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2004 DIGILAW 67 (KAR)

Ganapati @ Ganapayya Naik v. State of Karnataka

2004-01-27

MOHAN M.SHANTANAGOUDAR, S.R.BANNURMATH

body2004
JUDGMENT S.R. Bannurmath, J.--This appeal has been filed by the accused/Appellant challenging the judgment of conviction dated 17th October, 2000 passed in Session Case No. 96 of 1999 on the file of the learned Sessions Judge, Uttara Kannada at Karwar holding the accused guilty of the offences punishable under Sections 498A and 302 IPC. 2. The facts leading to the present appeal as per the prosecution case are as follows: The Appellant/accused - Ganapati alias Ganapayya Naik is a resident of Hegdekatta in Sirsi Taluk. As per the prosecution case four years prior to 1999 (year of the incident) the accused had married the deceased Hemavati - daughter of Smt. Leelavati - P.W.2 and Narayan - P.W.3. Out of this wedlock, they had two young children and on the date of incident the deceased was on her way of having the third child. According to the prosecution, the accused who was well-to-do arecanut merchant was always on travel and of late had started suspecting the fidelity of his wife the deceased. As per the prosecution case because of this suspicion the accused started ill treating the deceased both mentally and physically and in fact the deceased and her parents had to take recourse to the Police help and even the help of village elders. It is alleged that inspite of repeated assurances, the accused did not mend his way. On the fateful night of 15.4.1999 at about 9.30 p.m. he not only assaulted Hemavati but also set her on fire by pouring kerosene on her. Attracted by the cries of Hemavati, the neighbours including P.W.4 Mohammed Sab Abdul Khader arrived at the spot, saw Hemavati fallen on the ground with burns all over and the accused standing there. After dousing the fire it is stated that the neighbours and the accused took Hemavati to the hospital at Sirsi and thereafter for better treatment to the KMC Hospital at Hubli. Hemavati lived up to 21.4.1999 and on that day succumbed to the injuries due to septicaemia. 3. In the meanwhile, P.W.1 - Subray, maternal uncle of the deceased who also came to know about the incident at about 10.45 p.m. went to the hospital saw Hemavati sustaining burning injuries and thereafter on 16.4.1999 at about 11.15 a.m. lodged his first information involving the accused in crime. 3. In the meanwhile, P.W.1 - Subray, maternal uncle of the deceased who also came to know about the incident at about 10.45 p.m. went to the hospital saw Hemavati sustaining burning injuries and thereafter on 16.4.1999 at about 11.15 a.m. lodged his first information involving the accused in crime. P.W.11 - Maruthi, the P.S.I. of Sirsi Rural Police Station on receipt of the written complaint registered a case in Crime No. 68 of 1999 initially for the offence under Section 498A (a) IPC., and took up the investigation. It is to be noted that after the death of Hemavati on 21.4.1999 for the offence under Section 302 IPC., was also incorporated.P. Ws. 11, 12 and 15 - the Police Officials took up the investigation. 4. According to the prosecution on 16.4.1999 on seeing that Hemavati was in a fit condition to give statement about the incident, P.W.9 - Maharudrappa, Taluka Executive Magistrate was summoned to the hospital. At the hospital after verifying with the doctor, P.W.9 proceeded to record the dying declaration of Hemavati as per Ex.P.8. During the investigation, the investigating team also recorded the statements of various people including the neighbours, parents and relatives of the deceased. After the death, the body was subjected for autopsy. On completion of the investigation and receipt of all the reports, charge sheet came to be filed against the accused for the offences punishable under Sections 498A and 302 IPC. 5. In order to establish the guilt of the accused, the prosecution has relied upon the evidence of 14 witnesses, Exs.P.1 to 13(b) and M. Os. 1 to 5. Apart from the total denial of prosecution case, the accused has also given written statement under Section 313 Code of Criminal Procedure interalia contending that he is innocent, that he has been falsely implicated at the behest of P. Ws.2 and 3; that the fire caught by the deceased Hemavati was accidental and in fact when he tried to rescue her, he too got burn injuries on his person. 6. As noted earlier, after appreciation of the entire evidence, the trial Court found the accused guilty of the offence punishable under Sections 498A and 302 IPC., and sentenced him to undergo R.I. for 2 years with fine of Rs.500/- with default sentence as well as imprisonment for life respectively. Hence, the present appeal. 7. 6. As noted earlier, after appreciation of the entire evidence, the trial Court found the accused guilty of the offence punishable under Sections 498A and 302 IPC., and sentenced him to undergo R.I. for 2 years with fine of Rs.500/- with default sentence as well as imprisonment for life respectively. Hence, the present appeal. 7. Sri P.M. Jalistgi, the learned Counsel for the Appellant vehemently challenged the judgment of conviction interalia contending that the appreciation of evidence by the trial Court is not only illegal but also perverse one. He contended that there is basically an inordinate delay in lodging the complaint and this is obvious that this delay been utilised by the prosecution witnesses especially the close relatives of the deceased - P. Ws.1 to 3 to deliberate for filing false complaint involving the accused with the alleged crime. The learned Counsel also challenged correctness of the finding of the trial Court as to the alleged dying declaration made by the deceased Hemavati which is the trump card of the prosecution. He contended that taking into consideration the fact that the deceased Hemavati had received almost 93 percent of burns all over the body and even aborted a foetus of 81/2 months in the process, would definitely indicate that she was not only in great pain and suffering but also as witnesses after witness have admitted unconscious. He contended that in such a condition she could not have made the dying declaration within few hours of the incident. In this regard, he has also commented upon the contradictions, improbabilities from the evidence of the doctor, Taluka Executive Magistrate and others to contend that a consorted effort has been made by the prosecution, Investigating Agency and the relatives of the deceased to falsely implicate the accused. He submitted that P. Ws.2 and 3 the parents of the deceased were ill disposed towards him due to the earlier thefts committed by them in the house of the accused for which the accused had lodged the complaint and as such taking the advantage of the unnatural death of Hemavati, they have foisted a false case against him. He submitted that P. Ws.2 and 3 the parents of the deceased were ill disposed towards him due to the earlier thefts committed by them in the house of the accused for which the accused had lodged the complaint and as such taking the advantage of the unnatural death of Hemavati, they have foisted a false case against him. He also contended that the dying declaration is not above suspicion in as much as there is every possibility as the cross-examination of the witnesses indicate that either Hemavati did not make such statements at all or even if it is assumed that she made a statement, it was tutored one. Hence, he submitted that as the dying declaration is not above suspicion, the same ought not to have been relied upon by the trial Court to find the accused guilty. 8. He contended that in the absence of the dying declaration there is absolutely no material for the prosecution to even indicate that the accused had any intention to murder his wife and he did it. On these among other grounds, the learned Counsel contended that the judgment of conviction is liable to be set aside and the accused be acquitted of all the charges. 9. On the other hand, Sri Marigowda, the learned Additional State Public Prosecutor appearing for the Respondent/State argued in support of the findings of the trial Court as well as the prosecution case. 10. We have heard the learned Counsel at length and perused the entire evidence in detail. 11. At the outset the fact that Hemavati died of unnatural death by burning is not much in dispute. Even otherwise the evidence of P. Ws.1 to 3 the close relatives of the deceased, statement of P.W.4 - the neighbour, evidence of P.W.7 the inquest panch and more specifically the evidence of the doctors - P. Ws. 8, 13 and 14 as well as that of Taluka Executive Magistrate - P.W.9 clearly indicate that Hemavati had received burn injuries all over the body on 15.4.1999 and she breathed her last on 21.4.1999. But the main question are (a) Whether the death was homicidal amounting to murder or not; (b) if it was homicidal amounting to murder, whether the prosecution proves beyond the reasonable doubt that it was the accused who is the culprit. 12. But the main question are (a) Whether the death was homicidal amounting to murder or not; (b) if it was homicidal amounting to murder, whether the prosecution proves beyond the reasonable doubt that it was the accused who is the culprit. 12. As noted earlier according to the prosecution it was the accused who poured the kerosene and set the deceased on fire whereas by way of written statement under Section 313 Code of Criminal Procedure the accused had attributed the cause for accidental burning. The learned Counsel for the Appellant has also pointed out and argued as to the possibility of suicidal death also. From the evidence of the doctors, P.W.8 who has first seen the deceased and treated her at Sirsi Hospital and the evidence of P.W.12, P.W.13 - Dr. Jagadish and P.W.14 - Dr. Govind Raju clearly show that Hemavati had received almost 93 percent of burns all over her body in the night of 15.4.1999. It also discloses that she had aborted a foetus of 81/2 months age due to burn injuries but the primary question is whether the burn was accidental, suicidal or homicidal one. The prosecution's case so far as the alleged death is concerned revolves around the dying declaration - Ex.P.8 made by the deceased Hemavati before the Taluka Executive Magistrate - P.W.9; oral dying declaration alleged to have been made by the deceased before her parents - P. Ws.2 and 3 as well as a neighbour P.W.4. It is to be noted that though the prosecution wants to believe that the accused poured kerosene on Hemavati and set her on fire, none of the doctors including P. Ws.8 and 14 who first saw Hemavati with burn injuries speak about any kerosene smell emitting from the body. Even the autopsy doctor - P.W.13 is totally silent about the same. P.W.9 the Taluka Executive Magistrate has also not noted or spoken specifically as to the injured body of Hemavati was giving smell of any kerosene. In our view, smelling kerosene on the body of Hemavati was a natural phenomenon, if really she was set on fire after pouring of kerosene on her person or in an attempt to commit suicide. P.W.9 the Taluka Executive Magistrate has also not noted or spoken specifically as to the injured body of Hemavati was giving smell of any kerosene. In our view, smelling kerosene on the body of Hemavati was a natural phenomenon, if really she was set on fire after pouring of kerosene on her person or in an attempt to commit suicide. Even assuming whether suicidal or homicidal, absence of any kerosene on her person especially in the light of the defence version of suicidal death, we are unable to definitely hold beyond doubt that the burn injuries on Hemavati, was as a result of homicidal attempt on the part of the accused and as such, cannot definitely hold that the cause of death namely the burn and the resultant septicaemia was only due to kerosene pouring and setting fire to it. 13. Even assuming that the burn injuries on Hemavati were caused by kerosene, even then we have to find out whether the prosecution has succeeded in showing that the kerosene was poured by the accused himself so as to eliminate the possibility of suicidal or accidental fire also. Here again the prosecution totally relies upon the dying declaration of the deceased. As such it is necessary for us to find out whether the dying declaration Ex.P.8 recorded by the Taluka Executive Magistrate P.W.9 is reliable and more specifically beyond reasonable doubt. As we have already noted the deceased Hemavati had suffered 93 percent burns all over the body. As the doctors - P. Ws.8, 13 and 14 have spoken to as well as the post mortem report - Ex.P.12 indicates the burns were practically all over her body including the face region, according to the doctors the face was totally burnt. If that is so, we have to find out as to whether there was any possibility of Hemavati giving out the dying declaration. As rightly pointed out by the learned Counsel for the Appellant, the dying declaration - Ex.P.8 is full of masteries and doubts. According to the witnesses that too the parents of the deceased - P. Ws.2 and 3 and the neighbour - P.W.4 immediately after the burn injuries in the house till she was taken initially to the Sirsi Hospital and then to KMC Hospital, Hemavati was not conscious. According to the witnesses that too the parents of the deceased - P. Ws.2 and 3 and the neighbour - P.W.4 immediately after the burn injuries in the house till she was taken initially to the Sirsi Hospital and then to KMC Hospital, Hemavati was not conscious. According to the prosecution it is only on 16.4.1999 at about 2.00 p.m. or so she regained consciousness and gave the statement to the Taluka Executive Magistrate involving the accused with the crime. On perusal of the evidence we find that there is lot of contradictory nature of evidence in respect of time factor as to when Hemavati regained conscious. This doubt is created in our mind since the evidence of P. Ws.2, 3, 8 and 14 shows that Hemavati regained consciousness around 2.00 p.m. and it was only thereafter Police sent requisition to P.W.9 - the Taluka Executive Magistrate to come over and record the statement of the injured. It is to be noted that the dying declaration recorded by P.W.9 is at Ex.P.8 and bears the time showing that the same was recorded between 2.15 and 2.40 p.m. on 16.4.1999. According to the Magistrate after he came to the hospital around 2.00 p.m., he requested the duty doctor - P.W.14 to find out the capacity and capability of Hemavati to make statement. According to the prosecution P.W.14 the duty Doctor issued a separate certificate at Ex.P.7 indicating the fitness condition. It is to be noted here itself that the dying declaration Ex.P.8 does not bear any such certificate as to the fitness condition of the deceased, on the other shows the signature of the doctor only to the fact that the statement was taken in his presence. Nodoubt it is true that as per the recent judgments of the Apex Court and this Court in this regard are to the effect that even if certification is not there or if it is found not in contemporaneous document as to the fitness condition of the patient, the same can be used against the accused and as such Ex.P.7 the alleged certificate issued by the doctor P.W.14 has to be looked into. On reading of the entire document - Ex.P.7 it appears to be a requisition sent to the doctor by the Police of Vidyanagar Police Station (not the Investigation Officer) to give doctor's evaluation as to the condition of Hemavati, of which P.W.14 has just noted "patient is fit to give statement". In our view this is totally insufficient material or certification. Mere saying that the 'patient is fit' is not the requirement or indicative of the fact that Hemavati was fit both mentally or physically to give statement. That part even time factor noted by the doctor while giving such certification also creates much doubt about the genuineness of this certificate. Immediately after the signature of the doctor below the so-called fitness certificate he has noted the time as 12-00 p.m. As normally the time 12.00 in the day time is referred to as 12 noon or night it is 12 midnight. Noting of 12 p.m. leaves us nowhere as it may be at 12 noon or 12 mid night. If it is 12 mid night then the base of the prosecution that alleged fitness condition is taken away. If it is 12 noon even then the evidence of P.W.8 falls short of genuineness because according to him he came to the hospital at 2.00 p.m. and immediately thereafter summoned the duty doctor - P.W. 14 to issue fitness certificate. We do not know as to what prompted the doctor - P.W.14 to give such certificate at 12 noon itself. It is also to be noted that the close relatives of the deceased viz., P. Ws.2 and 3 the parents themselves have admitted in their evidence that Hemavati was unconscious right from initial stage on 15.4.1999 till 2.00 p.m. of the next day. If that is so, there was no question of Hemavati being in fit condition at 12 noon of 16.4.1999 and that is why we have to emphasise the necessity of the certificate being clear as to both fitness condition of the deceased both physically and mentally. This discrepancy in time factor creates doubt in our mind as to when exactly the duty doctor - P.W.14 checked Hemavati and 'found her as fit' to give statement. This discrepancy in time factor creates doubt in our mind as to when exactly the duty doctor - P.W.14 checked Hemavati and 'found her as fit' to give statement. As we have already indicated because of 93 percent of burns that too entire face being burnt and when she had to abort a foetus of 81/2 months age, it needs no medical knowledge to say she must have been under great pain and suffering. She must have been given sedatives and as the parents of the deceased herself admit being in unconscious stage almost for more than 12 hours, creates certain doubt as to the genuineness of the certificate issued by P.W.14. This doubt regarding the certificate being a created one is further affirmed by the correction of date found in Ex.P.7. The date which is indicated now as 16th, has been over written. There is every possibility of the date being either 15th or 18th also. On 15th April, there is no chance of P.W.9 recording the statement and if it is 18th then there is every doubt of P.W.9 recording the statement allegedly on 16th afternoon. As such apart from the oral say of the doctors and the close relatives of the injured Hemavati, we do not find any material to indicate that on the date and time the alleged dying declaration Ex.P.8 was recorded, Hemavati was fit both physically and mentally to give statement, that too involving her husband - the accused in the crime. 14. Nodoubt it is true that the Magistrate has recorded the dying declaration in question and answer form. But there is no certification on the same by the duty doctor - P.W.14 except saying that the statement was recorded before him. It is true that the first question put by the Magistrate is in respect of Hemavati being in conscious state. But we rather feel it unsafe to rely upon this dying declaration as we have already indicated. Moreover the way the detailed narration alleged to have been given by the deceased along with some interpolations in the answers, certainly creates doubt in our mind as to the genuineness of this dying declaration. But we rather feel it unsafe to rely upon this dying declaration as we have already indicated. Moreover the way the detailed narration alleged to have been given by the deceased along with some interpolations in the answers, certainly creates doubt in our mind as to the genuineness of this dying declaration. Time and again the Courts have laid down that the dying declaration to be recorded by the responsible Officers like Taluka Executive Magistrate not only should be in question and answer form but more specifically very words of the declarant. If we peruse the alleged answers given by Hemavati as to the cause of burn as her person by giving meticulous detailed particulars indicate that this was redone after due deliberation and thought. 15. One more aspect which creates doubt regarding this dying declaration is the alleged motive on the part of the accused. According to the prosecution the accused alleged to have suspected the fidelity of his wife Hemavati and with this suspicion in his mind, he used to often physically beat her and ultimately alleged to have been killed her. We find absolutely no such motive is stated by Hemavati in Ex.P.8. This indicates that the motive is a creation of the close relatives of the deceased especially the parents - P. Ws.2 and 3. 16. Nodoubt it is true P. Ws.2 and 3 are the parents of the deceased and they being closely related to the deceased would not in normal circumstances involve falsely any innocent person like the son-in-law (Appellant/accused). The law regarding the evidence of relative witnesses is now fairly well settled. Time and again the Apex Court and this Court have laid down that merely because a witness is a related witness, only on that count his evidence cannot be thrown out or disbelieved. But in the present case apart from being closely related to the deceased, there is enough material to indicate that both P. Ws.2 and 3 had personal grudge or ill will towards the accused himself. As the defence theory projected through the written statement of the accused under Section 313 Code of Criminal Procedure and the documentary evidence Exhibits 'D' series indicate that the relationship between the accused on one part and P. Ws.2 and 3 his parents-in-law on the other were rather strained. As the defence theory projected through the written statement of the accused under Section 313 Code of Criminal Procedure and the documentary evidence Exhibits 'D' series indicate that the relationship between the accused on one part and P. Ws.2 and 3 his parents-in-law on the other were rather strained. There is enough material to indicate that right from the date of marriage there were allegations, cases and counter cases between these two people. The accused himself at the earliest point of time had filed a criminal case against both the parents-in-law for committing theft of valuable articles and arecanuts from his house. So also enough evidence as to his lodging the complaint of assault against P.W.3 - the father-in- law just few days prior to the incident. According to the accused, because of these developments and strained relationship between her husband on one side and her parents on the other, Hemavati was depressed. It is to be noted at this stage itself that the Ex.P.2 the complaint alleged to have been given much earlier by the deceased herself indicate that she was fed up with her life. From this Ex.P.2 relied upon by the prosecution itself, there is every likelihood of Hemavati being disgusted with her life, committed suicide also. In the absence of any clear evidence as to the coercive being used as inflamatory material, there is every possibility of accidental death of Hemavati as propounded by the accused in his defence version. 17. On assessment of the entire materials, in our view, we cannot arrive at a definite finding that death of Hemavati was homicidal ruling out the possibility of accidental or suicidal death also. As such unless the prosecution proves that too beyond reasonable doubt that the death of Hemavati was related to the accused as homicidal death amounting to murder, in our view the accused is entitled for benefit of doubt. 18. It is well settled that unlike the prosecution the defence need not prove its case beyond reasonable doubt. Even the accused theory as to what exactly happened and how Hemavati sustained burn injuries is shown to by preponderance of probabilities, it would be sufficient for the Courts to shift the burden immediately on the prosecution to prove the case beyond reasonable doubt. Even the accused theory as to what exactly happened and how Hemavati sustained burn injuries is shown to by preponderance of probabilities, it would be sufficient for the Courts to shift the burden immediately on the prosecution to prove the case beyond reasonable doubt. On the face of inordinate delay in filing the F.I.R. especially when P. Ws.1 to 3 have admitted that the Police came to know of the incident on 15.4.1999 itself and the present complaint being filed on 16.4.1999 at about 11.45 p.m., indicates that the prosecution witnesses were buying time to deliberate against the accused especially in the background of admitted animosity to foist a false case against him taking opportunity of burning of Hemavati. When we find that the alleged dying declaration Ex.P.8 is suspicious and especially when there is no clear medical evidence as to the fitness condition of deceased Hemavati both mentally and physically, in our view, it is rather difficult to believe that Hemavati made such statement. 19. On the face of these materials especially the admitted animus between the accused on one hand and P. Ws.2 and 3 on the other, in our view, it is rather not safe to believe the alleged oral dying declaration said to have been made by Hemavati before these people especially when we have already discussed as to the doubt as to when exactly Hemavati regained her consciousness. Considering all these materials and re-appreciating the entire evidence, in our view, the learned Sessions judge has committed an error in relying upon the sole dying declaration to find the accused guilty. In our view the findings of the learned Sessions Judge are not only illegal but appears to be perverse one and as such the same is liable to be set aside. 20. In the result and for the reasons stated above, the appeal is allowed. The Appellant-accused is acquitted of all the charges levelled against him and is set at liberty giving benefit of doubt. As the accused is stated to be in custody, it is ordered that he shall be released forthwith.