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2016 DIGILAW 225 (KAR)

State v. Parameshwarappa

2016-03-02

B.VEERAPPA, MOHAN M.SHANTANAGOUDAR

body2016
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The Judgment & Order of acquittal dated 23.7.2011 passed by the I Fast Track Court, Shimoga in Sessions Case No. 111/2008 is called in question in this appeal by the State Government. By the impugned Judgment, the trial Court has acquitted the accused of the offences punishable under Sections 498-A, 114, 302 r/w Section 34 of IPC. 2. Case of the prosecution in brief is that the deceased Bhagya is the husband of Accused No. 1 -Parameswarappa; Accused Nos. 2 and 3 are mother and brother of Accused No. 1; the accused used to harass the victim on one pretext or the other; Accused No. 1 was addicted to consuming alcohol and he used to torture the deceased both physically and mentally; at about 11.30 p.m. on 2.4.2008, the Accused No. 1 came to the house after consuming liquor; he quarreled with the victim and thereafter poured kerosene on her and set her ablaze; the incident has taken place in the matrimonial house wherein Accused No. 1 and the deceased only were residing; they did not have any children; Accused No. 1 and the deceased had married 13 years prior to the incident in question; immediately after the incident, the victim was shifted to Mc Gann hospital, Shimoga at about 00.20 hours on 3.4.2008 by her brothers (PW.4 and PW.5) with the help of PWs.1 to 3; Soon after the admission of the patient to the Mc Gann hospital, the said hospital had issued the medico legal case intimation to the Police as per Ex. P29; During the course of treatment at Mc Gann hospital, Shimoga, the Assistant Sub-Inspector of Police (PW.19) attached to Holehonnur Police Station came to the hospital and recorded the statement of the victim at 2.10 a.m. on 3.4.2008 as per Ex. P30, based on which Crime No. 41/2008 came to be registered in Holehonnur Police Station against the accused; the victim was given treatment upto 3.30 a.m. on 3.4.2008 and thereafter she was shifted to Kasturba Medical College hospital, Manipal for higher treatment. It is relevant to note that Dr. Nagaraj - PW.16 before sending the victim to Manipal hospital, has recorded the statement of the victim made before him in the case sheet (Ex. P26) maintained by the Mc Gann hospital, Shimoga at 11.45 a.m. on 3.4.2008. It is relevant to note that Dr. Nagaraj - PW.16 before sending the victim to Manipal hospital, has recorded the statement of the victim made before him in the case sheet (Ex. P26) maintained by the Mc Gann hospital, Shimoga at 11.45 a.m. on 3.4.2008. After admission of the victim to the Manipal hospital, her statement was recorded by the Taluka Executive Magistrate (PW.8) as per Ex. P18 in presence of the doctor -PW.17 from 7.35 p.m. to 8.30 p.m. on 3.4.2008. It is further relevant to note that the history as given by the victim was entered in the case sheet maintained by the Manipal hospital immediately after admission on 3.4.2008 as per Ex. D5. Ultimately, the deceased succumbed to the burn injuries on 9.4.2008 at 8.10 a.m. in Manipal hospital. 3. Sri Majage, learned Addl. SPP taking us through the material on record has submitted that the trial Court is not justified in disbelieving the dying declarations made by the victim in both the hospitals; the dying declarations are recorded by the Police Officer, doctor and the Taluka Executive Magistrate; Ex. P18, the dying declaration recorded by the Taluka Executive Magistrate is supported by the fitness certificate issued by the duty doctor during the relevant point of time. According to the learned Addl. SPP, the trial Court ought to have convicted the accused for the offence under section 302 of IPC inasmuch as the dying declarations recorded would amply prove the case of the prosecution against the accused. Per contra, Sri Kiran, learned advocate appearing on behalf of the respondents argued in support of the judgment of the Court below. He draws the attention of the Court to the various inconsistencies found on record while contending that the trial Court is justified in acquitting the accused. 4. As mentioned supra, PWs. 1,2,3,4 and 5 took the victim from her house for admitting her to Mc Gann hospital, Shimoga and thereafter she was shifted to Manipal hospital. PWs.1 to 3 have turned hostile to the case of the prosecution. However PWs.4 and 5 who are brothers of the deceased have supported the case of the prosecution by deposing that the accused used to harass the victim and it was the Accused No. 1 who set the victim ablaze after pouring kerosene. In the matter on hand, PWs.4 and 5 are not the eye witnesses to the incident. However PWs.4 and 5 who are brothers of the deceased have supported the case of the prosecution by deposing that the accused used to harass the victim and it was the Accused No. 1 who set the victim ablaze after pouring kerosene. In the matter on hand, PWs.4 and 5 are not the eye witnesses to the incident. It is also relevant to note that there are no eye witnesses examined before the Court. 5. It is not in dispute that the Accused No. 1 also sustained certain burns on its palm. Ex. P20 is the wound certificate of the Accused No. 1. The doctor - PW.11 has treated the Accused No. 1 and issued the wound certificate as per Ex. P20. Thus it is not in dispute that the accused was also present at the time of the incident in question. However the Accused No. 1 has explained in his statement recorded under Section 313 Cr.PC that the victim was frustrated and was depressed in life inasmuch as she did not beget children though the marriage was subsisting since 13 years. The deceased was staying at Holehonnur village alongwith her sisters and brothers. Though the Accused No. 1 was working at Kudligere High School in Bhadravathi taluk and though he was residing alongwith his parents, brothers and sisters at Kudligere village in Bhadravathi taluk, the deceased was pressurizing the accused to have her house at Holehonnur village inasmuch as the deceased was not willing to go out of Holehonnur village. However the accused did not accede to the demand of the deceased for having house at Holehonnur village and he always lived at Kudligere village alongwith his parents and brothers. In that regard also, the victim was blessed. As a compromise formula, the accused and the deceased made a separate home and they started living separately from parents of the accused at Kudligere itself. Despite the same, the deceased was not happy and she used to tell Accused No. 1 that she has to be alone in the house inasmuch as he (Accused No. 1) goes for work to school. However the deceased used to put pressure on accused to have a house at Holehonnur. Despite the same, the deceased was not happy and she used to tell Accused No. 1 that she has to be alone in the house inasmuch as he (Accused No. 1) goes for work to school. However the deceased used to put pressure on accused to have a house at Holehonnur. On the date of the incident i.e., 2.4.2008, the engagement ceremony of cousin of the deceased was being performed and the deceased had pressurized the accused that they should go and attend the engagement ceremony; Due to pressure of work in the school, the Accused No. 1 did not come back to house upto 9 p.m. on the night of 2.4.2008; However the Accused No. 1 had told the deceased that it is not possible for him to attend the engagement ceremony and therefore it is open for her (deceased) to go alone and attend the engagement ceremony. For the aforementioned reasons, the deceased was frustrated. When the accused came to the house during the night of 2.4.2008, he found that the deceased had already sustained burn injuries. He tried to extinguish fire and in that context, he also suffered certain injuries on his hand. Be that as it may, looking to the material on record, it is clear that the entire case of the prosecution is based on the four dying declarations - Ex. P30, Ex. P18, Ex. P26 and Ex. D5. As mentioned supra, there are no eye witnesses to the incident. PWs.4 and 5 have deposed about the alleged harassment by the accused. Hence we are of the clear opinion that the case fully rests on the dying declarations mentioned supra. 6. After receipt of the MLC intimation vide Ex. P29 at about 00.20 hours on 2.4.2008, the Assistant Sub-Inspector of Police attached to Holehonnur Police Station (PW.19) came to Mc Gann hospital at 2.10 a.m. on 3.4.208 and recorded the statement of the victim from 2.30 a.m. to 3.15 a.m. in the hospital as per Ex. P30. The same itself was treated as the first information and the crime came to be registered against all the three accused. Ex. P30 runs to about 2 pages. It not only narrates the incident in question, but also it discloses the entire history as to when the deceased had married the accused etc., The entire previous history is found in Ex. P30. At the end of Ex. Ex. P30 runs to about 2 pages. It not only narrates the incident in question, but also it discloses the entire history as to when the deceased had married the accused etc., The entire previous history is found in Ex. P30. At the end of Ex. P30, the alleged signature of the victim is found. The doctor has not endorsed on the said document Ex. P30 that the victim was in a fit condition to make statement. Admittedly, in the matter on hand the deceased has sustained 90 to 95% deep burns. The doctor (PW.16) who conducted postmortem examination has opined that the deceased has sustained 96% burns. In this context, learned advocate for the defence is justified in arguing that it may not be possible for the victim to give such a lengthy statement which contains not only the relevant portions but also irrelevant portions, particularly when the victim has sustained 96% burns. Be that as it may, as mentioned supra, though Ex. P30 is allegedly recorded by the Police in the District Hospital, the Police Officer did not venture to get the assistance of the doctor to find out as to whether the victim was in a fit condition to make statement or not. It is also not in dispute that the victim has sustained burns all over the body including the finger tips and palm. However the feet of the victim which touched the ground, did not have burn injuries. Therefore in our considered opinion, it is impossible for the victim who had sustained 96% burns all over the body to have signed the said document. In addition to the same, the evidence of the doctors PWs.12, 16 and 17 clearly disclose that the victim was not in a position either to sign or put her thumb impression. In this view of the matter, in our considered opinion, the trial Court is justified in disbelieving the so called dying declaration Ex. P30 recorded by the Assistant Sub-Inspector of Police. 7. Dr. Nagaraj (PW.16) who was in-charge of burns ward during the relevant point of time at Mc Gann hospital, Shimoga has recorded in brief in the case sheet about the statement of the victim allegedly made before him as per Ex. P26. We have carefully perused the document Ex. P26 and the evidence of PW.16 in that regard. 7. Dr. Nagaraj (PW.16) who was in-charge of burns ward during the relevant point of time at Mc Gann hospital, Shimoga has recorded in brief in the case sheet about the statement of the victim allegedly made before him as per Ex. P26. We have carefully perused the document Ex. P26 and the evidence of PW.16 in that regard. It is admitted case of the prosecution that the incident has taken place at about 11.30 p.m. on 2.4.2008. The patient was admitted to hospital at 00.20 hours on 3.4.2008. Dr. Nagaraja (PW.16) has recorded the statement of the victim in the case sheet - Ex. P26 at 11.45 a.m. on 3.4.2008 i.e., even prior to the ASI recording the dying declaration Ex. P30 mentioned supra. Ex. P26 discloses that the alleged incident of accused pouring kerosene on the deceased and setting her ablaze had taken place at 5 p.m. on 2.4.2008. According to the doctor PW.16, the victim was in a fit condition to make statement when she stated that the accused poured kerosene on her and set her ablaze on 2.4.2008. Firstly, the version as found in Ex. P26 that the incident had taken place at 5 p.m. on 2.4.2008 runs contrary to the case of the prosecution itself inasmuch as it is the case of the prosecution that the incident had taken place at 11.30 p.m. and not at 5 p.m. on 2.4.2008. If the incident had taken place at 5 p.m., then the accused would not have been there in the house at all. On the date of the incident i.e., 2.4.2008, the Accused No. 1 had worked in the school as a clerk and he came to the house only at 9 p.m. In view of the same, firstly the version as found in Ex. P26 is false. Secondly, the evidence of PW.16 runs contrary to the version of another doctor PW.12 who is working in the very Mc Gann hospital during relevant point of time. PW.12 - Dr. J.B. Patil had admitted the victim to the hospital at 00.20 hours on 3.4.2008. He gave first aid to the victim. He has clearly deposed before the Court that the patient was in serious condition and she was unconscious and she was not at all able to talk and give statement. PW.12 - Dr. J.B. Patil had admitted the victim to the hospital at 00.20 hours on 3.4.2008. He gave first aid to the victim. He has clearly deposed before the Court that the patient was in serious condition and she was unconscious and she was not at all able to talk and give statement. He advised to shift the victim to Manipal hospital during relevant point of time after consultation with the surgeon. PW.12 has deposed that the victim was not at all in a position to speak and she was unconscious. Hence it is clear that the evidence of PW.12 and PW.16 run contrary to each other. We do not find any reason to believe the version of doctor PW.16, particularly when the evidence of another doctor PW.12 runs totally contrary to his version. As mentioned supra, the victim was under treatment in Mc Gann hospital only for three hours. During the said period of three hours itself, the two doctors viz., PWs.12 and 16 have treated the victim and the versions of both the doctors are contrary to each other with regard to the fitness of the victim to make statement. In this view of the matter, in our considered opinion the trial Court is justified in disbelieving the summary recorded by doctor -PW.16 as per Ex. P26 as well the evidence of doctor -PW.16. 8. The victim was brought to Manipal hospital on 3.4.2008. Immediately after admission of the victim to the Manipal hospital, the burnt area was estimated by the concerned doctor. In the case sheet of the hospital relating to the burnt area estimation (Ex. D5), the history as provided by the victim was recorded by the doctor PW.17 who was attached to Manipal hospital. The doctor has admitted about the documents at Ex. D4 and Ex. D5. Ex. D4 is the case sheet whereas Ex. D5 is a portion of the case sheet wherein the history as provided by the patient was recorded. Ex. D5 discloses that the patient herself has given the history to the effect that she sustained burn injuries by pouring kerosene on herself and setting herself ablaze, which means, the accused has no role to play in the incident in question. It is not in dispute that the accused was not present when the victim was admitted to Manipal hospital. The patient was shifted from Mc. It is not in dispute that the accused was not present when the victim was admitted to Manipal hospital. The patient was shifted from Mc. Gann hospital to Manipal hospital by PWs.4 and 5 who are brothers of the victim. Hence it is clear that the victim herself has independently given history to the effect that she herself was responsible for the burn injuries sustained by her. The doctor PW.17 has admitted that he has recorded the history as found in Ex. D5 and that the patient herself has given such an history. Moreover the case sheet maintained by Kasturba hospital, Manipal (Ex. D4) nowhere reveals that the patient was conscious, oriented and was in a position to speak. On the other hand, the case sheet reveals that the victim was administered with Morphine alongwith I.V. fluid apart from other drugs. The Court can take judicial notice of the fact that the drug morphine is a pain killer and a sedative. The case sheet maintained by Kasturba Hospital, Manipal nowhere discloses that the victim was in a fit condition to make statement. 9. According to the case of the prosecution, the dying declaration Ex. P18 came to be recorded by Taluka Executive Magistrate (PW.8) from 7.35 p.m. to 8.30 p.m. in Manipal hospital on 3.4.2008 in presence of the doctor PW.17. Though PW.17 has admitted in the examination-in-chief that the Taluka Executive Magistrate (PW.8) came to the hospital and recorded the statement of the victim, in the cross-examination he admits that he was not present at the time of recording said statement as per Ex. P18. He must have signed the said dying declaration after about one hour of recording the statement by the Taluka Executive Magistrate. He further admits that at the time of alleged recording of dying declaration - Ex. P18 by the Taluka Executive Magistrate, he was treating some other patient. He has further admitted that the Taluka Executive Magistrate had not sought any certificate from him at the time of recording the dying declaration; However the Taluka Executive Magistrate has allegedly taken the oral permission of the doctor for recording the dying declaration. From the version of the doctor - PW.17 as found in the cross-examination, it is clear that he was not present at the time of recording the dying declaration - Ex. P18 and that he gave the certificate as found in Ex. From the version of the doctor - PW.17 as found in the cross-examination, it is clear that he was not present at the time of recording the dying declaration - Ex. P18 and that he gave the certificate as found in Ex. P18 with regard to the fitness of the victim after about one hour of recording the statement. Therefore we are of the clear opinion that doctor - PW.17 has issued the certificate mechanically without understanding the seriousness of such certificate. It seems he has issued the certificate at the instance of the local Taluka Executive Magistrate. Be that as it may, in view of the totality of the material on record and for the aforementioned reasons, the trial Court is justified in disbelieving the dying declaration Ex. P18 which seems to have been recorded under suspicious circumstances. 10. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on record clearly point out that what might have been stated in the dying declaration may not be correct. 11. The aforementioned discussion of us would make it clear that none of the dying declarations recorded during the course of investigation are worth believing and they are contradictory to one another. The versions of the doctors also are contradictory to one another. In the light of such material, it may not be possible for the Court to conclude that the prosecution has proved its case beyond reasonable doubt. Even on re-considering the material on record, we find that the trial Court is justified in acquitting the accused by giving benefit of doubt. In the light of such material, it may not be possible for the Court to conclude that the prosecution has proved its case beyond reasonable doubt. Even on re-considering the material on record, we find that the trial Court is justified in acquitting the accused by giving benefit of doubt. The view taken by the trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case. Hence no interference is called for. Appeal fails and the same stands dismissed.