The FIR carrier is P.W.6. P.W.7 is the police constable who carried the material objects to Forensic Science Laboratory. P.W.8 is the PWD engineer, who prepared sketch vide Ex.P.8. Their evidence is also formal in nature.
19. The Tahsildar, who conducted the inquest mahazar-Ex.P7, is examined as P.W.9. He deposed that at the request of Mulgund Police, he visited Tatwadarsha Hospital, Hubli at about 2.45 p.m. on 02.07.2014 and examined the dead body of the deceased and conducted inquest mahazar and also recorded the statements of the parents of Pushpa. In his cross-examination, he denied that Ex.P.7 was prepared by police and he has only signed Ex.P.7 without conducting any inquest proceedings.
20. The ASI, who recorded and reduced the oral complaint into writing vide Ex.P.4 is P.W.10. He deposed that on 24.06.2014, he visited the KIMS Hospital, Hubli 17 around 5 p.m. and contacted the doctor who was treating Pushpa about her mental fitness. He identified the request letter as Ex.P.10 and he also sent a request letter to Tahsildar for his presence. It is his say that Tahsildar was engaged in election work and therefore, Tahsildar intimated over telephone that he can proceed to record the statement of the injured in the presence of the doctor. He reduced into writing oral complaint given by Pushpa vide Ex.P.4 and returned to the police station, and based on Ex.P.4, he registered a case in Crime No.43/14 and FIR- Ex.P9 was sent to the concerned.
21. He further deposed that on receipt of email communication on 02.07.2014 that Pushpa died in Tatwadarsha hospital he made a request to Jurisdictional Magistrate to incorporate section 302 of IPC in the case vide Ex.P.11 and he requested Tahsildar to conduct inquest.
22. In his cross-examination, he denied that P.W.1 had contacted him on 24.06.2014 before proceeding to KIMS Hospital. He denied that he has deposed falsely to 18 help P.W.1 as they are of the same village by concocting Ex.P.4.
23. P.W.11 is the PSI of Mulgund Police Station at the time of incident. He deposed that he received MLC report from Vidyanagar Police Station of Hubli in Crime No.43/2014, he visited the place of incident and conducted spot mahazar vide Ex.P.3 and seized M.O.1 to 7 from the spot.
24. He further deposed that on 25.06.2014, he arrested the accused from Chinchali and on 26.06.2014 he sent the seized articles to Forensic Science Laboratory for examination and handed over the further investigation to P.W.10. He denies that on 24.06.2014, even before the receipt of MLC, P.W.1 had brought the injured to the police station. He admits that P.W.10 and P.W.1 are of the same village. He denies having concocted spot mahazar and M.O.1 to 7.
25. P.W.12 is Dr.Eligar, the doctor who could not identify the signature in Ex.P.4.
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26. P.W.13 is autopsy surgeon who conducted post mortem examination and issued a report vide Ex.P.12. He has given final opinion vide Ex.P.13. According to him, the cause of death is septicemia on account of burn injuries. In his cross-examination, he denies that he has signed the postmortem examination report as requested by Tahsildar. He admits that as per case sheet, septicemia set in on from 28.04.2014 and doctor Eligar and others have treated the patient.
27. The scientific officer Dr. Vani is examined as P.W.15. She deposed that on receipt of M.O.1 to 7 she examined the material objects and given report vide Ex.P.14. In her cross-examination, she denies having given a false report.
28. Further, investigation officer, Jagadish Nayak, is examined as P.W.16, who deposed about recording of statement of charge sheet witnesses and collecting necessary reports and filed charge sheet against accused. 20
29. The doctor who has signed Ex.P.14 as per Ex.P.4(c) for and on behalf of Dr.Eligar by name Dr.Kishor Bellari is examined as P.W.17. He deposed that on 24.06.2014, when he was in-charge of ward where Pushpa was treated, Mulgund Police visited him and enquired about the mental fitness of Pushpa. He examined Pushpa and endorsed in Ex.P.10 that Pushpa was in fit condition to give statement and he has signed for and on behalf of Dr.Eligar vide Ex.P.10(a). He also identified his signature in Ex.P.4, where he has signed "for Dr.Eligar" vide Ex.P.4(c). In his cross-examination, he admits that in 2014 he was not the CMO but he was pursuing higher education. He further answered that he was acting at the instructions of the medical officer. He further answered that on 24.06.2016 when police gave Ex.P.10, before endorsing at Ex.P.10(a), he has contacted Dr.Eligar and thereafter he has given endorsement vide Ex.P10(a). He denies having made false endorsement in Ex.P.10. He has answered that the statement is recorded at about 12.00 in the midnight.
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30. Learned counsel for the appellant sought for reappreciation of the above evidence on record and prayed for allowing the appeal.
31. On careful consideration of the entire material on record, the case of the prosecution rests on the averments found in Ex.P.4 coupled with the oral testimony of parents of the deceased to establish the charges under Section 498-A and 302 of IPC.
32. According to the prosecution, motive for the incident is accused was suspecting chastity of the deceased. On scrutiny of the materials on record, it reveals that before marrying the accused, the deceased had married one Hemareddy and that marriage got dissolved on account of mental ill-health of said Hemareddy.
33. After marriage in Devaragudda, accused and deceased lived in Chinchali for about 15 days and thereafter they went to Bangalore. Ex.P.4 reveals that after marriage, the accused and deceased stayed in Bangalore 22 in a room for about 15 days and accused was harassing the deceased suspecting her fidelity. The same was informed to the parents by deceased over telephone. P.W.1 told them to visit Chinchali for a panchayath to be convened and as such, they left Bangalore on 22.06.2014 and reached on 23.06.2014. Ex.P.4 further reveals that accused picked up quarrel again in the morning of 24.06.2014 at about 8.00 a.m. and told her that he would take away her life and contract another marriage and so saying he assaulted her. At about 2.00 p.m. on the same day accused again picked up quarrel stating that before panchayath is convened he would take away her life, and he poured kerosene on her and set fire. When she screamed for help, her mother-in-law tried to extinguish the fire and accused also pretended as he is extinguishing the fire. There is a specific averment in Ex.P.4 that in order to take away her life, accused had committed such an act and she sustained burn injuries on neck, chin, chest, both hands and upper portion of her back. Ex.P.4 also reveals that within a short while her parents (P.W.1 and P.W.4) along with Basavantappa Kammar (P.W.2) 23 came to Chinchali and with the help of Ningareddy, they shifted her to Mulgund hospital and then to Gadag Hospital and thereafter to KIMS Hospital, Hubli and later on deceased was shifted to Tatwadarsha Hospital, Hubli for higher medical care and she succumbed to the burn injuries on 02.07.2014.
34. Therefore, Sessions Court considered Ex.P.4 as dying declaration by placing its reliance on the judgment reported in 2016 AIAR (Criminal) 119, (Gulzari Lal vs. State of Haryana).
35. Whenever a complainant dies before she could be examined before the Court, the complaint can be treated as dying declaration and can be made as the basis for convicting the accused in a given case. Of course, prudence requires that the Court must look for corroboration to the averments made in the complaint as the accused will not have the chance of challenging the averments found in the complaint. In this regard, this Court in addition to the judgment relied on by Sessions Court, places its reliance on judgment of the Hon'ble Apex 24 Court in the case of Padmaben Shamalbhai Patil v. State of Gujarat, reported in (1991) 1 Supreme Court Cases 744.
Evidence Act, 1872 - Section 32 - Dying declaration
- Nature of evidence of and its admissibility - Held, can be sole basis for conviction without corroboration - Tests and rule indicated.
Evidence Act, 1872 - Section 32 - Dying declaration - Homicidal death - Statement made before doctor - Deceased sustaining 90 per cent burn injuries - on inquiries made by doctors examining the deceased in hospital, deceased revealing that accused-appellant (deceased's husband's sister) had burnt her - Deceased had opportunity to see the appellant at the time of occurrence - Doctors deposing that deceased was in a fit state of mind and was able to speak albeit with difficulty when she spoke to them though soon thereafter her condition deteriorated and she was unable to speak - Note also made by doctor in this regard in police 'yadi' - Held, testimony of the doctors about fitness of the deceased as supported by the documentary evidence cannot be discarded merely because the deceased was severely burnt and her condition was poor at the time she spoke to the doctors - Further, in absence of strained relation of deceased with appellant, possibility of false 25 involvement of the appellant cannot be accepted even assuming that her husband who was near her cot had prompted her to do so - Non recording of deceased's statement in question-answer form, in the circumstances of the case, would also not affect its probative value - Held, dying declaration acceptable and sufficient to found conviction of the appellant - Penal Code, 1860, Sections 304-B and 302 Bride burning.
36. In Babulal v. State of M.P., (2003) 12 SCC 490 Hon'ble Apex court held as under:
7. The pivotal point which was pressed into service with some amount of vehemence was acceptability of the dying declaration. There is no legal bar for the information given by the deceased to be treated as a dying declaration. This position was stated succinctly by this Court in Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : AIR 1976 SC 2199] Section 32 of the Indian Evidence Act, 1872 (in short "the Evidence Act") deals with dying declaration. A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to 26 concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. (See R. v.
Woodcock [(1789) 1 Leach 500 : 168 ER 352] .) The materials on record clearly established that the deceased was in a mentally fit condition, though battered in the physical frame. The High Court has rightly held that presence of PWs 1 and 2 did not result in any presumption of tutoring, when the FIR was recorded. Merely because there was a thumb impression on the FIR, and not the signature as stated by PW 1, that does not falsify the prosecution version. The same has been clarified by the High Court. It has to be noted that PW 16, who had scribed the FIR, stated that the contents were read over to the deceased, who had thereafter put his thumb impression. In fact the defence itself has 27 suggested to PW 1 during cross-examination that the thumb impression was taken on the paper first and thereafter the writings were inserted. In other words, there was acceptance of the fact that the thumb impression was there but writings were done later which have been denied by PW 1. We do not find any reason to discard the dying declaration only on this ground. The High Court has also found in analysing the evidence that the plea relating to antedating or antetiming the FIR is a myth. Though some of the accused persons have been acquitted by the trial court, the High Court has carefully analysed the evidence and has sifted the grain from the chaff and disengaged the truth from falsehood. Merely because some persons have not been named in the FIR and have been given the benefit of doubt, that cannot be a reason for discarding the dying declaration or the evidence of the witnesses.
8. As far as the condition of the deceased at the time of dying declaration is concerned, it has been clearly established by the eyewitnesses that the declarant was in a condition to make the dying declaration. It is to be noted that at the time of dying declaration, the presence of PW 2 has been clearly mentioned. The evidence of PWs 1, 2 and 3 was treated to be as partisan. Relationship is not a factor to wipe out the credibility of any witness' evidence. The Court in a case where relatives are witnesses has to test their version on the touchstone 28 of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. (See: Munshi Prasad v. State of Bihar [(2002) 1 SCC 351 : 2002 SCC (Cri) 175] , Hukam Singh v. State of Rajasthan [(2000) 7 SCC 490 :
2000 SCC (Cri) 1416] and Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85 : 2002 SCC (Cri) 736 : JT (2002) 3 SC 387] ) The High Court has precisely done that. The trial court had entertained a shadow of doubt merely on account of their relationship. As rightly observed by the High Court, the approach is indefensible. That being the position, the evidence of eyewitnesses which has a ring of truth deserves acceptance, which the High Court has done. Though the evidence of PW 11 was attacked on the ground of having traces of tutoring, yet his whole evidence does not get wiped out even if it is assumed, as urged, that it contains exaggerations and embellishment. PW 2 who is the mother of the deceased had reached the place first. The presence of PW 2 (mother of the deceased) has been established by ample evidence. The appeals are sans merit and deserve dismissal, which we direct.
37. In the background of the above settled legal principles, when we reappreciate material on record, we can safely equate Ex.P.4 as dying declaration and conviction can be based solely on Ex.P4. But, as a rule of 29 prudence when we look forward for the corroboration as to the contents of Ex.P4, we find that the statement given by the father of the deceased during the inquest proceedings conducted by the Tahsildar-P.W.9 in Tatwadarsha Hospital, Hubli assumes importance. Further, P.W.1 and P.W.4, who the parents of the deceased have deposed in line with the complaint averments (Ex.P.4). Testimony of PW.2, also discloses the incident as narrated in Ex.P4. PW.2 is an independent witness. Ex.P.4 is proved by the oral testimony of the scribe of Ex.P.4, who is examined as P.W.10. No doubt, PW.1 admits that PW.10 is from his village. Mere fact that PW.10 is from the same village of PW.1 ipso facto does not lead to an inference that he colluded with PW.1 to foist a false case against accused. Further PW.10 being Assistant Sub Inspector of Police, his actions are to be presumed as correct as per Section 114(e) of Indian Evidence Act. Though it is a rebuttble presumption, defence failed to rebut the same by placing any cogent evidence on record.
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38. Learned counsel for appellant argued that injured Pushpa was not in fit condition to give statement, as P.W.1 has admitted in the cross-examination that his daughter had sustained 90% to 95% of burn injuries and as such Ex.P4 is ingenious concoction by P.W.1 in active collusion with P.W.10. He points out that P.W.1 and P.W.10 are of the same village and therefore, he has helped in foisting a false case against the accused.
39. But according to the evidence of the doctor and the postmortem report, the deceased had sustained burn injuries only to the extent of 40% to 45%. P.W.1 being the father, who had seen the injured for the first time and being a layman, cannot estimate the percentage of burns. The autopsy surgeon examined as P.W.13 and P.W.17 who examined the mental fitness of the deceased when she was admitted to the hospital are the best persons to estimate the percentage of burns. The oral testimony of P.W.13 and 17 coupled with postmortem report, marked at Ex.P.12 would conclusively establish the fact that the deceased had sustained burn injuries to the extent of 40% to 45%. 31 The oral testimony of PW.17 who endorsed Ex.P10 vide Ex.P10(a) and on Ex.P4 clearly establishes that injured was in mentally fit at the time Ex.P4 was recorded by P.W.10. It is to be noted that P.W.17 is totally stranger to the family of the accused and he did not possess any enmity or animosity against the accused nor extra affinity towards the deceased.
40. The defence has suggested that the marriage of the deceased with Hemareddy (first marriage) was suppressed by P.W.1 and 2 and the same has come to light subsequently, which resulted in mental agony to the deceased and thereafter she was repeatedly calling her parents to take her back from matrimonial home and on account of frustration, she committed suicide. This theory of the defence is denied by P.W.1 and P.W.4. Further, it is pertinent to note that while recording the accused statement, accused himself did not make any statement in this regard. Accused did not choose to examine anybody on his behalf. The mother-in-law of the deceased said to have extinguished the fire on the day of the incident is the 32 best witness to speak about how the incident has occurred and to prove the defence theory. She is not examined on behalf of the defence for the reasons best known to accused.
41. Post Mortem report coupled with oral testimony of autopsy surgeon revels that Pushpa died due to septicemia on account of burn injuries sustained by her which is not in dispute. Theory of suicide canvassed by the defence is not established by placing any material. Hence, we have no hesitation whatsoever in holding that death of the deceased is a homicidal death.
42. Therefore, we are satisfied that there is sufficient corroboration on record as to the contents of Ex.P4. Hence, Ex.P4 can be relied upon in establishing the culpability of the accused in the incident.
43. Moreover, the incident having taken place in the matrimonial home is not in dispute. A stray suggestion is no doubt made that the accused was not present at the time of the incident and he was at Bangalore, which is 33 denied by the prosecution. Thus, the prosecution is successful in establishing that the accused was present at the time of incident. Since the incident has taken in his house, he is bound to explain as to how the incident has taken place as contemplated in section 106 of the Indian Evidence Act, especially when the plea is taken that the incident is that of suicide. In this regard, it is necessary to quote Section 106 of the Indian Evidence Act, which reads as under:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations:
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him."34
44. Gainfully, a few decisions of the Hon'ble Apex Court on Section 106 of the Indian Evidence Act are also extracted at this stage. In the decision of Hon'ble Supreme Court in Jamnadas v. State of M.P., (2016) 13 SCC 12 it is held as under:
19. We have considered the above submissions in the light of evidence on the record, and the law laid down by this Court applicable to such cases.
Undoubtedly, it is a case of circumstantial evidence.
In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , a three-Judge Bench of this Court has laid down the law as to when in a case of circumstantial evidence charge can be said to have been established. Five points enumerated in said case are summarised as under: (SCC p. 185, para 153)
(i) The circumstances from which the conclusion of guilt is drawn should be fully established. The accused must be, and not merely may be guilty, before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, 35 that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
20. On behalf of the appellants, it is submitted that the accused has a right to silence and no adverse inference can be drawn from his silence as to the cause of death of the deceased. In this connection, reliance is placed on para 141 of Selvi v. State of Karnataka [Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] , which reads as under: (SCC p. 337, para 141) "141. At this juncture, it must be reiterated that Indian law incorporates the "rule against adverse inferences from silence" which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and 36 proviso (b) of Section 315(1) CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 : 1935 All ER Rep 1 (HL)] , AC at p. 481:
'The "right to silence" is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.'"
Above observations are made by this Court in an answer to the legal question raised in the batch of criminal appeals relating to the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. In the present case facts and 37 circumstances are different. The abovereferred case, in our opinion, is of little help to the appellants in the present case.
21. In State of W.B. v. Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] , this Court, while interpreting the burden of extent of proof on prosecution, observed as under: (SCC pp. 392 & 393, paras 31 & 36-37) "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
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36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:
'106. Burden of proving fact especially within knowledge.-- When any fact is especially within 38 the knowledge of any person, the burden of proving that fact is upon him.'
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
22. Shri S.K. Jain, learned Senior Counsel, on behalf of the appellants drew our attention to Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , and argued that to invoke Section 106 of the Evidence Act the prosecution must have proved presence of the appellants in their house at the time of the incident. We have carefully gone through the case cited before us. It was a case where CCTV footage of the hotel was available but not produced to show the presence of the accused in the hotel and, as such, the plea of alibi that the accused had gone to witness "Subah-e-Banaras" from the hotel was accepted. The present case relates to a different kind of incident where a bride has been 39 brutally murdered inside the house and her body, after cutting into pieces, was thrown in the park.
23. In Trimukh Maroti Kirkan v. State of Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , which is a case similar in nature to the present one, this Court has held as under: (SCC pp. 690-91, para 15) "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
40
45. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, Hon'ble Apex Court observed as under:
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.
The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused 41 by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:
'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. Onthe contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge."42
46. Applying the legal principles enunciated in the above decisions to the case on hand, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in his house, as it was a fact specifically and exclusively to his knowledge. When once the Court is satisfied that the prosecution has established its case, the burden of proving contrary, shifts on to the accused to establish the fact, which is exclusively known to the accused.
47. From the above discussions, suffice it to say that the oral testimony of P.W.1, P.W.2, P.W.4, P.W.9 and P.W.10 officer coupled with the contents of Ex.P.4, establish the fact that the deceased sustained burn injuries and it is the accused who poured kerosene oil and set fire suspecting the fidelity of the deceased.
48. The alternate theory propounded by the defence that the incident is a suicide is not established to any extent in the absence of any plausible material by the defence. It was in the special knowledge of the accused that what made the deceased to commit suicide and that 43 fact is kept away from the Court. The mother of the accused, who extinguished the fire soon after deceased and screamed for help, is not examined on behalf of the defence.
49. For the foregoing discussion, even after reappreciation of the entire evidence on record, we are of the considered opinion that the appellant has not made out any case whatsoever to interfere with the impugned judgment. Thus, points are answered in negative and the following order is passed:
ORDER Appeal sans merit and is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE yan