Karnataka High Court
Sanganagouda S/O Paranagouda Goudar vs The State Of Karnataka on 20 July, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A No. 2847 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO.2847 OF 2012
BETWEEN:
1. SANGANAGOUDA
S/O PARANAGOUDA GOUDAR,
AGE: 28 YEARS,
OCC: AGRICULTURE,
R/O.CHIKKABADAWADAGI,
TQ: HUNAGUND.
2. PARANAGOUDA
S/O SANGANAGOUDA GOUDAR,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O.CHIKKABADAWADAGI,
TQ: HUNAGUND.
3. SANGANBASAVVA
W/O PARANAGOUDA GOUDAR,
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O.CHIKKABADAWADAGI,
TQ: HUNAGUND.
...APPELLANTS
(BY SRI. MANOJ B. & SRI ANAND R.KOLLI, ADVOCATES)
AND:
THE STATE OF KARNATAKA
REP.BY DEPUTY SUPERINTENDENT OF POLICE,
BAGALKOT SUB DIVISION,
BY SPP
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CRL.A No. 2847 of 2012
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
UNDER SECTION 374(2) OF CR.P.C.SEEKING TO SET ASIDE
THE ORDER OF CONVICTION, INCLUDING THE FINE IMPOSED
BY THE HON'BLE SESSIONS JUDGE, BAGALKOT, IN SESSIONS
CASE NO.35/2011 DATED 14.09.2012 FOR AN OFFENCE
PUNISHABLE U/SEC.498(A) AND 304(B) AND SECTION 3 AND 4
OF DOWRY PROHIBITION ACT R/W SEC.34 OF INDIAN PENAL
CODE, IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Manoj B., learned counsel for the appellants and learned High Court Government Pleader for the respondent - State and perused the records.
2. Accused who have been convicted in S.C.No.35/2011 by the Principal District and Sessions Judge, Bagalkot by judgment dated 14.09.2012 and ordered to undergo sentence have preferred this appeal.
3. Brief facts of the case are as under:
A complaint came to be lodged with Hungund Police by Chandappa S/o Mariyappa on 20.12.2010. Gist of the complaint averments reveal that the complainant had six -3- CRL.A No. 2847 of 2012 daughters and a son. Among six daughters, third daughter by name Akkamahadevi was married to Sanganagouda s/o Paranagouda (1st appellant) on 16.05.2010. At the time of marriage, Rs.31,000/- cash and 1 ½ tola gold ornaments were given as dowry. After marriage, Akkamahadevi joined the matrimonial home. Two months, she was looked after in good manner and thereafter, when she visited parental house, she has complained that the accused had demanded for additional dowry in a sum of Rs.50,000/- and additional quantity of gold. It was also reported that the accused persons assaulted her physically and given mental torture. On hearing the same, a panchayath was convened wherein the relatives and elders and told accused persons that they don't have money and gold to pay additional dowry and to look after Akkamahadevi in a proper manner. Despite the same, harassment continued.
4. When the matter stood thus, on 12.12.2010, the deceased was not well and therefore, she was brought back to the parental house. On 19.12.2010, 1st appellant telephoned to the complainant and told that the deceased is -4- CRL.A No. 2847 of 2012 to be sent back to matrimonial home as they are feeling difficulty in attending day-to-day work. As such, she was sent back to matrimonial home along with his mother and others. On 20.12.2010, at about 7.30 a.m., one of the relatives of the complainant telephoned to the complainant stating that Akkamahadevi has committed suicide by self- immolation by pouring kerosene on her and litting fire and she has been shifted to Bagalkot Government Hospital. Immediately, the complainant and his relatives visited the hospital and noticed that there were severe burn injuries on the entire body of Akkamahadevi. On enquiry, she revealed that there was a demand for additional dowry and the appellants gave her physical and mental harassment and unable to bear the same, she poured kerosene on herself and lit fire around 6.30 a.m. in the land belonging to the accused.
5. Based on the said complaint, the police registered a case in Crime No.143/2010 for the offences punishable under Sections 323, 498A, 504 read with 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act at the first -5- CRL.A No. 2847 of 2012 instance. Later, the police received the information that despite the best medical treatment, the victim succumbed to the burn injuries and therefore offence under Section 304B IPC was also invoked.
6. Police have investigated the matter and filed charge sheet against the appellants-accused persons for the offences punishable under Section 498A, 304B r/w 34 of IPC and Section 3 and 4 of Dowry Prohibition Act.
7. The presence of the accused persons were secured before the trial court on receipt of the charge sheet and charges were framed against the appellants and another accused by name Ningamma. Accused persons pleaded not guilty and therefore, trial was held.
8. In order to establish the case of the prosecution, prosecution in all examined 32 witnesses as PWs.1 to 32 and 50 documentary evidence which were exhibited and marked as Exs.P1 to P50. Prosecution further relied on three material objects which were marked as MOs.1 to 3.
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9. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 Cr.P.C. was recorded, wherein accused persons denied all the incriminatory materials and did not choose to place any written submission as contemplated under Section 313(5) Cr.P.C.
10. Thereafter, learned trial Judge heard the parties in detail and after considering the oral and documentary evidence on record coupled with the material objects relied on by the prosecution, convicted the accused-appellant Nos.1 to 3 for the aforesaid offences and acquitted accused No.4 for all the charges by the impugned judgment and sentenced as under:
Offences Punishment Fine Default
sentence
498A Simple Rs.1,000/- Simple
IPC imprisonment each imprisonment
1 year for 3 months
304B Simple Rs.1,000/- Simple
IPC imprisonment each imprisonment
of 7 years for 3 months
Sec.3 of Simple Rs.31,000/- Simple
D.P. Act imprisonment each imprisonment
for five years for 3 months
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CRL.A No. 2847 of 2012
Sec.4 of Simple Rs.1,000/- Simple
D.P. Act imprisonment each imprisonment
for one year for 3 months
11. Being aggrieved by the judgment of conviction and order of sentence, appellants-accused No.1 to 3 have preferred the present appeal. In the appeal following grounds have been raised:
• The orders passed by the Hon'ble Trial Court is against the material evidence on the record. Hence is liable to be set aside.
• The Hon'ble trial court had not appreciated the evidence examined on behalf of the prosecution where all the prosecution witness had not supported the case hence, the order of convection including the fine amount may kindly be set aside in the interest of justice.
• The PW 31 had clearly stated in his evidence that the deceased Akkamahadeve had burnt to the extent of 70-80% and further it is settled under the criminal jurisprudence that a person who was burnt more than 60% that she is not in a able to speak but the doctor stated that she is able to speak hence the evidence given by the PW 31 is only to help the prosecution hence observation by the trial court is against the to the settle the -8- CRL.A No. 2847 of 2012 principles of the law hence order of the convection is liable to be liable to set aside to meet the ends of the justice.
• Further The PW 31 doctor had clearly stated in his evidence that the he had not recorded the B.P and pulse rate of the deceased Akkamahadevy were it is under the general principle that the minimum basic examinations has to be done and further stated that the general condition of the patient was poor hence the order of convention is against to the material of the record hence it is liable to be set aside to meet the ends of the justice. • Further the PW32 had clearly stated that he was a causality medical officer and further he stated in the cross examination that the Tahsildar has not recorded the statement of any person in my presence and further the same was not mentioned in the hospital records about the Tahsildar regarding recording of time declaration hence the order of convention of the trial court is liable to be set aside to meet the ends of justice.
• The Hon'ble trial court has relied on the decisions laid down by the Supreme Court reported in 2012(2) Crimes 281 (SC) between Salim Gulab Pathan V/s State of Maharashtra. Were the facts laid down in this case does not applicable to the present appellant case hence the order of -9- CRL.A No. 2847 of 2012 convention is bad in law hence it is liable to set aside to meet the ends of the justice.
• Further in the top noted case were the Hon'ble district and session judged relied and convicted the appellants in the said judgment the point No.2 clearly states that the deceased must be in fit state of mind at the time of making the statement and that it was not a result of torturing promoting or imagination but the doctors had clearly stated that the deceased Akkamahadevy was burnt to the extent of 70-80% hence she is not in a position to speak and also not in a position to understand the consequences hence the order of convection is against to the principles laid down in the above top noted case which is laid down by the Supreme court and also were the Hon'ble the district judge is relied hence its clearly misconstrue of law Wherefore the order of convection including the fine amount may kindly be set aside in the interest of justice. • Further the Hon'ble Supreme court has laid down in the same case that Mere dying declaration cannot found in the sole basis of convection unless it is corroborated hence in the present case were all the prosecution witness were turned hostile hence the Hon'ble district judge had own looked all the principles and basic aspects laid down by the Supreme Court hence the order of convection
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CRL.A No. 2847 of 2012 may kindly be set aside to meet the ends of justice in the interest of justice.
• It is clearly stated that the case of Mahindra Singh and another V/s State of M.P reported in 1995 Supp(3) Supreme Court Cases 731, taken note of the dying declaration given by the deceased in the said case which reads as follows:
o "My mother-in-law and husband and sister- in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law Because of these reasons and being harassed I want to die by burning hence the order of convention is against to the principle laid down in the above top noted case. Wherefore the appellants was respectively prays that this Hon'ble court may please to set aside order of the trial court to meet the ends of justice.
• It is clearly stated that the deceased Akkamahadevi was subjected to what sort of where it is opined that death is due to Septicemia were it is stated that the injury extent of 80-82 % and further the postmortem reports states that the where all the organs including the fingers and chest were completely burnt and further the Epidermis of all the organs were completely burnt
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and further taking the finger prints of the deceased Akkamahadevy is unsustainable hence it is only created to help the prosecution case wherefore the order of the convection is against to the unsustainable in the eye of law hence it may kindly be set aside in the interest of justice.
• There was no any prior dispute between the appellant and the complainant and the accused No.1 had look after the complainant very well till today and she has been clearly stated in her cross examination that the dispute was arises Hence Trial Court had over looked the intention of the complainant and supporting prosecution witnesses. Hence the order of the conviction is liable to be set aside to meet the ends of justice.
• The appellants are only the persons to look after their families and old aged parents and further they were an agriculturist and if the order of the Trial is not set aside, the appellants will be put into great injustice. Hence it may be set aside to meet the ends of justice.
• Some of the legal grounds may be urged at the time of hearing with due prior permission of the Hon'ble Trial Court.
12. The State has not preferred any appeal against acquittal of accused No.4 in the case and therefore, the judgment in respect of accused No.4 has become final.
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CRL.A No. 2847 of 2012
13. Reiterating the above grounds urged in the appeal memorandum Sri Manoj B., learned counsel for the appellants vehemently contended that the material evidence placed by the prosecution on record is hardly sufficient to arrive at a finding that accused persons are responsible for the suicidal death of Akkamahadevi and therefore, the impugned judgment is bad-in-law.
14. He also pointed out that the trial Judge has placed much reliance on the alleged dying declaration even though the oral evidence of the parents of the deceased did not support the case of prosecution in its entirety. Therefore, there is no independent evidence on record to prove the charges leveled against the accused and sought for allowing the appeal.
15. Per contra, learned High Court Government Pleader opposes the appeal grounds by contending that the marriage is not in dispute and within a short period of marriage, the unfortunate incident has occurred. He also pointed out that the victim was brought back to the parental house on account of her ill-health and first accused
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CRL.A No. 2847 of 2012 telephoned to the parents of the deceased and asked her to join the matrimonial home. On the very next day, she was sent to the matrimonial home along with the mother of the deceased and other relative on 19.12.2010. However, on 20.12.2010 in the morning hours around 7.30 a.m. complainant received the phone call from one of the relatives reporting the unfortunate incident and was directed to visit the hospital which shows that there is a direct nexus between the incident that has occurred on 20.12.2010 and the harassment imparted to the deceased by the appellants and sought for dismissal of the appeal.
16. He further argued that Dying declaration of the deceased recorded by Taluka Executive Magistrate sufficiently proves the guilt of the appellants.
17. He also pointed out that the prosecution in the case on hand, has got the presumption that the commission of the suicide by the deceased is on account of the harassment meted out to her in the matrimonial home within seven years of the marriage and there is no rebuttal evidence placed on record by the accused either furnishing
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CRL.A No. 2847 of 2012 the written submission or examining any defence witnesses and therefore, the case of the prosecution cannot be doubted and sought for dismissal of the appeal.
18. In view of the rival contentions of the parties, this Court perused the materials on record. On such perusal of the material on record, following points would arise for consideration.
1. "Whether the prosecution has successfully established the offences alleged against the accused persons offences punishable under Sections 498A, 304B r/w Section 34 IPC and the offences under Section 3 and 4 of the Dowry Prohibition Act beyond reasonable doubt?
2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?
3. Whether the sentence ordered by the trial Court is excessive?"
19. Regarding Point Nos.1 and 2:- In the case on hand, in all 32 witnesses have been examined. Among them, PW1 is the pancha witness to inquest mahazar, PWs.27 and
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CRL.A No. 2847 of 2012 28 are the pancha witnesses to seizure mahazar and PW29 is the pancha witness to spot mahazar. Their evidences are formal in nature as there is no dispute as to place of incident and death of Akkamahadevi. Likewise P.Ws.3, 4 and 19 are the neighbours of the accused land. They have deposed about the accused holding the land where the place of incident took place. P.W.2 is the Station House Officer. The oral testimony of all these witnesses are formal in nature. P.Ws.6, 18, 20 and 21 are the relatives of the complainant who have deposed about the marriage and the incident. P.Ws.7 to 9 are the elder member of the accused village, who have signed the list prepared at the time of engagement. P.W.10 and P.W.11 are the persons who are from accused village, who participated in marriage staff. P.W.12 is the elder member of the complainant's village, who was also present at the time of marriage talks. P.W.13 is the brother of the complainant and he is the scribe of Ex.P.23. P.W.14 is the Doctor who conducted autopsy and issued report at Ex.P.24. P.W.17 is the FIR carrier. P.W.23 is the Assistant Engineer who drove the spot sketch at Ex.P.41.
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CRL.A No. 2847 of 2012 The evidence of all these witnesses are formal in nature and not seriously questioned by the defence.
20. PW24 is the complainant and father of the deceased. He deposed about marriage of the deceased with accused No.1. He also deposed about payment of dowry amount of Rs.30,000/- and 1½ tola gold at the time of marriage. He deposed about the incident wherein Akkamahadevi died on account of burn injuries. However, he specifically deposed that his daughter has not told anything about the incident as to why she committed the suicide. His signature on the complaint was marked and he also stated he does not know the contents of Ex.P23 and who has written the same.
21. Since he did not support the case of the prosecution in entirety, he has been treated as hostile witness and cross-examined by the prosecution. In cross- examination, contents of the complaint and further statement of witnesses were confronted to him and stated that he has given statement before the police that on enquiry with Akkamahadevi, she revealed that being unable
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CRL.A No. 2847 of 2012 to bear with the torture given by the appellants, she has committed suicide. Said suggestion is denied by the witness. This witness is not cross-examined by the defence.
22. PW.22 is the mother of the deceased. She has also supported the case of the prosecution only to certain extent deposing about the marriage and amount given at the time of marriage in line with the examination-in-chief of her husband. As such, prosecution treated her also as hostile witness and cross-examined by confronting the statement given by her before the investigating officer under Section 161 of Cr.P.C., however, she denied the suggestions put on behalf of prosecution.
23. Thus, the prosecution case mainly hinges on the oral testimony of the Tahasildar who recorded the dying declaration marked at Ex.P.45. He is examined as PW.25. He deposed before the Court stating that between 08.07.2009 to 27.04.2011 he worked as Tahasildar, Bagalkot; on 20.12.2010 he received request from Hungund police to visit Kumareswar Hospital, Bagalkot, wherein Akkamahadevi is being treated for burn injures. Immediately, he proceeded to
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CRL.A No. 2847 of 2012 the said hospital and enquired Dr.M.C.Kori about the mental fitness of Akkamahadevi to give statement. After examination, Dr.M.C.Kori confirmed that injured is in fit state of mind to give statement and thereafter he proceeded to enquire Akkamahadevi and recorded statement given by her and the same was reduced into writing vide Ex.P.45. He has identified the dying declaration recorded by him before the Court and also signature found on it and the doctor who signed it.
24. In his cross-examination, he admits that the doctor has not made any endorsement on Ex.P.45 about the mental fitness of Akkamahadevi in Ex.P.45. He admits that he does not remember the name of the doctor who was present during recording of dying declaration. He also admits that he has not prepared any panchanama that Akkamahadevi was in fit state of mind to give statement. He admits that Akkamahadevi has sustained burn injuries on the left thumb as well as other portion of body. But he has answered that Akkamahadevi was in position to affix the thumb impression on Ex.P.45.
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25. P.W.31 is the Doctor who treated the deceased and issued Ex.P.46. Further, Dr.M.C.Kori has been examined as PW.32. He has specifically deposed that on 20.12.2010 he was medical officer from 2.00 p.m. to 8.00 p.m and Tahasildar, Bagalkot came to visit his hospital for recording dying declaration of Akkamahadevi and at that juncture, he has been requested by PW.25 over telephone to accompany him and to be present at the time of recording statement. Accordingly, he examined the deceased and she was conscious and was in a fit condition to speak. Therefore, he permitted the Tahasildar to record statement of Akkamahadevi between 4.20 p.m. to 5.15 p.m. and he was present throughout recording of dying declaration. He has also signed Ex.P.45 and is marked as Ex.P.45(b).
26. In his cross-examination, it is elicited that Tahasildar has not recorded statement of any person in his presence. He admits that recording of dying declaration is not mentioned in the hospital records. He admits that he has not made any endorsement that he examined Akkamahadevi and she was in fit statement of mind to give statement. He
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CRL.A No. 2847 of 2012 answered that contents of Ex.P.45 is written by a person who accompanied PW.25 and he does not know his name. He admits that one male person and female person were present at the time of Tahasildar recording dying declaration of Akkamahadevi and he does not know who they are. He denied that he has given false statement.
27. P.W.15 is the PSI of Hunagund Police Station. He received the Medico Legal Case from the Kumareshwara Hospital and accordingly deputed the person to record the complaint and filed the report vide Exs.P.26 to P.29 and supported the case of the prosecution.
28. After registering the case, P.W.30 - CPI., investigated the mater in part. He supported the case of the prosecution to the extent of the investigation which he has conducted. However, police officer further investigated the matter and filed the charge sheet is no more and therefore he was not examined.
29. P.W.26 is the Surgeon who produced the case sheet and deposed about Ex.P.46.
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30. The above evidence is sought to be re- appreciated by the learned counsel for the appellants.
31. In order to appreciate the grounds urged in the appeal memorandum and to appreciate other contentions urged before this Court stating that dying declaration is not properly proved before the trial court, learned counsel for the appellants has placed reliance on the following judgments, the relevant portion of the same is culled hereunder:
"1. In State of Uttar Pradesh vs. Veerpal and Another [(2022) 4 SCC 741]
16. Now, on the aspect, whether in the absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of this Court in Munnu Raja [Munnu Raja v. State of M.P., (1976) 3 SCC 104 : 1976 SCC (Cri) 376] and the subsequent decision in Paniben v. State of Gujarat [Paniben v. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403] are required to be referred to. In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and
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voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in State of U.P. v. Ram Sagar Yadav [State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127] and Ramawati Devi v. State of Bihar [Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169] . Therefore, there can be a conviction solely based upon the dying declaration without corroboration.
17. Khushal Rao v. State of Bombay [Khushal Rao v. State of Bombay, 1958 SCR 552 : AIR 1958 SC 22] is a watershed judgment on the law on the evidentiary value of dying declarations. This Court laid down the following principles as to the circumstances under which a dying declaration may be accepted, without corroboration : (AIR pp. 28-29, para 16) "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion [Guruswami Tevar, In re, 1939 SCC OnLine Mad 384] of the Full Bench of the Madras High Court, aforesaid, (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
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CRL.A No. 2847 of 2012 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 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."
2. In Jagbir singh vs. State (NCT of Delhi) [(2019) 8 SCC 779]
21. But when a declaration is made, either oral or in writing, by a person whose death is imminent, the principle attributed to Mathew Arnold that "truth sits
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CRL.A No. 2847 of 2012 upon the lips of a dying man" and no man will go to meet his maker with falsehood in his mouth will come into play. The principles relating to dying declaration are no longer res integra and it would be apposite that we refer to the decision of this Court in Paniben v. State of Gujarat [Paniben v. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403] wherein the concepts are summed up as follows: (SCC pp. 480-81, para 18) "(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [Munnu Raja v. State of M.P., (1976) 3 SCC 104 : 1976 SCC (Cri) 376] )
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127] ; Ramawati Devi v. State of Bihar [Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169] ).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 : 1976 SCC (Cri) 473]).
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(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [Rasheed Beg v. State of M.P., (1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [Kake Singh v. State of M.P., 1981 Supp SCC 25 : 1981 SCC (Cri) 645] )
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [Ram Manorath v. State of U.P., (1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455 : 1981 SCC (Cri) 364] )
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar [Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769 : 1979 SCC (Cri) 519] )
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was
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CRL.A No. 2847 of 2012 in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanhau Ram v. State of M.P. [Nanhau Ram v. State of M.P., 1988 Supp SCC 152 : 1988 SCC (Cri) 342] )
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [State of U.P. v. Madan Mohan, (1989) 3 SCC 390 : 1989 SCC (Cri) 585] )"
Also, in para 19, it was held as follows: (SCC p. 481) "19. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohanlal Gangaram Gehani v. State of Maharashtra [Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 : 1982 SCC (Cri) 334] held:
"where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred."
Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, they have to be accepted."
3. In Lakhan vs. State of Madhya Pradesh [(2010) 8 SCC 514]
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"11. In Munnawar v. State of U.P. [(2010) 5 SCC 451 :
(2010) 2 SCC (Cri) 1285] this Court held that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded."
4. In Laxman vs. State of Maharashtra [(2002) 6 SCC 710]:
"5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P.[(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p.701,para 8) "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a
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CRL.A No. 2847 of 2012 fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432]".
32. In the background of the above settled legal principles when the material on record is appreciated, there is no dispute that Akkamahadevi was married to appellant No.1 on 16.05.2010. To the extent of parents of deceased supported the case of prosecution, it is unequivocal say of the parents of the deceased that at the time of marriage Rs.30,000/- and 1½ tola gold was given as dowry. However, within a period of within two months of the marriage Akkamahadevi visited parental house and intimated her
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CRL.A No. 2847 of 2012 mother that there is physical and mental harassment in the matrimonial home demanding additional dowry. The financial condition of the complainant's family did not permit to pay the additional dowry and therefore, the complainant and his relatives convened a panchayat with elders and requested the appellants to look after the deceased properly. Thereafter, material discloses that on 12.12.2010, Akkamahadevi came to the parental house stating that harassment for additional dowry did not stop.
33. When the matter stood thus, on 19.12.2010 there was telephonic call received by complainant from appellant No.1 stating that they were unable to carry on day to day work and she should be sent to matrimonial home. Accordingly, Akkamahadevi was sent to the matrimonial home who was accompanied by her mother and other relatives of Akkamahadevi on 19.12.2010 itself. Thereafter, the very next day i.e. 20.12.2010, at about 7.30 a.m. complainant received a call from Mallappa Goudar to the effect that Akkamahadevi had attempted to commit suicide by pouring kerosene on her and litting fire in the shed which
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CRL.A No. 2847 of 2012 is situated in the agricultural land, belonging to the appellants. He also received information that Akkamahadevi has been shifted to the hospital at Bagalkot. Accordingly, the complainant and other relatives visited the hospital, wherein they enquired Akkamahadevi as to the incident and she has narrated that being unable to bear the physical and mental harassment imparted to her on account of demand of dowry, she has attempted to commit suicide. Further, this portion of the complaint averment is not supported by the complainant and his wife as they have turned hostile to the case of the prosecution to this extent. However, it is now settled principles of law that testimony of hostile witness/witnesses cannot be discarded in toto. But in such testimony also the Court is not precluded from appreciating the case of prosecution to the extent possible.
34. Nevertheless, to the extent the parents have of the deceased have supported the case of the prosecution coupled with the complaint averments when viewed cumulatively, it appears that deceased has come back on 12.12.2010 to the parental house despite the decision and
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CRL.A No. 2847 of 2012 advice of the panchayat to look after Akkamahadevi in proper manner. There is no dispute that on 19.12.2010 appellant No.1 called complainant over telephone and requested Akkamahadevi to join the matrimonial home. Accordingly, mother of the deceased and other relatives left her in the matrimonial home. Admittedly, the incident has taken place in the matrimonial home. What transpired in the night hours which prompted the Akkamahadevi to commit suicide next morning, is a question that needs to be explained by accused as the same is in special knowledge of accused as is contemplated under Section 106 of Indian Evidence Act. But appellants did not place any plausible explanation in this regard either at the time of answering the incriminatory materials that were posed to them while recording accused statement or furnishing any written statement as is contemplated under Section 313 (5) of Cr.P.C. In the absence of any such possible/plausible explanation offered by the accused, Trial Court placing reliance on Ex.P.45 - dying declaration recorded by PW.25 held that appellants are responsible for suicidal death of Akkamahadevi is perfectly justified.
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35. No doubt, there is no specific format that has been used by the Tahasildar - P.W.25 for recording dying declaration. However, it is now settled principles of law that no specific format is necessary for recording the dying declaration. Likewise, dying declaration need not be in the form of question and answers nor it should be in the narrative format. The decision relied by the appellant in Veerpal supra also propounds the same.
36. Further, why PW.25 recorded the dying declaration in a narrative form is not even questioned in the cross-examination by the appellants. Nor any materials are placed on record by the appellants to establish that serious prejudice has been caused to the appellants by recording the dying declaration in the narrative form. Likewise, mere non- taking endorsement about the mental fitness at the beginning of the dying declaration or at the end of dying declaration would by itself can not be made as a ground to doubt the contents of the dying declaration. At the most it is only a procedural irregularity. As such, the case of the prosecution cannot be non suited only on the ground that the
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CRL.A No. 2847 of 2012 dying declaration is not in a particular or prescribed form or for want of necessary endorsement by the Doctor. Further, in this regard, this Court places reliance on the judgment of the Hon'ble Apex Court in the case of State of Madhya Pradesh. v. Dal Singh, (2013) 14 SCC 159. In the said decision the Hon'ble Apex Court did consider the principles laid down in Laxman v. State of Maharashtra [(2002) 6 SCC 710 and few other decisions on the point and has held as under:
"In Laxman v. State of Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri) 1491 : AIR 2002 SC 2973] this Court held, that a dying declaration can either be oral or in writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the testimony of the Magistrate, to the
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CRL.A No. 2847 of 2012 extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.
16. In Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432 : AIR 1999 SC 3695] this Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also Babu Ram v. State of Punjab [(1998) 9 SCC 495 : 1998 SCC (Cri) 1043 : AIR 1998 SC 2808] .)
17. In Laxmi v. Om Prakash [(2001) 6 SCC 118 :
2001 SCC (Cri) 993 : AIR 2001 SC 2383] this Court held (SCC pp. 132-33, para 29), that if the court finds that the capacity of the maker of the statement to narrate the facts was impaired, or if the court entertains grave doubts regarding whether the deceased was in a fit physical and mental state to make such a statement, then the court may, in the
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absence of corroborating evidence lending assurance to the contents of the declaration, refuse to act upon it.
18. In Govindappa v. State of Karnataka [(2010) 6 SCC 533 : (2010) 3 SCC (Cri) 184] it was argued that the Executive Magistrate, while recording the dying declaration did not get any certificate from the medical officer regarding the condition of the deceased. This Court then held, that such a circumstance itself is not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence.
19. In State of Punjab v. Gian Kaur [1998 SCC (Cri) 942 : AIR 1998 SC 2809] an issue arose regarding the acceptability in evidence, of the thumb impression of Rita, the deceased, that appeared on the dying declaration, as the trial court had found that there were clear ridges and curves, and the doctor was unable to explain how such ridges and curves could in fact be present, when the skin of the thumb had been completely burnt. The court gave the situation the benefit of doubt.
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CRL.A No. 2847 of 2012
20. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case.
21. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross- examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity.
22. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact."
37. Applying the legal principles in Dal Singh supra to the case on hand, thumb of the deceased having burn
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CRL.A No. 2847 of 2012 injury did not invalidate the Ex.P.45. So also the procedural irregularities like Ex.P.45 being in narrative form and non taking necessary endorsements on Ex.P.45 from the Doctor itself did not invalidate dying declaration. So also there was no impediment in the case on hand for the Trial Court to place reliance on Ex.P.45 and pass the order of conviction as the same had inspired confidence in the Trial Court. No doubt, the reasons assigned by the Trial Court in accepting the Ex.P.45 and convicting the appellants may fall short on few of the aspects. However, having regard to the discussion made supra this Court being the Appellate Court can very well supplement additional reasons. Admittedly, neither PW.25 nor PW.32 possessed any previous enmity and animosity against the accused for deposing falsely against them. Nor did they possess any extra affinity towards the deceased or complainant party. Moreover, both the witnesses are official witnesses and they have discharged their duty in accordance with law. Further there is presumption under Section 114(e) of the Indian Evidence Act that official acts have been regularly performed. No doubt, it is a rebuttable presumption. But, no such rebuttal evidence
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CRL.A No. 2847 of 2012 is placed on record by the appellants. Hence, official duty performed by PW.25 and PW.32 are deemed to have been regularly performed. Further, suicidal death of Akkamahadevi has taken place within seven years of marriage, the prosecution further enjoys presumption under Section 113-B of the Indian Evidence Act. Again the said presumption is a rebuttable presumption and the same needs to be rebutted by placing suitable cogent and plausible evidence on record by the accused. In the case on hand, for the reasons best known to the accused, no such evidence is placed on record by the accused to rebut presumption available to the prosecution under Section 113-B of the Indian Evidence Act. These aspects of the matter have been properly appreciated by the trial Judge while recording an order of conviction against the appellants. There is also clear discussion as to the role played by all the accused persons in the incident. Therefore, the learned trial Judge himself after appreciating the material evidence on record, has acquitted accused No.4 and convicted only accused Nos.1 to 3.
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CRL.A No. 2847 of 2012
38. On re-appreciation of the material on record, this Court does not find any perversity or legal infirmity in reaching out such a finding by the learned Trial Judge. Further, the grounds urged in the appeal would not be sufficient to hold that the prosecution case is suffering from any serious doubt so as to seek interference by this Court under the appellate powers. On the contrary, the impugned judgment is based on sound and logical reasons, by applying proper principles of law including appreciation of Ex.P.45- dying declaration recorded by PW.25. Mere procedural lapses by PW.25 in recording Ex.P.45 would not ipso facto turn out the case of the prosecution as doubtful and therefore, this Court is of the considered opinion that the appellants have not made out any grounds whatsoever much less good grounds to interfere with the order passed by the trial Court in convicting the appellants for the aforesaid offences. Hence, point No.1 is answered in affirmative and consequently point No.2 is answered in negative.
39. Regarding Point No.3:- The trial Judge has taken into consideration all relevant materials and passed
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CRL.A No. 2847 of 2012 order of sentence as referred to supra. No mitigating circumstances are placed before this Court except pleading that appellant Nos.2 and 3 are old age people to reduce the sentence. Mere fact that the appellants are in advanced age is itself not a mitigating circumstance in every case. Therefore, this Court is of the considered opinion that the sentence ordered by the learned trial Judge is just and appropriate having regard to the facts and circumstances of the case on hand. Hence, the following:
ORDER The appeal is devoid of merits and is hereby dismissed. Appellants are directed to surrender before the trial Court on or before 15th September, 2022 for serving the remaining part of sentence.
Office to return trial Court records with a copy of this order forthwith.
SD/-
JUDGE CLK/SH/MR