Karnataka High Court
Sanjeevareddy vs Mruthyunjaya Channabasappa Magadi on 28 November, 2016
Bench: Ravi Malimath, K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 28TH DAY OF NOVEMBER, 2016
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL No.2831 OF 2011 [A]
BETWEEN:
SANJEEVAREDDY
S/O LATE MAHADEVAPPA MAGADI
AGED 25 YEARS,
R/O MAROL, HAVERI TALUK,
HAVERI DISTRICT - 581128
... APPELLANT
(By Sri. K V NARSIMHAN ADV.)
AND:
1. MRUTHYUNJAYA
CHANNABASAPPA MAGADI
AGED ABOUT 35 YEARS,
R/O MAROL, HAVERI TALUK,
HAVERI DISTRICT.
2. SRI FAKIRADDI
BASAVARADDI HALLEPPANAVAR
AGED ABOUT 30 YEARS,
R/O KOKKARAGONDI
HAVERI TALUK,
HAVERI DISTRICT.
3. SRI SHANKARADDI
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HEMARADDI YARAGUPPI
AGED ABOUT 27 YEARS,
R/O KOKKARAGONDI,
SHIRAHATTI TALUK,
GADAG DISTRICT.
4. SRI BHOMARADDI
BASAVARADDI HALLEPPANNAVAR
AGED ABOUT 30 YEARS,
R/O KOKKARAGONDI,
SHIRAHATTI TALUK,
GADAG DISTRICT.
5. SRI BASAVARADDI
THIPPANNA HALLEPPANNAVAR
AGED ABOUT 56 YEARS,
R/O KOKKARAGONDI,
SHIRAHATTI TALUK,
GADAG DISTRICT.
6. SRI HEMARADDI
NINGARADDI YARAGUPPI
AGED ABOUT 40 YEARS,
R/O KOKKARAGONDI,
SHIRAHATTI TALUK,
GADAG DISTRICT.
7. SRI SUBBARADDI
NINGARADDI YARAGUPPI
AGED ABOUT 35 YEARS,
R/O KOKKARAGONDI,
SHIRAHATTI TALUK,
GADAG DISTRICT.
8. SRI NINGARADDI
TIRAKARADDI HADIMANI
AGED ABOUT 30 YEARS,
R/O MAROL, HAVERI TALUK,
HAVERI DISTRICT.
9. SRI DEVARADDI
HEMARADDI RADDERA
AGED ABOUT 30 YEARS,
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R/O MAROL, HAVERI TALUK,
HAVERI DISTRICT.
10. THE STATE OF KARNATAKA,
BY CIRCLE INSPECTOR,
HAVERI RURAL CIRCLE, HAVERI,
BY SPP.
... RESPONDENTS
(By Sri. K L PATIL ADV. AND
SRI.ARAVIND D.KULKARNI, ADV. FOR R1-R5 & R7-R9;
APPEAL ABATED IN RESPECT OF R6;
SRI.V.M.BANAKAR, ASSP FOR R10)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CRIMINAL PROCEDURE CODE SEEKING TO SET ASIDE THE
JUDGMENT OF ACQUITTAL OF RESPONDENTS, DATED
14.06.2006 PASSED IN SESSIONS CASE No.59 OF 2002 BY THE
LEARNED DISTRICT AND SESSIONS JUDGE, HAVERI AND TO
CONVICT AND SENTENCE THEM.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, RAVI MALIMATH, J. DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution is that on 19th January 2002, the accused and the deceased had quarreled in respect of the land. That a life threat was given by accused No.1 to the deceased. On the same night, the deceased had gone to Kerekoppa village to attend Vemana Jayanti function. When he returned to Marol village after midnight along with PW-23 on a motorcycle, the accused with a common object of committing his murder, caused severe injuries to PWs-1 to 3 and also assaulted the deceased. The :4: deceased and the injured were shifted to the hospital, wherein the deceased succumbed to the injures.
2. Based on the same, a case was registered against ten accused for the offences punishable under Sections 143, 147, 148, 504, 506, 324, 326 and 302 read with Section 149 of the Indian Penal Code in Crime No.3 of 2002. Investigation was taken up; charges were framed against the accused; they pleaded not guilty.
3. In order to prove its case, the prosecution examined thirty-six witnesses and marked thirty-six documents along with fifteen material objects. Accused No.9 died during the pendency of the trial. The remaining accused were acquitted of the offences alleged against them. Aggrieved by the same, PW-2--one of the injured eye-witnesses has approached this Court. Initially the same was filed as Criminal Appeal No.1565 of 2006. By the order dated 10th August 2007, the appeal was directed to be converted into a Criminal Revision Petition. By the order dated 12th October 2011, based on the preliminary objection with regard to memo of conversion of the Criminal Revision Petition into a :5: Criminal Appeal, the appellant was permitted to convert the revision petition into an appeal. The same was challenged before the Hon'ble Supreme Court by the appellant in Criminal Misc. No.8112 of 2013. By the order dated 22nd April 2013, the same was dismissed. Hence, the same remained as an appeal. The respondent No.6--accused No.6 died during the pendency of these proceedings.
4. Sri.K.V.Narasimhan, learned counsel appearing for the appellant, submits that the judgment of the trial court is erroneous and interference is called for. That there are eye-witnesses to the incident, namely PWs-1 to 3. The trial court has failed to consider their evidence in the right perspective. That the trial court did not appreciate the dying declaration of the deceased in terms of Ex.P- 20 in the right perspective. That the principles enunciated by the Hon'ble Supreme Court in appreciation of the dying declaration have not been followed. That if the dying declaration is properly considered, the same would have ended in the conviction of the accused. He further pleads that the statement of the injured eye- witnesses with regard to the assault on them has also not been :6: considered properly. That the accused are also liable for being convicted for the offences punishable under Sections 324 and 326 of the Indian Penal Code. Hence, he pleads that the appeal be allowed and the accused be convicted of the offences.
5. Sri.K.L.Patil, learned counsel appearing for respondents 1 to 5 and 7 to 9 defends the same. He firstly, contends that it is an appeal against the order of acquittal. Therefore, the appellate court is not expected to reconsider the entire evidence. That the principles governing an appeal against the order of acquittal requires to be complied with. Even otherwise, the trial court has rightly considered the entire evidence and material on record. The prosecution's case is faulty inasmuch as it has failed to establish its case beyond all reasonable doubts. So far as the dying declaration/Ex.P-20 is concerned, the same is not in conformity with law. It has not been recorded to the satisfaction of the trial court. On failing to do so, the trial court has rightly acquitted the accused. So far as the offence punishable under Section 302 of the Indian Penal Code is concerned, there are material inconsistencies in the case of the prosecution. That the wound :7: certificates do not indicate any grievous injuries. Even so far as the offence punishable under Section 324 of the Indian Penal Code is concerned, there is no evidence brought home by the prosecution to prove its case. Hence, he sought for dismissal of the appeal.
6. Sri.V.M.Banakar, learned Additional State Public Prosecutor, on the other hand, submits that the trial court should have been most circumspect in appreciating Ex.P-20. That even though the trial court has recorded its reasons to reject Ex.P-20, but it does not appear to satisfy the requirements of law.
7. Heard learned counsels and examined the records.
8. PW-1 is the wife of the deceased. PWs-2 and 3 are her sons. PW-1 has narrated in her evidence that her husband used to contest for elections and since, he was a leader, he had lots of friends and lots of enemies. There was a family dispute with accused No.2. They were not on cordial terms. That on the date of the incident, she heard a lot of galata and went to the spot along with PWs-2 and 3. They saw that the accused were :8: assaulting her husband and she was pulled away by accused Nos.5 and 7. Her sons went away apprehending assault. Thereafter, she informed the police and her brother about the incident over telephone. The police came to the spot after one hour. That they came in a police jeep. When the police had come to the spot, neither the Police Inspector nor other police officials asked her or her sons about the incident. Her husband had lost consciousness. The police gave water to her husband and thereafter, he regained consciousness. When he regained consciousness, the police enquired with him with regard to the incident. They did not record any statement. Thereafter, the deceased along with the injured were shifted to the hospital at Guttal. Therein the statement of the deceased was recorded. The same was regarded as complaint in terms of Ex.P-20. Thereafter, he was shifted to the Civil Hospital at Haveri. On his death, the same was treated as dying declaration.
9. PWs-2 and 3, the children of the deceased have also narrated about the incident. PW-2 has stated that there were cases filed against his father. He has stated that as on the date of :9: the incident, the police enquired about the same and his brother about the incident. They narrated the same to the police. It was reduced into writing. They were on the spot for about half an hour. He has stated about the recording of the statement of his father in the hospital.
10. PW-3 has stated that soon after the incident, the police came in a van and all the accused ran away by throwing the clubs in their house. That when some persons came in a tractor, the accused have threatened them by stating that the deceased would be assaulted.
11. PWs-4 and 5 are eye-witnesses. They have partly supported the case of the prosecution and have denied the rest of the case. Hence, they were treated as hostile. PW-6 is another alleged eye-witness who has turned hostile. PWs-7 and 8 are the panchas to inquest. PWs-9 and 10 are the panchas to the spot mahazar/Ex.P-5 and seizure panchanamas/Exs.P-6 & 7 in respect of MOs-2 to 8 and MOs-9 to 13 respectively. They have also turned hostile. PWs-11 and 12 are also alleged eye-witness : 10 : who have turned hostile. PW-13 is the driver of the tractor, who has also turned hostile. PWs-14 to 17 are also witnesses who have not supported the case of the prosecution. PWs-18 to 21 spoke about the previous enemity between the deceased and accused No.1. They spoke about the motive for commission of the offence. They too have not supported the case of the prosecution. The evidence of PW-22 is not relevant to the case of the prosecution. He has only narrated with regard to attending the Vemana Jayanti prior to the incident. PW-23 is said to be the eye-witness who has also turned hostile. PW-24 is the driver of the Matador van who took the deceased to Haveri from Guttal Hospital. PW-25 is the Head Constable who took the first information report to the Magistrate. PW-26 is the Head Constable who recorded the dying declaration. PW-27 is the doctor who has issued the wound certificate of PWs-1 and 2. PW-28 is the doctor who conducted the post-mortem and issued the injury certificate of PW-3. PW-29 is the Station House Officer who recorded the phone call of the incident. PW-30 is the Police Constable who took the articles to Forensic Science : 11 : Laboratory. PW-31 is the Assistant Sub-Inspector of Police who apprehended the accused Nos.5 and 7 and produced them before the Court. PW-32 is the Police Sub-Inspector who registered the case and was also present when the dying declaration was recorded. He has also conducted part of the investigation. PW- 33 is the Circle Police Inspector, who conducted the rest of the investigation and filed the charge-sheet. PW-34 is the officer of the KPTCL who has given evidence with regard to the existence of electric light at the time of the incident in terms of his report / Ex.P-32. PW-35 is the Head Constable who apprehended the accused Nos.1 to 3 and 8 to 10. PW-36 is the Assistant Engineer of the Public Works Department, who prepared the sketch of scene of offence as per Ex.P-34.
12. The trial court disbelieved the evidence of PWs-2 and 3 with regard to assault on the deceased and PWs-1 to 3 as being inconsistent with the evidence of PW-1. The evidence of PW-1 would narrate that her sons PWs-2 and 3 came to the scene of offence after the incident occurred. PWs-2 and 3 both have narrated in their evidence that they heard the cry from their : 12 : mother and when they came to the scene of offence, they found that the accused were assaulting their father. Therefore, there is substantial inconsistency insofar as the evidence of PWs-2, 3 and PW-1 is concerned with regard to the assault on the deceased and PWs-1 and 2 is concerned.
13. Therefore, the acquittal of the accused with reference to the offences punishable under Sections 143, 147, 148, 324, 326, 504 and 506 read with Section 149 of the Indian Penal Code by the findings recorded by the Sessions Court appears to be just and proper. We do not find any good ground to reverse the said order of acquittal of the accused so far as these offences are concerned.
14. However, so far as acquittal of the accused for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code is concerned, we are of the considered view that the same requires to be reconsidered. Ex.P-20 is a dying declaration. PW-1/wife of the deceased has narrated that when the incident took place, her husband was assaulted by the accused. : 13 : She informed her brother as well as the police. Thereafter, the police came to the scene of offence. They enquired as to what happened but did not record anybody's statement. Subsequently, the deceased and PWs-1 to 3 were shifted to Guttal Hospital. The statement of the deceased was recorded. PW-32/the Police Sub-Inspector was asking questions to the deceased and the answers that he was giving was recorded by PW-26/Head Constable. That the recording of statement of the deceased was done only after the doctor / PW-27 was asked whether the deceased was in a position to make his statement and whether he was conscious or not. PW-27 has narrated that he has examined the deceased and found him to be in a fit condition to record the statement. Only after the doctor has stated so, that his statement was recorded on the questioning by PW-32 and it was recorded by PW-26. The Sessions court considered the evidence of PW-26 in paragraphs 49 and 50 of its judgment. In considering the evidence of PW-27, namely the doctor, the trial court was of the view that in Ex.P-20, there is a signature of PW-27 and he has also stated that "Statement recorded before me". The trial court : 14 : observed that there is no specific endorsement in Ex.P-20 to the effect that PW-27 has tested the deceased and found him to be in a fit condition to give statement. Therefore, it was of the view that merely saying that the statement was recorded before him is not sufficient. That the doctor should have specifically stated that the deceased was in a fit condition to record the statement. Such an endorsement or such a certificate being absent, the said document cannot be accepted.
15. The learned counsel for the appellant in support of his case has relied on the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Versus Dal Singh and others reported in AIR 2013 SC 2059, with reference to paragraphs 12 to 14 of the said judgment. The Hon'ble Supreme Court therein by referring to its earlier judgments in the case of Govindappa and others Versus State of Karnataka reported in (2010) 6 SCC 533 and State of Punjab Versus Gian Kaur and another reported in AIR 1998 SC 2809, held that the dying declaration must be given due weightage in evidence. That the law does not provide any prescribed form, format, or procedure. : 15 : That it is an essential rule of caution and prudence and therefore, the dying declaration must be tested on the same. That the person who records a dying declaration must be satisfied that the maker is in a fit state of mind and capable of making such a statement. That the requirement of a certificate provided by a doctor is not essential in every case. The learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Surinder Kumar Versus State of Punjab, reported in 2012 (12) SCC 120 with reference to paragraphs 16 to 19. Therein the Hon'ble Supreme Court referred to its various earlier judgments on the said issue and held that it is a mere rule of prudence and not the ultimate test as to whether or not a dying declaration was truthful or voluntary.
16. Relying on these judgments, it was contended that the doctor has opined with regard to the mental state of the deceased and that he is in a fit state to give statement. Based on the same, the statement was recorded. Therefore, to discard the same only on the ground that there was no certificate issued by the doctor is inappropriate.
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17. On the other hand, Sri.K.L.Patil, learned counsel appearing for the respondents, relies on the judgment of the Hon'ble Supreme Court in the case of Paparambaka Rosamma and others versus State of Andhra Pradesh, reported in 1999 Crl.L.J. 4321 (SC), with reference to paragraphs 8 to 10 and contends that the doctor should state that the injured was in a fit state of mind to make a statement. If it is not done, it would be very risky to accept the subjective satisfaction of a Magistrate to the said effect.
18. He further places reliance on the judgment of the Hon'ble Supreme Court in the case of State of Gujarat Versus Jayrajbhai Punjabhai reported in AIR 2016 SC 3218 with reference to paragraphs 10 and 11 of the judgment to contend that a dying declaration cannot be accepted only because it is a dying declaration. The Court has to weigh all the attendant circumstances and come to an independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful or not. Hence, he submits that the : 17 : exercise having been done by the trial court, no interference is called for.
19. We have considered the contentions as well as the decisions on the point in depth. We have also considered the reasoning assigned by the Sessions Court while considering Ex.P-
20. We are of the considered view that the entire case of the prosecution would fulcrum on Ex.P-20. The same is a dying declaration. The manner in which the dying declarations have to be recorded and the manner in which it is to be considered by the courts of law, need not be stated once again.
20. The material on record would indicate that the Police Sub-Inspector / PW-32 enquired with the doctor as to whether the deceased was in a fit condition to make a statement. On being so questioned, the doctor/PW-27 examined the deceased and thereafter, stated that the deceased was in a fit condition to give a statement. Thereafter the Police Sub-Inspector / PW-32 asked questions to the deceased. He gave the answers which was recorded in writing by PW-26. At the end of recording of the : 18 : dying declaration, the doctor has written "Statement recorded before me". It is here the learned Sessions Judge, in our considered view, committed an error in discarding Ex.P-20. The learned Sessions Judge was of the view that in Ex.P-20, it is not specifically endorsed by PW-27 that he tested the deceased and found by him to be in a fit condition to give a statement. Therefore, the learned Sessions Judge expected that such a statement has to be written in the document in order that the dying declaration be accepted. Merely stating that the statement has been recorded before me is insufficient.
21. Placing reliance on the aforesaid judgments, we are of the considered view that the findings recorded by the learned Sessions Judge is incorrect. That is not the position of law. The Hon'ble Supreme Court have reiterated this position in the case of State of Gujarat versus Jayrajbhai Punjabhai reported in AIR 2016 SC 3218, in paragraphs 10 and 11 wherein they have held as follows:
"10. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not : 19 : available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. ....
11. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned."
22. It is herein we find fault with the appreciation of evidence by the learned Sessions Judge. That the learned Sessions Judge had to be extremely careful while dealing with Ex.P-20. We : 20 : are unable to accept the reasoning of the trial judge that there has to be a statement or a certificate issued by the doctor with regard to his mental ability and capacity to make a statement. We are guided by the judgments of the Hon'ble Supreme Court wherein, time and again, it has been reiterated that there is no such rule that the doctor must issue a certificate to the said effect or the doctor must necessarily state in writing that the injured was in a fit position to give a statement. It is a matter of prudence, which means that the Courts would have to examine the material and evidence on record and satisfy itself as to whether such a statement was voluntary and truthful. If it is satisfied with such a test, nothing else remains for the prosecution to establish the validity of the dying declaration.
23. On considering the reasons assigned by the trial court, we have no hesitation to hold that such an exercise was not done by him. That he has merely proceeded to reject Ex.P-20 / dying declaration since there was an absence of certification by the doctor with regard to the same. We reiterate that such a certification, as held even by the Hon'ble Supreme Court, is not : 21 : necessary in order for the prosecution to prove that it is a valid dying declaration. We would like to make ourselves very clear to the effect that we have not gone into the validity, the contents or otherwise of Ex.P-20. Whether Ex.P-20 is to be accepted or not, is the discretion of the learned Sessions Judge to be exercised in the manner prescribed by law as well as the judgments of this Court and the Hon'ble Supreme Court. It is only due to the fact that we find that the Sessions Judge has not applied his mind in order to test Ex.P-20 with reference to the evidence of PWs-26 and 27 and 32, that the findings recorded by him on Ex.P-20 therefore cannot be sustained. The learned Sessions Judge has to follow the manner and procedure to be adopted in appreciating the dying declaration. Therefore, it is only just and appropriate that the learned Sessions Judge reappreciates the material and applies the principles of law as enunciated in the judgments of this Court as well as the Hon'ble Supreme Court and thereafter, test the validity of Ex.P-20.
24. Further, the reasoning that the doctor PW-27 was present when the dying declaration was recorded was not : 22 : accepted by the trial court, in view of the fact that he was also treating PWs-1 and 2 at the same time. The learned Sessions Judge found that to be highly doubtful. We are unable to accept such a reasoning. It is anybody's guess that a doctor is capable of treating more than one patient at a given point of time. Only because he was treating PWs-1 and 2 does not mean that he was not aware of the statement of the deceased also. Therefore, the dying declaration should not be accepted is an erroneous finding recorded by the learned Sessions Judge. This finding too requires to be reversed.
25. The charge under Section 302 of the Indian Penal Code is only relatable to accused Nos.1, 3 and 8. As held herein above, we have confirmed the judgment of the trial court so far as other offences viz. offences punishable under Sections 143, 147, 148, 324, 326, 504 and 506 read with Section 149 of the Indian Penal Code are concerned with reference to the accused. The judgment of acquittal in this regard is upheld. : 23 :
26. However, so far as the offences under Section 302 read with Section 149 of the Indian Penal Code is concerned, the charge is only against accused Nos.1, 3 and 8. Therefore, the learned Sessions Judge would have to reconsider the matter afresh so far as these three accused are concerned.
27. For the aforesaid reasons, we pass the following order:
ORDER
(i) The appeal is partly allowed.
(ii) The judgment of acquittal dated 14th June 2006 passed in Sessions Case No.59 of 2002 by the learned Sessions Judge, Haveri, so far as the offences punishable under Sections 143, 147, 148, 324, 326, 504 and 506 read with Section 149 of the Indian Penal Code is affirmed;
(iii) The judgment of acquittal under Section 302 read with Section 149 of the Indian Penal Code is set aside so far as accused Nos.1, 3 and 8 are concerned. The matter is remanded to the Sessions Court to record a finding with regard to Ex.P-20 based on the aforesaid directions;
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(iv) The learned Sessions Judge to re-appreciate the available evidence on record and thereafter record a finding vis-à-vis the offence punishable under Section 302 read with Section 149 of the Indian Penal Code so far as accused Nos.1, 3 and 8 are concerned;
(v) The accused shall appear before the learned Sessions Court on 16th December 2016;
(vi) The trial court to hear and dispose off the matter in accordance with law by the end of March 2017.
Sd/-
JUDGE Sd/-
JUDGE RK/-