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2012 DIGILAW 671 (KAR)

State of Karnataka v. Lakshmanna

2012-08-14

B.V.PINTO, D.V.SHYLENDRA KUMAR

body2012
JUDGMENT B.V. PINTO, J.—This appeal is filed by the State challenging the Judgment dated 29.3.2007 passed by the Fast Track Court-II at Kolar in S.C. No. 176/2006, acquitting the respondent/accused for the offences under Sections 498A and 302 of IPC. The parties in this appeal are referred as per their rank before the trial Court. 2. It is the case of the prosecution that the accused being the husband of the deceased Parvathamma, had married the deceased 10 years prior to the date of incident and subsequent to the marriage of the deceased Parvathamma, when he was residing with her at Sanakamavarapalli Village in Srinivasapur Taluk, he was ill treating her on the ground that she was not giving any money for his drinking, thereby he is alleged to have committed an offence under Section 498A of IPC. 3. It is further charged against the accused that on 15.5.2006 at about 6 p.m. at their house as stated above the accused poured kerosene on the deceased with an intention to murder her and thereafter set her ablaze and caused her death, thereby he is alleged to have committed an offence under Section 302 of IPC. 4. The prosecution in order to prove the case has examined in all 20 witnesses and got marked Exs.P1 to P20 and produced Mos.1 to 7. The defence of accused was one of total denial. However, after hearing the prosecution and the defence, the learned Sessions Judge was pleased to hold that the prosecution has not proved against the accused beyond reasonable doubt and passed an order of acquittal. Hence, the State has filed this appeal. 5. The facts of the case are that on 16.5.2006 in the midnight one Smt. Parvathamma w/o Lakshmana was admitted in the SNR District Hospital, Kolar with the burn injuries and the medical officer, who was in-charge of the hospital sent an intimation to the Station House Officer, Rayalpadu Police Station, Kolar District. P.W. 18, who was the in-charge of Station at that time, immediately rushed to the Hospital and after securing the opinion of the Doctor regarding the capability of the injured Parvathamma, recorded the statement of Parvathamma at about 4.45 a.m. on 16.5.2006. In the statement, Parvathamma has stated that her native place is Mulbagalu and she is the second wife of her husband-Lakshmana. In the statement, Parvathamma has stated that her native place is Mulbagalu and she is the second wife of her husband-Lakshmana. Though her husband had married one Papulamma since Papulamma had not begotten any children, she was given in marriage and the marriage was conducted as per the customs and rites of the community. Though at the earlier stages, both of them were residing together, at the time of giving complaint, the first wife was not residing with them and herself and her husband-Lakshmana has begotten two children one female child by name Hemavathi, aged about 8 years and one male child, aged about 5 years, named as Sudarshan. It is stated by the deceased that about 2 to 3 years prior to the date of incident, her husband was giving mental ill treatment to her and she had informed about this fact to the villagers and to her parents and her parents had advised the accused in this regard. She has stated that she is eking her livelihood and that of her children by working as a coolie. It is stated in the said statement that on 15.5.2006 at about 6 p.m. when she was in the house, her husband came and started quarrelling with her and ill treated her mentally and thereafter took the kerosene and by saying that he would not allow her to live, poured kerosene on her body and set her on fire and she started screaming. By that time, the entire clothes on her body started burning and they were fully burnt. At that time, her relatives by name Srinivasa and her sister Papulamma came and poured water on her body and extinguished the fire. She has stated that her husband was also present at that time. He has also sustained burn injuries on his back and that the villagers have seen the incident. Hence, she has requested for taking suitable action against her husband for pouring kerosene and for attempting to commit her murder. 6. P.W. 18-M.Krishnappa, PSI., after recording the statement at about 4.45 a.m. on 16.5.2006 went to the Station and registered a case in Crime No. 41/2006 for the offences under Sections 498A and 307 of IPC at 6.30 a.m. on that day and subsequently on receipt of intimation that the injured has succumbed to the injuries and the offence is converted into one under Section 302 of IPC. 7. 7. P.W. 19-H.K. Ramesh Kumar and P.W. 20-H.P. Rajanna, being the Inspectors of Police, conducted the investigation and ultimately filed the charge sheet against the accused for the offences under Sections 498A and 302 of IPC. 8. P.W. 1 is one Ravi, who is a neighbour to the house of the deceased. He has stated that both the deceased and P.W. 12 were the two wives of the accused and the accused had married the deceased on the background of the first wife of the accused not begetting any children and both the wives of the accused were working and eking their livelihood. It is stated by P.W. 1 that the accused was suspecting the fidelity of the deceased and in this connection by coming drunk home, he was ill treating his second wife. He has also stated that the deceased is his distant relative. It is in the evidence of P.W. 1 that on 15.5.2006 at about 9 p.m. one Narayanappa, who is examined as P.W. 4, informed him that he has received a telephone call regarding the accused pouring kerosene on the deceased and setting her on fire. All of them left to Punganoor and from there they went to Madanapalli and later on reached Rayalpadu Police Station. When enquired in the Police Station, it was found that the injured Parvathamma has been admitted in SNR Hospital and when they went to the hospital Parvathamma was found with burn injuries on her person. It is stated by P.W. 1 that the deceased had informed them that the accused had poured kerosene on her after tying her hands backside and thereafter set her on fire. It is his evidence that after saying so much the deceased died. 9. P.W. 2-Munishami, is a neighbour to the house of Narayanappa-father of the deceased. He has also stated that on coming to know of the information that the deceased had sustained burn injuries, he accompanied P.Ws. 1 and 4 to the Rayalpadu Police Station and when enquired about the cause of her injuries, the deceased is alleged to have stated that the accused has poured kerosene on her and set her on fire. Immediately thereafter within five minutes, the deceased succumbed to the injuries. 10. P.W. 3-Krishnareddy, has stated that the accused and the deceased were living together alongwith the first wife of the accused in their village. Immediately thereafter within five minutes, the deceased succumbed to the injuries. 10. P.W. 3-Krishnareddy, has stated that the accused and the deceased were living together alongwith the first wife of the accused in their village. He has stated that on earlier occasion the accused and the deceased were quarrelling with each other. However, so far as the incident is concerned, P.W. 3 has not supported the case of the prosecution and he has been treated as hostile by the prosecution. 11. P.W. 4-Narayanappa, is a witness to the inquest proceedings-Ex.P2, in which, the police have seized the clothes-MO.1 belonging to the deceased as per Ex.P3. 12. P.W. 5-Dr. S.S. Shankar Kumar, has stated that he was on duty in the intervening night on 15.5.2006 and 16.5.2006 in the SNR Hospital, Kolar and at about 3.45 a.m. one patient by name Parvathamma was brought to the hospital with burn injuries on her person. On enquiry, she has stated that her husband has poured kerosene and lit her on fire. He has stated that the condition of the patient was bad since the patient had sustained 100% burns. Immediately he has called for a surgeon and provided the required treatment. He has given intimation as per Ex.P4 to the police regarding admission of patient to the hospital and though he advised them to take the injured to the major hospital, since they are poor, they did not shift the patient to another hospital. P.W. 5 has further stated that on arrival of the police, he has given an endorsement to the police stating that the patient is in a fit condition to give statement as per Ex.P5(a). He has further stated that the police has recorded the statement of the injured as per Ex.P6 in his presence at 4.45 a.m. It is in his evidence that between 5 a.m. to 5.30 a.m. the injured slipped into coma and at about 7.15 a.m. she went gasping and at about 7.30 a.m. she died. He has given intimation to the police as per Ex.P7. P.W. 5 has been thoroughly cross-examined regarding the endorsement he has made in Ex.P5 and regarding the capacity of the injured to give statement as per Ex.P6. It is suggested to him that the injured could not give such a statement since she has sustained 100% burn injuries. He has given intimation to the police as per Ex.P7. P.W. 5 has been thoroughly cross-examined regarding the endorsement he has made in Ex.P5 and regarding the capacity of the injured to give statement as per Ex.P6. It is suggested to him that the injured could not give such a statement since she has sustained 100% burn injuries. It is further suggested to him that since the deceased has sustained burns in the entire hand including the thumbs, the police could not have obtained the left thumb impression of the deceased at Ex.P6. It is further suggested that Ex.P6 is a created document and that he has not certified in Ex.P6 regarding the fitness of the injured to give a statement as per Ex.P6, all of which suggestions have been denied by P.W. 5. 13. P.W. 6-Dr. Joseph Shashikanth Das has conducted the post-mortem examination on the dead body of the deceased and has stated that the death is due to extensive burn injuries sustained by the deceased as per Ex.P9. The report is marked as Ex.P10. It is elicited in the cross-examination that the entire body including palms were burnt and that palm includes thumb. It is further elicited if the thumb is burnt, the normal texture of the print would disappear. 14. P.W. 7-Dr. Sampath Kumar, is a medical officer in General Hospital, Srinivasapur, who has stated that on 17.5.2006 at about 4.15 p.m. the police produced the accused before him and the accused was found to have sustained the following injuries: 1. Superficial burns about 5 c.m. × 1 c.m. on the left elbow joint; 2. Superficial burns about 10 c.m. × 1 c.m. on the left scapular region associated with blebs; and 3. Superficial burns about 8 c.m. × 1 c.m. above the left hip joint on the posterior side. He has opined that all the injuries are simple in nature and were caused within 48 hours prior to his examination. Ex.P11 is the Certificate issued by him. 15. P.W. 8-Ananda, has stated that P.W. 3 is his neighbour and that he received a telephone call in his house regarding the incident and later on he informed P.W. 3 about the same. 16. P.W. 9-Y.N. Krishnappa; P.W. 10-Y.R. Reddy Prasad and P.W. 11-Venugopal, have not supported the case of the prosecution and they have been treated as hostile by the prosecution. 17. 16. P.W. 9-Y.N. Krishnappa; P.W. 10-Y.R. Reddy Prasad and P.W. 11-Venugopal, have not supported the case of the prosecution and they have been treated as hostile by the prosecution. 17. P.W. 12-Papulamma is the first wife of the accused. She has stated that since she did not beget children, she only requested the accused to marry the deceased and after the marriage about 15 years prior to the date of incident, the accused begot two children one male and one female and that they were residing together for some time and later on she was residing separately. She has stated that on the date of incident, she has gone to the house of the accused and the deceased was cooking inside and while pouring kerosene to the stove, she sustained burn injuries. However, she has been treated as hostile by the prosecution and has been cross-examined. In the cross-examination by the accused, it is elicited that the deceased was knowing only Telugu language and that she was neither understanding nor speaking Kannada language. 18. P.W. 13-Narayanappa is the father of the deceased. He has stated that for some years after the marriage of the daughter with the accused, they were living happily and they have begotten two children. However, subsequently, the accused was ill-treating his daughter and in this connection panchayath was convened, in which some members had also taken part. It is further stated by him that on coming to know of his daughter sustaining injuries, he went to Rayalpadu Police Station and thereafter he went to the SNR Hospital and in the hospital his daughter has stated that her husband has poured kerosene and set her on fire. Thereafter, she has died in the hospital itself. In the cross-examination, it is elicited that by the time they reached the hospital, it was about 6 a.m. and the police were already in the hospital. The police did not make any inquiries with him. 19. P.W. 14-Kodandarama is the brother of P.W. 13. He has also stated as per the version of P.W. 13 and as stated that by the time they reached the hospital at Kolar, it was about 6 a.m. 20. P.W. 15-Manjamma is the stepmother of the deceased. Her evidence is formal in nature since she is not an eyewitness to the incident. 21. He has also stated as per the version of P.W. 13 and as stated that by the time they reached the hospital at Kolar, it was about 6 a.m. 20. P.W. 15-Manjamma is the stepmother of the deceased. Her evidence is formal in nature since she is not an eyewitness to the incident. 21. P.W. 16-Gouse Peer, is the Village Accountant, who has stated regarding the house tax paid by the accused in respect of the house in which he was residing with the deceased. 22. P.W. 17-Mahaboob Pasha, is the head constable, who has apprehended the accused on 17.5.2006 at 1.30 p.m. 23. P.W. 18-M.Krishnappa, was the Station House Officer. On 16.5.2006 at about 1.30 a.m. on receipt of the information from the SNR Hospital, he reached the hospital at about 4 a.m. and on observing the injured, he requested the medical officer to state regarding the capacity of the injured to give a statement and after obtaining the opinion of the Doctor as per Ex.P5, he has recorded the statement of the injured as per Ex.P6. Thereafter, he has come back to the Police Station and registered the case in Crime No. 41/2006 for the offences under Sections 498A and 307 of IPC and transmitted the FIR to the Court. Later on he has visited the scene of occurrence. Thereafter at about 9 a.m. he drew the panchanama of the scene of occurrence and seized certain articles including the plastic can and burnt clothes from the scene of occurrence. On receipt of intimation that the deceased has succumbed to the injuries, the offence under Section 302 of IPC was added to the earlier FIR. In the cross-examination, it is elicited that Ex.P6 was got written through a scribe and that he is not in a position to state as who is the scribe was. It is also brought to his notice that the name and signature of the scribe is not mentioned in Ex.P6. It is also brought to his notice in the cross-examination that nobody has identified the LTM of the deceased in Ex.P6. It is suggested that the thumb impression found on Ex.P6(b) does not belong to the deceased, which suggestions has been denied by P.W. 18. 24. P.W. 19-H.K. Ramesh Kumar and P.W. 20-H.P. Rajanna, are the Investigating officers, who have conducted the investigation and laid the charge sheet. 25. It is suggested that the thumb impression found on Ex.P6(b) does not belong to the deceased, which suggestions has been denied by P.W. 18. 24. P.W. 19-H.K. Ramesh Kumar and P.W. 20-H.P. Rajanna, are the Investigating officers, who have conducted the investigation and laid the charge sheet. 25. Heard Sri N.S. Sampangi Ramaiah, learned HCGP for the appellant/State and Sri M.R. Nanjunde Gowda, learned Counsel appearing for the Respondent/ accused. 26. Sri N.S. Sampangi Ramaiah, learned HCGP submits that from the evidence so recorded as above, the trial Court has grossly erred in acquitting the accused, more particularly, in disbelieving the version of P.Ws. 1, 13 and 17 before whom the deceased has given oral dying declaration stating that her husband has set fire on her by pouring kerosene. The evidence of all these three witnesses is very clear insofar as the involvement of the accused in the crime is concerned. Learned HCGP has further submitted that the evidence of P.W. 5-Dr. S.S. Shankar Kumar deserves to be accepted and the evidence of P.W. 18 and documents at Ex.P6 clearly indicates that the deceased has given a dying declaration, which stated that the deceased was set on fire after pouring kerosene by the accused and having regard to the fact that P.W. 5 has signed Ex.P6 stating that the statement of deceased was recorded in his presence, the learned Sessions Judge ought to have convicted the accused. It is further submitted by him that the fact that the Doctor has signed stating that the statement has been recorded before him indicates that the statement as mentioned in Ex.P6 is in fact recorded from the mouth of the injured and that the injured was in a position to give such a statement. Under the circumstances, he submits that the order of acquittal is erroneous and prays that the appeal may be allowed and the accused may be convicted. 27. Sri M.R. Nanjunde Gowda, learned Counsel appearing for the Respondent/accused on the other hand submits that there are glaring discrepancies in the story of the prosecution case as pointed out by the learned Sessions Judge while giving reasons for acquittal. 27. Sri M.R. Nanjunde Gowda, learned Counsel appearing for the Respondent/accused on the other hand submits that there are glaring discrepancies in the story of the prosecution case as pointed out by the learned Sessions Judge while giving reasons for acquittal. It is pointed out by him that P.W. 5 has categorically stated in his evidence that the deceased has gone on coma at about 5 a.m. and thereafter she was gasping and she has died at about 7.30 a.m. Therefore after 5 a.m. there was no possibility of deceased speaking to anybody much less to P.Ws. 1, 13 or 14. Therefore, the version of P.Ws. 1, 13 or 14, who categorically stated that by the time they reached the hospital, it was 6 a.m. and that the deceased informed them that accused has set her on fire is totally false and concocted because the deceased could not have spoken to them after 5 a.m. if the evidence of P.W. 5 is to be believed. It is further submitted by him that insofar as the dying declaration is concerned, it is the evidence of P.W. 12-the first wife of the accused, that the deceased knew only Telugu language and that she was not knowing Kannada either to speak or to write, whereas Ex.P6 is in Kannada. Nowhere it has been stated that the Telugu version of the deceased has been translated into Kannada and no such endorsement is found in Ex.P6 to this effect, which indicates that Ex.P6 is not the version of deceased since the deceased could not have spoken Kannada at all. Therefore, it is submitted by him that the version contained in Ex.P6 is not the statement of the deceased. It is further submitted by him that P.W. 18 has categorically admitted that he has not himself written Ex.P6 and he has got it written through the scribe. The name of scribe is not found in Ex.P6 nor his signature is found anywhere in Ex.P6, which indicates that the name and identity of scribe of Ex.P6 has been totally suppressed by the prosecution and the same is fatal to the case of the prosecution. 28. The name of scribe is not found in Ex.P6 nor his signature is found anywhere in Ex.P6, which indicates that the name and identity of scribe of Ex.P6 has been totally suppressed by the prosecution and the same is fatal to the case of the prosecution. 28. He has invited our attention to the decision reported in 2000 Crl.L.J. 1167 in the case of State of Karnataka vs. Aslam alias Aslam Pasha, which reads as under: “(A) Evidence Act (1 of 1872), Section 32—Dying declaration—Recording of—Evidence on record showing that statement was not recorded by Doctor but by Police Constable who was not examined—Some thumb impression was on statement and statement contains certificate from Doctor to the effect that it was recorded before him—Failure on part of doctor in-charge to certify about capacity of patient to make correct statement—Such statement of certificate is wholly insufficient-Conviction cannot be based on such dying declaration.” It is also further pointed out by him that in the background of the evidence of P.W. 5 and the fact that in Ex.P5, no time has been mentioned at which P.W. 18 has approached P.W. 5 for seeking the opinion regarding the fitness of the injured to give a statement nor the mentioning of any other time in Ex.P5-Requisition regarding the time the injured is found to be in a fit condition to give a statement. Ex.P5 cannot be relied upon at all as it does not contain the date also on it. Under the circumstances, the prosecution has introduced Ex.P5 as an afterthought to overcome the deficiency found in Ex.P6. It is his submission that having regard to these facts, the trial Court has rightly found that a conviction cannot be based on the dying declaration-Ex.P6. Hence, there are no merits in this appeal. It is further submitted by him that in an appeal against acquittal, the appellate Court should slow in reversing the order of acquittal recorded by the trial Court unless the appellate Court finds that the view taken by the trial Court is either perverse or against the evidence on record or is contrary to the settled principles of law. There are being no such ground in this appeal, he submits that an order of acquittal cannot be lightly reversed and converted into an order of conviction. Hence, he submits that the appeal may be dismissed. 29. There are being no such ground in this appeal, he submits that an order of acquittal cannot be lightly reversed and converted into an order of conviction. Hence, he submits that the appeal may be dismissed. 29. We have carefully gone through the entire materials on record and have carefully scrutinized Exs.P5 and P6 with reference to the evidence of P.W. 5. We have scrupulously taken note of the timing mentioned in Ex.P5, the time at which the deceased has gone into coma and the evidence of P.W. 18 who has recorded the dying declaration of the deceased. It is very interesting to note that P.W. 18 has not noted the entire time between which the dying declaration has been recorded. He only states in Ex.P6 that the same was recorded at 4.45 a.m. on 16.5.2006 but does not mention as to at what time the recording was commenced and at what time the same is concluded and having regard to the fact that the dying declaration runs into almost 2½ pages, it must have taken not less than half-an-hour to 45 minutes for recording Ex.P6. If we consider evidence P.W. 5, he states that at about 5 a.m. the injured has gone into coma. Hence if P.W. 18 started to record the statement at 4.45 a.m. by the time he concluded the recording, the injured has already gone into coma and therefore the statement as stated in Ex.P6 could not have been the statement of the deceased. It is added to the fact that the deceased knew only Telugu language and there is no whisper about the deceased speaking in Telugu and thereafter translating the same into Kannada language. Under the circumstances, we are of the opinion that there is a serious doubt regarding genuineness of Ex.P6-dying declaration. If we remove Ex.P6 from the evidence, what remains on record is oral evidence of P.Ws. 13 and P14 before whom the oral dying declaration is alleged to have been made by the deceased. Having regard to the fact that they have reached the hospital at 6 a.m. on the date of incident and the fact that the deceased had gone into coma at 5 a.m. naturally they could not have any interaction with the deceased and their statement that the deceased had informed them about her husband setting her on fire, is totally false. 30. 30. Under the circumstances, we are of the considered opinion that the trial Court could not have convicted the accused and has rightly acquitted the accused and has recorded the reasons for the order of acquittal. We are in agreement with the order of acquittal passed by the trial Court and there are no compelling reasons as to why the well considered judgment of acquittal should be reversed. Therefore this appeal has no merits and is liable to be dismissed and accordingly the appeal is dismissed.