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2015 DIGILAW 1311 (KAR)

Hulagappa v. State of Karnataka

2015-12-04

R.B.BUDIHAL, S.ABDUL NAZEER

body2015
JUDGMENT : The judgment and order of conviction dated 09.01.2012 passed by the Sessions Judge, Bagalkot, in S.C.No.27/2011 is called in question in this appeal. By the said judgment, appellant-accused No.1 has been convicted for the offences punishable under Sections 498A and 302 of IPC and accordingly, sentence was imposed on the appellant-accused No.1 and accused Nos.2 to 4 were acquitted. It is submitted by both the sides that as against the acquittal of accused Nos.2 to 4, no appeal has been preferred by the State. 2. The brief facts of the prosecution case as per the complaint Ex.P6 that P.W.4, who is the father of the deceased has lodged the complaint stating that he is a resident of Rampur in Lingasgur Taluk and he is having two daughters, viz., Hulgamma and deceased Devamma, and one son, namely, Hulgappa. 89 years back, deceased Devamma has been given in marriage to accused No.1 of Hirekodagali village and she begotten a son and a daughter. Accused No.2 is the brother, accused No.3 is the mother of accused No.1 and accused No.4 is the wife of brother of accused No.1 and deceased was residing along with her inlaws. It is further alleged that accused used to quarrel with the deceased for silly reasons. Hence, the deceased started to reside separately along with accused No.1 and there also accused used to quarrel with deceased Devamma. On 19.12.2010, in the night at about 11 p.m. one Timmanna Harijan, the uncle of accused No.1 informed the complainant that due to altercation between accused No.1 and his deceased daughter, deceased Devamma set herself ablaze in her house and admitted in Ilkal Government Hospital for treatment. Immediately, the comlpainant along with his wife and relatives went to the Ilkal Government Hospital and they were informed that the deceased was taken to District Government Hospital, Bagalkot. They came to Bagalkot and saw the deceased, who had completely sustained burn injuries and on enquiry, she told that due to the illtreatment given by accused Nos.1 to 4, in the night at 10.30 p.m. she herself poured kerosene and set fire to herself. She further told that accused No.1 also sustained burn injury when he attempted to extinguish the fire and her daughter also sustained burn injuries on her leg and back. She further told that accused No.1 also sustained burn injury when he attempted to extinguish the fire and her daughter also sustained burn injuries on her leg and back. On these allegations FIR was registered against accused Nos.1 to 4 at the first instance for the alleged offences punishable under Sections 323, 504, 498A read with Section 34 of IPC. On 27.12.2010, when the death of Devamma took place, as per the requisition made by the Police, the offence under Section 302 of IPC is also inserted in the case. 3. To prove its case, prosecution in all examined 25 witnesses as P.W1 to P.W25 and got marked documents Exs.P1 to P39 and material objects M.Os.1 to 4. On the side of the defence, no witnesses were examined, but two documents as per Ex.D1 and Ex.D2 got marked. 4. We have heard the arguments of the learned counsel appearing for the appellant-accused No.1 and also the learned Government Pleader appearing for the respondent-State. 5. Learned counsel for the appellant during the course of his arguments has submitted that the entire case of the prosecution is based on the dying declaration (Ex.P17) said to have been given by the deceased Devamma before the Taluka Executive Magistrate. It is his submission that the evidence placed on record by the prosecution shows that no such dying declaration has been given by the deceased and it is created by the prosecution to suit its case. The evidence on record shows that while recording the dying declaration, the parents i.e. P.W4 and P.W10 were also present. The evidence of the concerned Police Officers and the Medical Officers shows that requisition was given to Taluka Executive Magistrate on 20.12.2010 requesting him to record the dying declaration of the deceased Devamma. But, it is the contention of the learned counsel that on 20.12.2010 the dying declaration was not recorded by the Tahasildar, because the Doctor, who was incharge, told that deceased was not in a fit condition to give the statement on that particular day. 6. Learned counsel has further submitted that Taluka Executive Magistrate was informed that whenever she will be conscious and in fit condition, he will be informed and he can come and record the dying declaration. Accordingly, as per the case of the prosecution, dying declaration was said to have been recorded on 22.10.2010. 6. Learned counsel has further submitted that Taluka Executive Magistrate was informed that whenever she will be conscious and in fit condition, he will be informed and he can come and record the dying declaration. Accordingly, as per the case of the prosecution, dying declaration was said to have been recorded on 22.10.2010. Hence, he has submitted that this itself clearly shows that deceased was not in a condition to give the statement as relied upon by the prosecution. 7. It is his contention that as per the Postmortem report, the Doctor, who conducted the autopsy over the dead body of the deceased, gave the report that there was 90-95% burn injuries. Hence, submitted that when the burn injuries are to such extent, it is impossible for that lady to give such dying declaration. In this connection, learned counsel for the appellant relied upon the decision of the Hon’ble Supreme Court reported in the case of Surinder Kumar v. State of Haryana JT 2011(13) SC 290 = (2011) 10 SCC 173 . 8. Learned counsel for the appellant draws the attention of this Court to the relevant paragraphs, i.e., paragraph Nos.10, 12, 13 and 14 and submitted that in view of the principles enunciated in the said decision, this Court can infer that she was not in a position to give her dying declaration as relied upon by the prosecution. It is also his contention that looking to the prosecution case, on the one hand, it is relying upon the dying declaration (Ex.P17) to show that it is homicidal death caused by accused Nos.1 to 4, but looking to the complaint (Ex.P6), the father himself has stated in the complaint that when he went to the hospital, the deceased has stated that she herself poured kerosene and set fire to herself. Hence, looking to these materials on record and looking to the percentage of burns and as the whole body was burnt, it cannot be believed that the deceased put the thumb impression on Ex.P17. 9. It is his further contention that there is no certification by the Doctor that she was in a conscious state and in a fit condition to give her statement at the beginning of the dying declaration as required. On these grounds, he has submitted that the trial Court has not properly appreciated the materials on record i.e., both oral and documentary. On these grounds, he has submitted that the trial Court has not properly appreciated the materials on record i.e., both oral and documentary. The trial Court wrongly read the evidence and wrongly convicted the accused for the offences under Sections 498A and 302 of IPC. 10. Per contra, learned Government Pleader has submitted that Ex.P17, the dying declaration was recorded by the Taluka Executive Magistrate in the presence of the Doctor. It is also his submission that at the foot of the dying declaration, there is a signature with seal of the Doctor, who was present. Therefore, the contention of the other side that there was no certification regarding the mental condition and conscious state of the injured cannot be sustained at all. He has submitted that the Taluka Executive Magistrate as well as the Medical Officer, who were present have clearly stated before the Court on oath that they have recorded the dying declaration as narrated by the injured herself. He has submitted that even during the course of cross-examination of these witnesses, nothing has been elicited to disbelieve their version and hence, submitted that since the dying declaration has been satisfactorily established, it shows that it is a homicidal death. He further submitted that the trial Court considered these material aspects and rightly came to the conclusion to convict the appellant-accused No.1 for the offences under Sections 302 as well as 498A of IPC and that the judgment of the trial Court is legal and there is no merit in this appeal and hence, the same is to be dismissed. 11. Further the Government Pleader has submitted that the dying declaration can be the sole basis for conviction and it does not require corroboration from other evidence. In this regard, learned Government Pleader has relied upon the decision of the Hon’ble Apex Court in the case of Bhagwan Tukaram Dange v. State of Maharashtra reported in 2014 SAR (Criminal) 438 and draws the attention of this Court to paragraph 8 of the said judgment and submitted that the trial Court has rightly came to the conclusion that the dying declaration has been established satisfactorily. 12. We have perused the grounds urged in the appeal memorandum, the oral evidence of the prosecution witnesses and also the documents produced in the case. 13. 12. We have perused the grounds urged in the appeal memorandum, the oral evidence of the prosecution witnesses and also the documents produced in the case. 13. As submitted by the learned Government Pleader the case is based on the dying declaration of the deceased Devamma. Therefore, let us first examine the legal position with regard to the dying declaration and verify whether the materials placed on record is in compliance of the requirements of Section 32(1) of the Evidence Act, 1872. 14. The concept of dying declaration is of the English origin. The principles of English dying declaration is incorporated in Section 32(1) of our Indian Evidence Act, 1872 which states that if any person makes a statement as to the cause of his death or as to any of the circumstance of the transaction in which death resulted, then it is a relevant piece of evidence and it can be relied upon. 15. The basis for the dying declaration are that they are the declarations made at the point of extremity and when the declarant lost all his hopes of worldly affairs and motive to falsehood is completely silenced and when the mind is induced by most powerful consideration to speak the truth. So solemnity is the basis for dying declaration. That is why the law was made clear that if the dying declaration is satisfactorily established, then it can be the sole basis for conviction and which does not require any other corroborative evidence from the other sources. 16. When this is the legal position insofar as the dying declaration is concerned, let us verify the materials placed on record. Looking to the dying declaration Ex.P.17 and regarding the first contention of the learned counsel appearing for the appellant that at the beginning of the dying declaration, there is no certification by the Doctor to show that she was in a conscious state and in a fit mental condition to give such a statement is concerned, we are of the clear opinion that certification of the Doctor about these things is not a mandate of law and it is a rule of caution. The question as to whether the person, who recorded the dying declaration is to be believed by the Court or not and whether the person, who recorded the dying declaration was satisfied about the mental condition of the person giving dying declaration are the points to be appreciated by the Court. In this regard, we are referring to the decision of the Hon’ble Supreme Court in the case of Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 wherein Their Lordships have laid down the proposition as under:- “Dying declaration – Recording of – Absence of certification of doctor as to fitness of mind of declarant – Would not render dying declaration not acceptable – What is essentially required is that person who records it must be satisfied that deceased was in fit state of mind – Certification by doctor is rule of caution – Thus voluntary and truthful nature of declaration can be established otherwise.” 17. Therefore, the contention of the learned counsel for the appellant that as there is no certification at the beginning of the dying declaration, it is not a valid dying declaration cannot be accepted at all. But, now coming to the proof of this dying declaration by the prosecution with the help of the other materials are concerned, we have carefully gone through the evidence of the prosecution witnesses and during the course of the trial through the evidence of PW10, the mother of the deceased in her evidence, who clearly deposed before the Court on oath that herself and her husband PW4 were present when the Tahsildar recorded the dying declaration of the deceased. This clearly goes to show that the parents of the deceased were along with the deceased when the dying declaration under Ex.P.17 was recorded. Whereas the evidence of the Taluka Executive Magistrate as well as the Police witnesses goes to show that except them, none others were present. Therefore, there is no consistency in the evidence of the prosecution witnesses and the defence by bringing on record through the mouth of PW10, which established that the father and mother were present while recording the dying declaration. Looking to the evidence of the Doctor as well as the Tahsildar, it shows that requisition was made by the Police to the Taluka Executive Magistrate to come and record the dying declaration of deceased Devamma and it was on 20.12.2010. Looking to the evidence of the Doctor as well as the Tahsildar, it shows that requisition was made by the Police to the Taluka Executive Magistrate to come and record the dying declaration of deceased Devamma and it was on 20.12.2010. The evidence of Taluka Executive Magistrate shows that on 20.12.2010, he came to record the dying declaration but the Doctor informed that Devamma was not in a position to give her statement. Therefore, he will inform whenever she will be in a position to give her statement and accordingly, he was again summoned on 22.12.2010. On 22.12.2010, he came and recorded the dying declaration. So this evidence of prosecution itself goes to show that from 20.12.2010 to 22.12.2010, she was not in a position to give her statement. 18. We have also perused the postmortem report. The Doctor, who conducted the postmortem over the dead body of the deceased clearly opined that the percentage of burn injuries were 90% to 95%. The evidence of the Doctor PW16 is that condition of Devamma deteriorated day by day. The evidence of the parents would show that she was speaking in a low voice. It has come on record through the evidence of prosecution witnesses that her entire body including fingers were burnt, whereas, it is the case of the prosecution that Devamma put her thumb impression on Ex.P.17, the dying declaration. This is the evidence in respect of the dying declaration Ex.P.17 as per the story of the prosecution. It is no doubt true that in Ex.P.17, it is stated by the declarant that her husband and other family members were giving ill treatment to her and they poured kerosene on her and set fire to her. 19. We have also perused the documentEx.P.6, the complaint lodged by fatherPW4. Looking to the contents of the complaintEx.P.6, the complainant has stated that after getting the information that his daughter sustained burn injuries, immediately he rushed to the Government Hospital at Ilkal. When they went there, they came to know that she was shifted to District Hospital at Bagalkot. He has further stated in the complaint that after seeing his daughter in the hospital, he enquired as to what had happened. When they went there, they came to know that she was shifted to District Hospital at Bagalkot. He has further stated in the complaint that after seeing his daughter in the hospital, he enquired as to what had happened. In response to the same, she answered that her husband and family members were giving illtreatment to her, they were abusing her in filthy language and that she told her husband-accused No.1, who is the appellant herein that she is going to commit suicide for which accused No.1/appellant also told her to go and die and he also used abusive words. Then she poured kerosene and set ablaze herself. On the basis of the oral say of Devamma, he has admitted that he lodged a complaint as per Ex.P.6 and he has admitted his signature on Ex.P.6/complaint. The story of the prosecution is entirely different from the contents of the complaint. As per the complaint, it is a case of suicide by the deceased herself pouring kerosene and setting fire to herself. This is completely contrary to the case of the prosecution as made out under Ex.P.17, the dying declaration. If all these aspects are to be taken into consideration, it is very difficult for this Court to accept the story of the prosecution that she has given dying declaration as per Ex.P.17. It is also difficult to accept the case of the prosecution that it is a homicidal death. Looking to the evidence on record both oral and documentary, it will not satisfy the conscious of the Court that there is such a dying declaration given by the deceased Devamma. Perusing all the materials placed on record, it is clear that it is a case of suicidal death of Devamma. 20. Perusal of the evidence of the prosecution witnesses shows that after the marriage, when Devamma went to the house of her husband to lead the marital life, all the accused persons were giving illtreatment to her and because of that reason she went back to her parental place after 2 to 3 years. At that time, her husband also accompanied her and also stayed with her in her parental house for a period of one year. At that time, her husband also accompanied her and also stayed with her in her parental house for a period of one year. Thereafter, the present appellant came back to his house and at the instance of the elders, i.e., PW3 Timmanna and the other elderly persons, again the deceased was brought back to the house of her husband and as the illtreatment continued, the appellant and the deceased started to reside separately in a rented house. The facts on record during the course of trial also make it very clear that the said incident took place when the appellant, Devamma and their daughter were residing separately in a rented house which is not even disputed by the defence. Looking all these materials, it is for the accused person to explain how the incident has taken place because the said incident has taken place not on a public road or at some other place. It is in the residential house wherein only the couple and their child were residing. The materials as well as the injury certificate and the Doctor’s evidence would show that the appellant also had sustained burn injuries so also their daughter. This would show that when the incident took place, the appellant was very much present in the house and he is the better person to explain as to how the incident has taken place. 21. After conclusion of the trial, while examining the appellant/accused under Section 313 of the Cr.P.C., opportunity was given to him as to whether he wanted to examine any witnesses. His answer was ‘no’ and whether he wanted to say anything about the incident, his answer was that he was not in the house and that when he later came to the house, he saw his wife set on fire and he went to extinguish the fire. In that process, he also sustained injuries and when their daughter interfered, she also sustained injuries. But, looking to the cross-examination of the prosecution witnesses, it is not his defence that he was not in the house. No such thing was suggested to any of the prosecution witnesses that when the incident took place, he was not in the house and it has taken place in his absence. Therefore, the contention of the appellant/accused No.1 that he was not in the house when the incident took place cannot be accepted at all. 22. No such thing was suggested to any of the prosecution witnesses that when the incident took place, he was not in the house and it has taken place in his absence. Therefore, the contention of the appellant/accused No.1 that he was not in the house when the incident took place cannot be accepted at all. 22. On perusal of the judgment and order of the trial Court, it is seen that the trial Court has not at all appreciated the aspects about the dying declaration and the evidentiary value of the dying declaration. With reference to contents of Ex.P6 complaint, the trial Court has wrongly read the evidence and has come to the conclusion that it is a homicidal death. Having perused the entire materials placed on record, we are of the opinion that the learned Sessions Judge has wrongly come to a conclusion that it is a homicidal death and accordingly, our opinion is that it is a suicidal death. 23. When the offence punishable under Section 302 IPC has not been established by the prosecution with cogent and satisfactory material, conviction of the appellant/accused No.1 for the said offence is not sustainable in law. 24. The next question that arises for consideration is that if the offence for which he has been charged is not established during the course of the trial, but, if the evidence placed on record goes to show that he has committed some other offence, whether that can be taken into consideration by the Court and at this appellate stage, whether this Court can convict the appellant/accused No.1 for the other offence. In this connection, we are referring to Section 221 of the Cr.P.C., which reads as under:- “221. Where it is doubtful what offence has been committed – (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” 25. We are also referring to the decision of the Hon’ble Supreme Court in the case of K. Prema S. Rao and another v. Yadla Srinivasa Rao and another reported in (2003) 1 SCC 217 , wherein Their Lordships have laid down the proposition as under:- “A. Criminal Procedure Code, 1973 – Ss.221, 215 and 218 – Omission or defect in framing of charge – Held, accused may still be convicted for offence actually committed and proved on basis of evidence on record, so long as accused has not been misled by any error or omission in framing the charge and no failure of justice has been occasioned – Accused-Respondent 1 being charged under S.304B IPC (dowry death) and alternatively under S.498A IPC – Statement of charges unambiguously stating that deceased had been subjected to such cruelty and harassment “as did drive her to commit suicide” – Trial court convicting Respondent 1 under S.498A IPC only – Held on facts, presumption under S.113A, Evidence Act could be raised and Respondent 1 could be convicted under S.306 IPC as the case had all ingredients necessary for framing charge under that section – No need to remit the matter for retrial – Accused had had enough opportunity for defence – High Court ought to have allowed appeal of appellant parents of deceased – Respondent 1 sentenced to 5 years’ RI and Rs20,000 fine under S.306 – Penology – Compensation for victims of crime – Penal Code, 1860, Ss.306, 304B and 498A – Evidence Act, 1872, S.113A. B. Penal Code, 1860 – S.306 and Ss.498A & 304B – Accused charged under Ss.498A and 304B, held, on the same facts and evidence can be convicted under S.306 C. Criminal Procedure Code, 1973 – S.222 – Where accused acquitted of offence of higher degree, held, he may still be convicted for lesser offence depending on actual evidence on record.” 26. Looking to this provision and the decision of the Hon’ble Supreme Court, the Court is competent to hold that after perusing the materials placed on record, if, it is of the opinion that materials suggest that such other offence has been committed by the appellant/accused, even though there is no charge for the said offence, he can be convicted. Considering this legal position and perusing the materials placed on record, as we have already observed that the couple were residing separately and that the husband is the only person who is responsible and he has not come up with any definite explanation to state that the deceased was suffering from stomach pain or any serious ailment so as to take such a drastic step to commit suicide, that too by pouring kerosene and setting fire to herself. Life is so precious for every human being and without any reason, no person can take such an extreme step to put an end to the life. The materials clearly suggest that it is because of the harassment and cruelty meted out by the accused No.1appellant, Devamma has committed suicide. Therefore, the appellant-accused No.1 is liable for punishment for the offence under Section 306 of IPC, which is established with the materials placed on record. 27. Hence, the appeal is partly allowed and the judgment and order of conviction dated 09.01.2012 passed by the Sessions Judge, Bagalkot, in S.C. No. 27/2011 convicting the appellant/accused No.1 for the offence punishable under Section 302 of IPC is hereby set aside. But, the conviction order for the offence punishable under Section 498A IPC is confirmed. We further order that the prosecution has established that the appellant/accused No.1 has committed the offence punishable under Section 306 IPC and hence, he is liable for punishment for the said offence. So to that extent, the judgment and order of conviction passed by the trial Court is modified. 28. It is submitted that accused No.1 was arrested on 28.12.2010. From the date of the arrest till today, he is in custody. Therefore, in our opinion, whatever the sentence and punishment that the appellant/accused No.1 has already undergone, is sufficient. Hence, the jail authorities are hereby directed to release the appellant/accused No.1 forthwith, if, he is not required in any other case. Registry is directed to send the operative portion of this order to the concerned prison authorities.