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2016 DIGILAW 29 (KAR)

Nagaraju v. State of Karnataka

2016-01-07

K.N.PHANEENDRA, MOHAN M.SHANTANAGOUDAR

body2016
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of acquittal dated 23.02.2011 passed by the Additional Sessions Judge, Fast Track Court-XIV, CCC, Bengaluru, in S.C. No. 522/2009, is the subject matter of these appeals. By the impugned judgment and order, the Trial Court has acquitted the accused for the offence punishable under Section 302 of IPC and convicted him for the offence punishable under Section 306 of IPC. 2. Crl. A. No. 468/2011 is filed by the convicted accused praying for his acquittal, whereas Crl. A. No. 1038/2012 is filed by the State questioning the order passed by the Trial Court acquitting the accused for the offence punishable under Section 302 of IPC. 3. The brief facts of the case leading to these appeals are as under:- The deceased Vijayalakshmi was the wife of the accused; Their marriage was performed on 18.11.1991; Out of their wed-lock, two children were born viz., a daughter by name Kum. Monisha (P.W. 14) and a son by name Manoj. Both them were school going children. The accused, deceased and their children were living in the house bearing No. 8, 2nd cross, 4th Main, Agrahara Dasarahalli, Bengaluru. The accused was an employee of the Bengaluru City Corporation. However he was not regular in attending to his duties; He was a drunkard; He used to consuming alcohol and remain in house or wander here and there; He was not maintaining the family; Even the school fee of his children was borne by the deceased, who was working as a maid servant in somebody's house; Despite the repeated advises of the elders in the family as well as by the deceased, the accused did not mend his conduct, on the contrary, the accused used to pick-up quarrel and used to assert that he would not mend his conduct and he would kill his wife/deceased. 4. At 10.30 a.m. on 01.01.2009 once again the accused did not go to job, for which the deceased advised him not to stay back in the house and requested him to go and attend the work. Being enraged by her advises, the accused picked-up quarrel with the deceased and with an intention to kill the deceased, he poured kerosene on her and set her ablaze and thereafter fled away from the scene. 5. Being enraged by her advises, the accused picked-up quarrel with the deceased and with an intention to kill the deceased, he poured kerosene on her and set her ablaze and thereafter fled away from the scene. 5. CW-8: Krishnappa (neighbour) and CW-9: Lakshmamma (Close relative of the deceased) came to the scene, extinguished the fire, gave first aid and shifted the victim to Victoria Hospital with due intimation to the relatives of the deceased. On getting intimation, the Kamakshipalya Police visited Victoria Hospital and recorded the statement of the deceased as per Ex. P11, based on which, a criminal case was registered in Kamakshipalya Police Station in Crime No. 2/2009 for the offence punishable under Section 307 of IPC initially. At 5.20 p.m. on 01.01.2009, the victim succumbed to the injuries and later the offence was converted to 302 of IPC. PW-18: The Police Inspector took-up investigation and laid charge sheet. 6. In order to prove its case, the prosecution in all examined 19 witnesses and got marked 25 Exhibits (Ex. P1 to Ex. 25) and 2 Material Objects. On behalf of the defence 5 Exhibits (Ex. D1 to Ex. D5) were got marked. 7. The trial court on evaluation of the materials on record and on hearing the advocates appearing on both sides, acquitted the accused of the offence punishable under Section 302of IPC by giving benefit of doubt in favour of the accused. However, the Trial Court, having found that it is a case of suicide because of the harassment by the accused, convicted him for the offence punishable under Section 306 IPC. 8. Sri Deepak, the learned advocate appearing on behalf of the convicted accused (Appellant in Crl. A. No. 468/2011) taking us through the materials on record has strenuously contended that the Trial Court was not justified in convicting the accused for the offence punishable under Section 306 of IPC, in as much as there is nothing on record to show that the accused instigated the deceased in whatever manner to commit the suicide; There is no believable material to show that the victim was tortured by the accused; The usual minor quarrels between the husband and wife are mistaken by the Trial Court for coming to conclusion. On these grounds, the learned counsel prays for acquittal of the accused. 9. On these grounds, the learned counsel prays for acquittal of the accused. 9. Sri Vijayakumar Majage, the learned Additional S.P.P., per contra, submitted that the Trial Court is not justified in acquitting the accused for the offence punishable under Section 302 of IPC. He further submits that the Dying Declaration-Ex. P11 amply shows that it was the accused and the accused alone, who committed murder of the deceased. Ex. P11 is proved by the evidence of P.W. 10 (Head Constable) and P.W. 13 (Doctor). Since the victim was in a fit condition to make statement, the Dying Declaration as per Ex. P11 recorded by P.W. 10 (Head Constable) in the presence of the Doctor, could not have been rejected by the trial Court; According to him, the document at Ex. D4 is suspicious and in as much as there appears to be certain interpolations in the said document. 10. There are no eye-witnesses to the incident in question. The case of the prosecution in respect of offence under Section 302 of IPC is mainly based on the Dying Declaration-Ex. P11 and the evidence of the Doctor (P.W. 13) and as well as the scribe of Dying Declaration (P.W. 10). There cannot be any dispute that, if the Dying Declaration is duly proved, it can be the sole basis for conviction of the accused under Section 302 of IPC. But the Dying Declaration needs to be proved in accordance with law. All the attending circumstances will have to be considered by the Trial Court while relying upon the Dying Declaration. 11. Admittedly the victim was admitted to the hospital immediately after the incident by CWs. 8 & 9. CW. 8 is the neighbour of the deceased, whereas C.W. 9 is the close relative of the deceased. Both of them shifted the victim to Victoria Hospital. At the time of admission of the victim to the Victoria Hospital, Bengaluru, at 12.10 p.m., C.W. 8 had accompanied the victim to the hospital. P.W. 12 was the Doctor, who admitted the victim to the hospital and he had entered certain particulars in MLC Register-Ex. D4. Ex. D4 reveals that the patient was admitted with the history of sustaining burns by herself at her house in the morning at about 11.00 a.m. on 01.01.2009, other details were not known. It is also mentioned in the MLC Register-Ex. D4. Ex. D4 reveals that the patient was admitted with the history of sustaining burns by herself at her house in the morning at about 11.00 a.m. on 01.01.2009, other details were not known. It is also mentioned in the MLC Register-Ex. D4 that the patient was conscious and oriented; burns present over face, neck, chest, abdomen, both lower limbs, both upper limbs. On admission of the victim, the patient was referred to burns ward and left thumb impression of the victim-Vijayalakshmi was taken, which was endorsed by C.W. 9-Lakshmi, and whose signature was also taken on Ex. D4. Unfortunately the prosecution has not placed the case sheet maintained by the Victoria Hospital for perusal before the court. If the treatment sheet/case sheet maintained by the Victoria Hospital were to be on record, this court would have been in a better position to appreciate to know as to whether the victim was really in a fit condition to make such a statement or not and to find-out as to whether any sedative injection, medicine, etc. were given to the victim or not. Unfortunately, the vital documents are not placed before the court. It is also relevant to note that the very important document-Ex. D4, which came into effect immediately on admission of the victim, was not produced by the prosecution and it was produced by the defence in the cross examination of the Doctor-P.W. 12, who heard the victim at the time of admission of the victim and who recorded the history, as mentioned supra in MLC register. Moreover, CWs. 8 & 9 were also not examined by the prosecution. P.W. 12 has deposed before the court that the victim was brought to the hospital at about 12.10 p.m. by one lady named Lakshmi (C.W. 9). The victim was admitted to hospital by the said Doctor. He has admitted in the cross examination that he made notes on MLC Register-Ex. D4; He has further admitted that it is clearly recorded by him that the victim herself set ablaze, which means, she has given the history. In other words, he submits that the victim herself had given the history of self-infliction of burn injuries. He has admitted in the cross examination that he made notes on MLC Register-Ex. D4; He has further admitted that it is clearly recorded by him that the victim herself set ablaze, which means, she has given the history. In other words, he submits that the victim herself had given the history of self-infliction of burn injuries. In the light of such clear version of the Doctor, which has remained unquestioned by the prosecution any further, it is clear that the first version of the victim was that she set herself ablaze and it was not the accused, who caused burn injuries. 12. As mentioned supra, the treatment sheet maintained by the Victoria Hospital is not placed on record by the prosecution. However, at about 4.00 p.m., the statement of the victim is recorded as per Ex. P. 11 by the Head Constable (P.W. 10) in the presence of the Doctor-P.W. 13. The Head Constable (P.W. 10) has deposed that on getting a memo from the higher officials, he went to Victoria Hospital and recorded the statement of the victim as per Ex. P11 in the presence of the Doctor-P.W. 13. At the time of recording Ex. P11, brother and sister of the deceased viz., P.Ws. 8 & 5 were also present. It is specifically admitted by P.W. 10 that he commenced recording of the statement of the victim at about 4.00 p.m. and it took 45 minutes to completely record the statement of the victim, which means he recorded the Dying Declaration from about 4.00 p.m. to 4.45 p.m. and immediately thereafter at about 5.20 p.m. the victim succumbed to the injuries. Thus the real question to be decided is as to whether the victim was in a position to make statement from 4.00 p.m. to 4.45 p.m. on that day, just prior to her death. The postmortem report as well as other medical evidence on record clearly reveal that the victim had sustained 90 to 95% burns all over the body. The incident has taken place at 10.30 a.m. and the death has occurred at 5.20 p.m. During the interregnum, the two statements were allegedly given by the victim before the doctor and both are contrary to each other. The Doctors- P.W. 12 & P.W. 13, who were present at the time of recording the Dying Declaration-Ex. D4 and Ex. The incident has taken place at 10.30 a.m. and the death has occurred at 5.20 p.m. During the interregnum, the two statements were allegedly given by the victim before the doctor and both are contrary to each other. The Doctors- P.W. 12 & P.W. 13, who were present at the time of recording the Dying Declaration-Ex. D4 and Ex. P11 respectively, have supported the respective Dying Declarations before the court. Both of them have deposed that the victim was in a fit condition to make statements and she gave statements as found in the said documents. 13. If we believe the depositions of the doctors, then both the Dying Declarations have to be believed. If we do not believe the version of the doctors that the victim was in a fit conditions to make statement, then, both the Dying Declarations have to be disbelieved. 14. Be that as it may. Ex. D4 is at first point of time. Whereas, Ex. P11 is recorded 25 minutes prior to the death of the victim/deceased. Ex. P11 was not only recorded in the presence of the police, but also recorded in the presence of the close relatives (P.Ws. 5 & 8), who are none others than the brother and sister of the deceased. In this context, Sri Deepak, learned counsel appearing on behalf of the accused submitted that there are two conflicting Dying Declarations and that there is every likelihood of generating the statements without the knowledge of the victim. The post-mortem report discloses that the entire body from head to toe was burnt. The very fact that, as mentioned supra, the post-mortem report discloses that the victim had sustained 90 to 95% burns all over the body including face and lips. Under these circumstances, the trial court is justified in disbelieving Ex. P11 particularly when the prosecution has failed to place on record the treatment sheet maintained by the hospital. The non-placing of the relevant medical records before the court would hamper better appreciation of evidence. In this view of the matter, the trial court, in our considered opinion, is justified in disbelieving the Dying Declaration-Ex. P11. As mentioned supra, both the Dying Declarations-Ex. P11 & D4 are contrary to each other and as well as mutually destructive. 15. In the absence of Dying Declarations, the only other material found against the accused is motive and harassment. 16. The evidence of P.Ws. P11. As mentioned supra, both the Dying Declarations-Ex. P11 & D4 are contrary to each other and as well as mutually destructive. 15. In the absence of Dying Declarations, the only other material found against the accused is motive and harassment. 16. The evidence of P.Ws. 5, 8 and 14 are relevant for the purpose of deciding the matter for the offence punishable under Section 306 of IPC. PW-14 is a minor daughter of the accused and the deceased. P.Ws. 4, 5 and 8 are sisters and brother of the deceased. P.Ws. 1 & 2 are father and mother of the deceased. All these witnesses are the near relatives of the deceased. Naturally, they will have all the information relating to the relationship between the deceased and the accused. The deceased being the victim of harassment by the husband-accused, had conversed with the aforementioned witnesses who are none other than the parents, sisters and brother. PW-14 being the minor daughter was very much knowing about the state of affairs in the house. She would be a mute spectator for the harassment by the accused. PW-14 was just aged about 8-9 years at the relevant point of time. These witnesses have consistently and cogently deposed about the ill-treatment meted by the accused against the deceased. The accused was a drunkard and though he was an employee working in the City Corporation, Bangalore, he did not prefer to work, but he preferred to spend time and life leisurely by consuming alcohol from morning to evening. The deceased had to look after the family affairs including the educational expenses of the children. She had to work as maid servant in some person's house and with whatever little earnings she got from such job, she used to maintain the entire family including the school fees of the children. In that regard, frequent quarrels used to take place between the husband and wife. The deceased used to quarrel and advice her husband to mend his conduct. But the husband did not mend his conduct despite repeated requests and warnings given even by panchayatdars. 17. The evidence on record, more particularly of all these witnesses prove beyond all reasonable doubt that, the victim was being tortured by the accused on day to day basis that too without any fault of the deceased. But the husband did not mend his conduct despite repeated requests and warnings given even by panchayatdars. 17. The evidence on record, more particularly of all these witnesses prove beyond all reasonable doubt that, the victim was being tortured by the accused on day to day basis that too without any fault of the deceased. It seems the deceased could not tolerate the ill-treatment meted-out repeatedly by her husband and consequently, she has committed suicide in her matrimonial house. 18. There is no evidence in proving the last seen circumstance against the accused, but the fact remains that the victim lost her life in the house. Since it is not proved by the prosecution, that it is a case of murder, the only inference that can be drawn is that it is a case of suicidal death. As mentioned supra, the deceased having felt difficult to tolerate the torture, has decided to end her life. The accused has not explained as to which circumstance has forced the deceased to commit suicide. He has also not explained as to under what circumstances, the death has occurred in the matrimonial house. 19. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that the Trial Court is justified in concluding that it is the accused, who abetted commission of suicide by the deceased. Hence, the Trial Court has rightly convicted the accused for the offence punishable under Section 306 of IPC. 20. We may also mention here, that State has not filed any Appeal praying for enhancement of sentence imposed by the Trial Court. Having regard to the entire material on record, we are of the considered opinion that the Trial Court is justified in convicting the accused for the offence punishable under Section 306 of IPC and acquitting the accused for the offence punishable under Section 302 of IPC. Since the judgment and order passed by the Trial Court is just and proper and the view taken by the Trial Court while acquitting the accused for the offence punishable under Section 302 of IPC is one of the possible views, in the facts and circumstances of the case, no interference is called for. Appeals fail and accordingly the same stand dismissed.