Karnataka High Court
Ningappa Ningappa Buggi @ Pujer vs The State Of Karnataka on 8 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY 2017
PRESENT
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2669 of 2013
Between
Ningappa Ningappa Buggi @ Pujer
Age: 39 Years, Occupation: Nil
Resident of Narasapur
Taluk:Ramdurg, Belgaum
... Appellant
(By Sri M H Patil, Advocate)
And
The State Of Karnataka
Represented By
Deputy Superintendent Of Police,
Bailhongal, District: Belgaum,
Represented by Additional State Publicp
Prosecutor, High Court Circuit Bench, Dharwad .
... Respondent
(By Sri V.M. Banakar, Additional State Public Prosecutor)
This criminal appeal is filed under Section 374 (2) Of the
Code of Criminal Procedure seeking that the judgment of
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conviction and order of sentence dated 28.03.2013 passed by
the III-Addl. Sessions Judge, Belgaum, in S.C.No.98/2012 and
thereby convicting the appellant and sentencing him to undergo
rigorous imprisonment for life and fine of Rs.10,000/- for the
offences punishable Under Section 302 of the Indian Penal
Code be set aside and appellant be acquitted for the charges
leveled against Him.
This Criminal Appeal coming on for hearing this day,
Anand Byrareddy J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.
2. The appellant is accused of having committed the murder of his wife and has stood trial for the offences punishable under Sections 498A and 302 of the Indian Penal Code, 1860(hereinafter referred to as the 'IPC' for brevity) and has been found guilty for the offence punishable under Section 302 of IPC and has been sentenced to life imprisonment apart from fine and hence, the present appeal.
3. The facts leading up to this appeal, as stated by the prosecution, are that the appellant had married one Rukmawwa who was the daughter of Maruti Yallappa Pisale and :3: Smt.Kallawwa Maruti Pisale examined at the trial as PW.6 and PW-7, respectively, of Katakol village. The appellant had married Rukmawwa about 10 years prior to the complaint and they had 3 children by the marriage. About 6 months prior to the incident, it transpires, that the appellant was suspecting the fidelity of Rukmawwa and was consistently harassing her both physically and mentally. This lead to Rukamwwa complaining bitterly to her parents and father-in-law, as well, apart from other elders seeking their intervention to advise the appellant not to torture her on false accusations. In spite of intervention of the elders and others, the appellant is said to have continued to ill-treat Rukmawwa.
4. On 31.10.2011 at about 6.00 p.m., the accused is said to have taken some money and was leaving the house and since Rukmawwa was concerned about his over spending, had requested him not to unnecessarily spend money at which he is said to have lost his temper and while abusing her in foul language, had immediately picked up a can of kerosene and poured it on Rukmawwa and is said to have set her ablaze. :4: When she had cried for help, neighbourers, namely, Vithal Satteppa Kilikai, Dyamawwa Bhimappa Walikar and Yallapa Pujer, PW.8, Pw.9 and PW.10 respectively, had rushed to her rescue and tried to extinguish the fire. However, she had suffered burn injuries and was rushed to Government hospital, Ramdurg in an ambulance. PW-17-Dr. Vidya Amminbhavi, lady Medical Officer, Government Hospital, Ramdurg, had examined Rukmawwa at about 8.35 p.m. and found that Rukmawwa had sustained severe burn injuries all over her body which were to the extent of 80 to 90% and immediately directed that she required treatment at a bigger hospital and therefore she was taken to the Government Hospital, Belgaum, for further treatment.
5. The Assistant Sub-Inspector of Katakol Police Station, Sri S.S. Solabannavar-PW.20 is said to have received intimation from the APMC Marked Yard, Belgaum, regarding the admission of Rukmawwa at District Hospital, Belgaum and about the incident. Therefore, he had visited the District Government Hospital, Belgaum, at 3.00 a.m. on 01.11.2011 and :5: submitted a requisition to the Chief Medical Officer, District hospital, as per Ex.P-32 to provide information as regards the mental condition of Rukmawwa to make her statement. PW-23
-Dr. R.S. Patel, Medical Officer of the District Hospital, Belgaum, is stated to have endorsed the fact that Rukmawwa was in a fit condition to make her statement and thereafter PW.20-ASI had submitted a requisition to the then Tahasildar, Belgaum, requesting him to come over to the hospital and record the dying declaration of Rukmawa. Thereafter, he is said to have returned to the District Hospital and recorded the statement of Rukmawwa at about 7.50 a.m. on 01.11.2011 as per Ex.P-33 in the presence of PW-22-Dr. Gomatesh K. wherein he had stated that her husband had poured kerosene and set her on fire at about 6.00p.m. at their house at Narasapur village. Therefore, acting on the said statement, the ASI had registered a case for the offences punishable under Section 498A and 307 of IPC as against the accused and had submitted the FIR to the Court of Magistrate, Ramdurg.
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6. PW-18, the then Tahasildar on receiving requisition from PW-20, had proceeded to the Government Hospital, Belgaum, at about 7.30 a.m. and after meeting the Chief Medical Officer-PW-23 and on his certification that the victim was in a fit state of mind to make the statement, he has proceeded to record the dying declaration of Rukmawwa in 'question-answer' format as at Ex.P-28 wherein she has narrated the manner in which the incident had taken place and all the overt acts on the part of her husband. The said dying declaration is said to have been placed in a sealed cover.
7. After further proceedings against the accused, since Rukmawwa is said to have succumbed to the injuries on 07.11.2011, a case was also registered for the offence punishable under Section 302 instead of Section 307 of IPC and it is thereafter, on the case being committed to the Court of Sessions that the appellant stood trial and pleaded not guilty and claimed to be tried. On completion of the trial and on the :7: basis of evidence tendered, the Court below had framed the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubts that this accused subjected deceased-Rukmawwa Ningappa Buggi with physical and mental cruelty for the last six months prior to the date of the incident that is 31.10.2011 and thereby committed offence punishable under Section 498-A of the Indian Penal Code as alleged?
2. Whether the prosecution proves beyond all reasonable doubt that on 31.10.2011 at about 6.00 p.m., at the house NO.144 belonging to PW-10 Yallawwa Laxmappa Pujari occupied by this accused as well as above deceased-Rukmawwa Ningappa Buggi situated at Narasapur village, Tal: Ramdurg, this accused intentionally poured kerosene oil on the person of deceased-Rukmawwa Ningappa Buggi and set fire so as to take away her life and she thereby sustained severe burn injuries in the said incident died on 7.11.2011 at about 6.30 a.m. and thereby this accused committed offence punishable under Section 302 of the Indian Penal Code as alleged?
3. What is the final order in respect of disposal of Material object Nos.1 to 4?
The trial Court has answered point No.1 in the negative and Point No.2 in the affirmative. In that, the appellant has been acquitted for an offence punishable under Section 498A but has been convicted and sentenced to life imprisonment for an :8: offence under Section 302. It is that which is under challenge in this appeal.
8. The learned counsel for the appellant would contend that there are no direct eyewitnesses to the incident except PW-8, PW-9 and PW-10 who are said to have come to the rescue of Rukmawwa when she cried for help and therefore, the said witnesses were at the scene only after the alleged commission of any overt act by the accused and therefore it is not possible for the prosecution to contend that there were direct eyewitnesses to the incident and therefore, he would submit that if the entire basis for conviction of the accused is the so called dying declaration at Ex.P-28, the same cannot be reconciled with yet another dying declaration at Ex.P-33. In that, Ex.P-33 is recorded, in the first instance, by PW-20-ASI and it is significant that the said statement is in the form of a complaint and the signature of the deceased has been obtained on Ex.P-33 which is marked as Ex.P-33(a) whereas Ex.P-28 which is recorded by the Tahsildar and Taluka Executive Magistrate in the 'question-answer' format, does not bear the :9: signature of the deceased apparently, on the footing that she was incapable of signing or placing her left thumb impression which could not be obtained as it was completely burnt and therefore impression of her left big toe has been taken. This is a glaring circumstance which would indicate that there is a contradiction in terms as to the deceased being capable of affixing her signature on one document and later it being shown that she was not capable of even putting her thumb impression as her hand had suffered burn injuries and hence impression of the toe having been taken. This would lead to a presumption that Ex.P-33 is a got up document clearly intending to frame the accused on the basis of assumed guilt of the accused and hence each of these documents namely Ex.P-28 and Ex.P-33 would cancel out each other, as it were, as both documents are not free of suspicion and hence would contend that that the court below was in error in relying upon these two documents and seeking to reconcile the same when there are in total contradiction with each other in the circumstances aforesaid. Hence, the court below was not justified in convicting the : 10 : accused and hence the circumstantial evidence sought to be set up against the appellant would not clearly establish the charges against the accused and the accused certainly would have the benefit of doubt in the prosecution having failed to establish the alleged guilt of the accused and seeks his acquittal.
9. The learned Additional State Public Prosecutor on the other hand would seek to justify the judgment of the trial Court and would point out that the primary argument on the grounds raised in the appeal and as canvassed by the learned counsel for the appellant is that no reliance could be placed either on Ex.P-28 or Ex.P-33 when the two documents are claimed to be dying declarations the same cannot be reconciled and in view of such contradiction both the documents sought to be negated, is a contention which may not be available to the counsel for the appellant. It is contended that such a situation has been addressed by the Supreme Court in the case of Ashabai v. State of Maharashtra ((2013) 2 SCC 224) which was a case involving 4 dying declarations and the Supreme Court having addressed evidentiary value of dying declarations : 11 : and on addressing contentions raised therein that the version of the incident as given by the deceased in all the 4 dying declarations being insconsistent and that no reliance could be placed, on the facts of that case, the Supreme Court has found that the victim was consistent as regards the role played by the mother-in-law and sister-in-law, who were the appellants before the Court and as regards the legal position of the evidentiary value of the dying declaration has drawn attention to Section 32 of the Evidence Act, 1872, and as has opined that there is no form or procedure prescribed for recording a dying declaration nor is it required to be recorded only by a Magistrate. As a general Rule, it is advisable to get it certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is further held that it is well settled that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind : 12 : that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination and that the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other.
10. It is noticed on this note that the supreme Court has expressed as to how multiple dying declarations should be addressed and therefore, the learned Additional State Public Prosecutor would contend that it would be erroneous to hold that Ex.P-28 and Ex.P-33 if found to be inconsistent should be : 13 : negated and not taken into account. On the other hand, as held by the Apex Court, the veracity of each dying declaration should be examined or assessed and evaluated independently and it is that dying declaration which would stand the test of such scrutiny which could safely be accepted and would form the basis for conviction.
11. Accordingly, he would submit that even if Ex.P-28 is eschewed as being in the nature of a statement or a complaint, the question-answer format in which Ex.P-33 is recorded is certainly acceptable as it is recorded by the Taluka Executive Magistrate after following the procedure prescribed and is duly certified by the medical practitioner and there is no reason to suspect or dislodge the same. Hence, he would submit that the judgment of the court below be affirmed.
12. In the circumstances as aforesaid and having regard to the settled legal position of law, the fact that there is some inconsistency in Ex.P-28 being duly singed by the deceased and Ex.P-33 where the big toe impression of the left : 14 : foot of the deceased is taken on the dying declaration possibly on the ground that the deceased was not in a position to put her left thumb impression or her signature, as her hands were seriously burnt. Even if this aspect is to be accepted that the deceased was not capable of affixing her signature and therefore Ex.P-28 would be a suspicious document of having been created only to frame the accused, therefore, cannot dislodge the veracity or the acceptance of Ex.P-33 and when it is the settled law that a dying declaration by itself would be sufficient for conviction of the accused, we have no hesitation in affirming the judgment of the trial Court and dismissing this appeal.
Accordingly, the appeal is dismissed.
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JUDGE Sd/-
JUDGE kmv