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2016 DIGILAW 954 (KAR)

MALLIKARJUNA RAMANJINEAIAH v. STATE OF KARNATAKA

2016-12-13

K.SOMASHEKAR, RAVI MALIMATH

body2016
JUDGMENT : Ravi Malimath, J. The case of the prosecution is that accused No. 1 is the husband of the deceased Smt. Usha and accused No. 2 is the mother of accused No. 1. That on 07.05.2011, the deceased along with her husband had visited Roopanagudi to attend a marriage of their relative. On 08.05.2011, they returned back to Bellary at about 10.00 a.m. Thereafter, the accused picked up a quarrel with the deceased. At about 11.00 a.m., with an intention to kill her they suspected her fidelity and both of them poured kerosene on her and accused No. 1 lit the fire. As a result, the deceased sustained grievous bum injuries. She was taken to VIMS Hospital, Bellary and admitted in the burns ward. On receipt of MLC, the Tahsildar/Taluka Executive Magistrate visited the hospital and recorded the dying declaration of the victim. The mother of the deceased lodged a complaint before the APMC yard police station, Bellary, and a case was registered. Investigation was taken up. Charge-sheet was filed against the accused for the offences punishable under Sections 498A and 302 read with 34 of Indian Penal Code. The case was committed for trial. The accused pleaded not guilty. In order to prove its case, the prosecution examined 28 witnesses and marked Ex.P1 to Ex.P42(B) and (C) along with three material objects. Accused Nos. 1 and 2 were convicted for the offences punishable under Section 302 read with 34 Indian Penal Code and were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- each and in default of payment of fine shall undergo simple imprisonment for six months. Further, they were also convicted for the offence punishable under Section 498-A read with Section 34 of Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- each in default of payment of fine, to undergo simple imprisonment for one month. Aggrieved by the same, the appellants have preferred this appeal. 2. Sri. J. Basavaraj, learned counsel for the accused contends that the trial Court failed to consider the material evidence on record. The trial Court has accepted the dying declaration without any proof. The dying declaration does not prove the requirements in law. Therefore, the entire case of the prosecution case is faulty. 2. Sri. J. Basavaraj, learned counsel for the accused contends that the trial Court failed to consider the material evidence on record. The trial Court has accepted the dying declaration without any proof. The dying declaration does not prove the requirements in law. Therefore, the entire case of the prosecution case is faulty. That the dying declaration is made up by the prosecution, which cannot be accepted. Hence, he sought for reversal of the judgment and order and pleads for acquittal. 3. On the other hand, Sri. V.M. Banakar, Additional State Public Prosecutor defends the same. He contends that there are two dying declarations. The doctors have opined that the deceased was in a fit condition and she was capable to give her statement. Therefore, there is nothing to disbelieve the dying declaration Hence, he sought for dismissal of the appeal 4. Heard counsels and examined the records. 5. PW1 is the mother of the deceased. She has filed the complaint marked as Ex.P1, who has turned hostile. PWs.2 and 3 are the relatives and panchas for the spot panchanama Ex.P16. They have turned hostile. PW-4 is tin owner of the lorry and in his presence photographs were seized under Mahazar-Ex.Pl7 aid he has turned hostile. PW.5 is the pancha for the inquest as per Exs.P19 and P20 and has turned hostile. PWs.6, 7, 8, 9 and 10 are til witnesses to the said incident. All have given statement before the Taluka Executive Magistrate at the time of inquest as per Ex.P19 and have turned hostile. PW 11 is the Doctor, who has given fitness certificate as per Ex.P21. Ex.P22 is the dying declaration. PWs.12 and 13 are inquest panchas. They have turned hostile. PW 14-father of the deceased has turned hostile. PWs.15 and 16 are the neighbourers. They have not supported the case. They have turned hostile. PWs.17 and 18 who are stated to be the panchas have turned hostile. PW19-Tahsildar/Taluka Executive Magistrate has recorded the dying declaration as per Ex.P22. PW20 is the Doctor who had conducted postmortem has narrated that the death was due I to septicemia as a result of which she sustained 75% of the burn injuries on the body. PW21 has drawn the sketch of the house. PW22-Head Constable carried the dead body to the inquest and handed over the same to conduct the post-mortem. PW20 is the Doctor who had conducted postmortem has narrated that the death was due I to septicemia as a result of which she sustained 75% of the burn injuries on the body. PW21 has drawn the sketch of the house. PW22-Head Constable carried the dead body to the inquest and handed over the same to conduct the post-mortem. PW23-PSI of APMC yard police station has registered the case as per Ex.P34-FIR and recorded the statement of the victim as per Ex.P39. PW24-Police constable received MLC from the hospital authorities. PW25 is the PSI received the death intimation. PW26 is the Investigating Officer who partly conducted investigation and filed FSL report as per Ex.P41. PW27 is the doctor, who gave fitness certificate as per Ex.P40 with reference to the dying declaration-Ex.P39. PW28 is the Head Constable who visited the hospital after the receipt of MLC. Ex.P22 is the statement/dying declaration recorded on 09.05.2011 at 6.00 p.m. by PW19 and Ex.P39 is the another statement/dying declaration recorded after two days. The trial Court was of the view that the prosecution has established the dying declaration, which proves the guilt of the accused. That the dying declaration has been recorded in the presence of the Taluka Executive Magistrate. The doctor has certified that the patient was in a fit condition to give a statement and thereafter it has been recorded. Therefore, the trial Judge did not find any error in the case of the prosecution and it was accepted. Therefore, the accused was convicted. 6. We have considered in depth Ex.P22 and Ex.P39. Ex.P22 is the first statement of the deceased. It was recorded in the presence of the Taluka Executive Magistrate-PW 19. PW 11-doctor has certified with regard to the condition of the deceased to give a statement. She has implicated both the accused therein. Her LTM has been obtained. In the cross-examination he has stated that there was difficulty for the patient in speaking and breathing. PW27-a doctor has certified that the patient is fit to give statement. He has categorically stated in the cross-examination that both the hands of the deceased were burnt and therefore, she is not in a fit condition to affix her RTM or LTM at Ex.P39. 7. It is herein we find that there was a serious error committed by the trial Court in appreciating the evidence on record vis-a-vis Ex.P22 and Ex.P39. He has categorically stated in the cross-examination that both the hands of the deceased were burnt and therefore, she is not in a fit condition to affix her RTM or LTM at Ex.P39. 7. It is herein we find that there was a serious error committed by the trial Court in appreciating the evidence on record vis-a-vis Ex.P22 and Ex.P39. We are also of the view that the dying declaration in the instant case has to be considered as Ex.P39 and not Ex.P22. Ex.P22 is the first statement of the deceased recorded by the police. Therefore, it can be considered only as a statement under Section 161 of Cr.P.C. It would be improper to consider it as a dying declaration because the deceased survived the statement and moreover it was not the last statement made by the deceased. She once again makes a statement two days later i.e., on 10.05.2011 as per Ex.P39. Therefore, in our considered view, Ex.P39 has to be considered as a dying declaration. 8. There is serious contradiction in the dying declarations vis-a-vis Ex.P22 and Ex.P39. There are two aspects in regard to a dying declaration, which the trial Court has failed to appreciate. First is the capacity of the deceased to make a statement. There is ample evidence on record to indicate that the patient was in a fit condition to record the statement. There is evidence of the Taluka Executive Magistrate as well as the Doctor. They have opined that the deceased was in a fit condition to record the statement on 09.05.2011. However, on the previous day of 09.05.2011 she was not in a fit condition. This creates us doubt whether the deceased was in a position to give her statement or not. Ex.P22(b) evidences regarding right hand thumb impression of the deceased. The evidence of the Doctors-PWs.11 and 27 would clearly indicate that both her hands were burnt. PW11 has also admitted in his evidence that in the notes prepared by the nurse who was attending on the deceased that both the hands of the deceased were burnt. Therefore, the LTM or RTM of the patient could not have been taken at Ex.P22. Secondly, with reference to Ex.P39, the impression of the left leg greater toe has been taken at Ex.P39. It has been explained because both the hands of the deceased were burnt and no impression could be taken. Therefore, the LTM or RTM of the patient could not have been taken at Ex.P22. Secondly, with reference to Ex.P39, the impression of the left leg greater toe has been taken at Ex.P39. It has been explained because both the hands of the deceased were burnt and no impression could be taken. Therefore, the fact pleaded by the prosecution is that Ex.P22 contains RTM of the deceased and Ex.P39 contains left leg greater toe impression of the deceased. Thus, we are of the view that there is a major serious lapse on the part of the prosecution. There are various assumptions that can be drawn based on these contradictions when the prosecution witnesses themselves have narrated that the deceased could not have given her thumb impression as both her hands were burnt. It is also supported with other material on record as well as the notes prepared by the nurse who attended the deceased. The prosecution has failed to explain how there is a difference in the dying declarations Exs.P22 and P39. This clearly casts a shadow on the case of the prosecution. We have no hesitation to hold that the prosecution has failed to establish this very crucial aspect of the prosecution case. On their failure to explain the difference between Ex.P22 and Ex.P39, the case of the prosecution goes to the very root of the prosecution, which will make it fatal to the prosecution. 9. The trial Court, on the other hand, while considering the evidence of PWs.11 and 19 was of the view that the same cannot be a ground for raising any suspicion with regard to Ex.P22. We are unable to accept such a conclusion arrived at by the trial Court. We have no hesitation to hold that in view of the two statements/dying declarations of the deceased, there are various and serious contradictions in the case of the prosecution itself with regard to Ex.P22 which contains RTM and Ex.P39, which contains the toe impression. The same has not been explained by the E prosecution. 10. Further it is seen that the scribe of Ex.P39 was not examined and therefore, it also leads to suspicion. We have no hesitation to hold that non-examination of the scribe to Ex.P39 is also an important suspicion that would render the case of the prosecution to be fatal. The same has not been explained by the E prosecution. 10. Further it is seen that the scribe of Ex.P39 was not examined and therefore, it also leads to suspicion. We have no hesitation to hold that non-examination of the scribe to Ex.P39 is also an important suspicion that would render the case of the prosecution to be fatal. The finding of the trial Court that it amounts to a minor discrepancy, which does not go to the root of the case of the prosecution, is not acceptable. The serious difference is itself between Ex.P22 and Ex.P39, which would necessarily go the very root of the prosecution case. 11. There are various discrepancies in the prosecution case. There are serious contradictions in the evidence of the prosecution. The prosecution has not been able to explain the statements/dying declarations of the deceased. There are serious contradictions in both of them. Hence, we have no hesitation to hold that the trial Court has committed a perversity in misreading the evidence on record. Hence, we are of the view that the judgment requires to be reversed. 12. Hence, for the aforesaid reasons, the appeal is allowed. 13. The Judgment of conviction dated 12th April, 2012 passed in Sessions Case No. 153 f of 2011 by the learned Sessions Judge, Bellary, is reversed. The accused-appellants are acquitted of the charges levelled against them under Sections 498(A), 302 r/w 34 of Indian Penal Code. 14. The Central Prison authorities at Bellary District are directed to release the appellants-Mallikarjuna S/o Ramanjineaiah and Smt. Yerramma W/o Ramanjineaiah forthwith, if not required in other cases. 15. The Registry to communicate the operative portion of this order to the jail authorities forthwith.