State Of Karnataka vs Shivalingappa S/O Bettappa ...
2021 Latest Caselaw 3161 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 18TH DAY OF AUGUST, 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           CRIMINAL APPEAL NO.100012 OF 2014
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE POLICE SUB-INSPECTOR,
KANAKAGIRI,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                             ...APPELLANT
(BY SRI. RAMESH B CHIGARI, HCGP)

AND
SHIVALINGAPPA S/O BETTAPPA DANDIN,
AGED ABOUT 26 YEARS, OCC: AGRICULTURE,
R/O. KANAKAPUR, TALUK GANGAVATI,
DISTRICT KOPPAL.
                                           ...RESPONDENT

(BY SRI. S. S. YADRAMI, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
05.09.2013 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KOPPAL, IN S.C.NO.33/2012 AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
05.09.2013 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KOPPAL, IN S.C.NO.33/2012 AND CONVICT
THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 498-A,
306, 323, 504 OF IPC.
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     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
10.08.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

The appellant-state has preferred this appeal under

Section 378(1) & (3) of the Code of Criminal Procedure,

1973 against the judgment of acquittal dated 05.09.2013

in S.C.No.33/2012 passed by the Principal District and

Sessions Judge, Koppal and sought for allowing the appeal

by setting aside the judgment of the Trial Court and

convict the respondent-accused.

2. For the said of convenience, parties are

referred as per ranks occupied by them before the Trial

Court.

3. The brief facts leading to the case are that the

marriage of deceased-Shantamma was solemnized about

1½ years prior to her death with her maternal uncle i.e.

accused. The marriage was solemnized in Beeralingeshwar

temple and out of the said wedlock no issues were born.

That, the deceased was residing with her husband/accused

and her mother-in-law. The accused was suspecting the

fidelity of the deceased and he used to subject her to ill-

treatment regularly by abusing her. He has subjected her

to both physical and mental ill-treatment and this fact was

informed by the deceased to her parents. That on

07.06.2011, at night, the accused abused the deceased in

filthy language and also suspected her fidelity and

assaulted her stating that she can go and die somewhere

else. It is also alleged that on 08.06.2011, night at 8.00

p.m., the accused did not talk with the deceased properly

and ignored her. Then the deceased thought that if she

pretends of committing suicide, her husband will take care

of her properly and she poured kerosene by herself and lit

fire. When she was crying for help, her father-in-law,

brother-in-law and mother-in-law rushed to the spot and

extinguished the fire and she was immediately shifted in

Ambulance to Gangavathi Government Hospital. There, the

investigating officer recorded her complaint and without

responding to the treatment, she succumbed because of

burn injuries and hence, her complaint itself was treated

as dying declaration. Prior to her death, the investigating

officer has recorded statement of the victim in the

presence of doctor and he has also drawn mahazar and

after her death, inquest was done, postmortem was also

done and he also recorded the statement of material

witnesses. Then he found that the accused has committed

offence punishable under Sections 498A, 306, 326 and 504

of IPC and hence, submitted charge sheet. After

submission of the charge sheet, as there were sufficient

grounds to proceed against the accused, the learned

Magistrate has taken cognizance of the offence and after

furnishing the copies of the prosecution papers, committed

the matter to the Sessions Court. The matter came to be

placed before the Principal District and Sessions Judge and

he secured the presence of the accused and he was

enlarged on bail. After hearing the accused and defence

counsel, the charge was framed against the accused for

the offences punishable under Sections 498A, 306, 323

and 504 of IPC. The accused pleaded not guilty and

claimed to be tried. To prove the guilt of the accused,

prosecution examined in all 24 witnesses as PW1 to PW24

and also got marked 23 documents as per Ex.P1 to Ex.P23

and four material objects were also marked as M.O.1 to

M.O.4.

4. After conclusion of evidence of the prosecution,

the statement of accused under Section 313 of Cr.P.C.,

was recorded to enable the accused to explain

incriminating evidence appeared against him in the case of

the prosecution. The case of the accused is of total denial

and he did not choose to lead any oral or documentary

evidence by way of defence.

5. The learned Sessions Judge, after hearing the

arguments advanced by both the parties, framed the

following points for consideration:

1. C©üAiÉÆÃd£É ¸ÀA±ÁAiÀÄwÃvÀªÁV DgÉÆæ vÀ£Àß ºÉAqÀw ±ÁAvÀªÀÄä¼À£ÄÀ ß PËægåÀ ¢AzÀ £ÀqɹPÉÆAqÀÄ DvÀäºÀvÉå ªÀiÁqÀ®Ä ¥ÉæÃgɦ¹ ¨sÁgÀwÃAiÀÄ zÀAqÀ

¸ÀA»vÉ PÀ®A 498(C) Cr zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀ J¸ÀVzÁÝgÉAzÀÄ ¹zÀÝ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?

2. ºÉAqÀwAiÀÄ £ÀqÀvÉAiÀÄ£ÀÄß ±ÀAQ¹ CªÀ¼À ¸ÀAUÀqÀ ¸ÀA¸ÁgÀ ªÀiÁqÀ®Ä EµÀÖ EgÀĪÀÅ¢®è J°èAiÀiÁzÀgÆ À ºÉÆÃV ¸Á¬Ä JAzÀÄ CªÀ¼À ªÉÄÃ¯É ºÀUÎÀ ¢AzÀ ºÀ¯Éè ªÀiÁr DvÀäºÀvÉåUÉ ¥ÉæÃgɦ¹ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 306gÀr DgÉÆæ zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀªÉ¸ÀVzÁÝ£ÉAzÀÄ C©üAiÉÆÃd£É ¸ÀA±ÁAiÀÄwÃvÀ ªÁV ¹zÀÝ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?

3. ºÉAqÀwAiÀÄ £ÀqÀvÉAiÀÄ£ÀÄß ±ÀAQ¹ ¤£Àß ¸ÀAUÀqÀ ¸ÀA¸ÁgÀ

ªÀiÁqÀ®Ä EµÀÖ EgÀĪÀÅ¢®è J°èAiÀiÁzÀgÆ À ºÉÆÃV ¸Á¬Ä JAzÀÄ CªÀ¼À ªÉÄÃ¯É ºÀUÎÀ ¢AzÀ ºÀ¯èÉ ªÀiÁr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 323gÀr DgÉÆæ zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀªÉ¸ÀVzÁÝ£ÉAzÀÄ C©üAiÉÆÃd£É ¸ÀA±ÁAiÀÄwÃvÀªÁV ¹zÀÝ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?

4. CzÉà jÃw ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 504gÀr

±ÁAvÀªÀÄä EªÀ½UÉ ¸ÁªÀðd¤PÀ ±ÁAvÀvÁ¨sÀAUÀ ªÀiÁqÀ®Ä ¥ÀæZÉÆâ¹ DgÉÆæ zÀAqÀ¤ÃAiÀÄ C¥ÀgÁzsÀªÉ¸ÀVzÁÝ£ÉAzÀÄ ¸ÀA±ÁAiÀÄwÃvÀªÁV ¹zÀÝ ¥Àr¸ÀÄvÀÛzÉAiÉÄÃ?

6. The learned Sessions Judge answered all the

points in negative and acquitted the accused. Being

aggrieved by this judgment and order of acquittal, the

appellant-state has preferred this appeal.

7. Learned HCGP appearing for state has

contended that though all the prosecution witnesses have

turned hostile, there are two dying declarations which

point out a finger against the accused and specifically

establish the ill-treatment to the deceased and the way

she was abetted to commit suicide. The learned Sessions

Judge has not properly appreciated the dying declarations.

The medical evidence also supports the dying declarations

and considering these aspects, the Trial Court has not

justified in acquitting the accused. Hence, he has sought

for setting aside the impugned judgment.

8. Learned counsel for respondent would submit

that except alleged dying declarations, there is no other

material to establish that the accused has ill-treated the

deceased and abated her in committing suicide. He would

further contend that both the dying declarations are

inconsistent and they are not corroborated by any other

material evidence. He would further submit that the doctor

has not even certified that the witness was in sound state

of disposal at the time of giving declaration and hence, he

would contend that the judgment of acquittal passed by

the Sessions Judge does not call for any interference and

hence, he has sought for dismissal of the appeal.

9. Having heard the arguments and perusing the

records, it is evident that in the instant case though as

many as 24 witnesses were examined, all the material

witnesses, including the parents of deceased, have turned

hostile to the case of the prosecution. There is no dispute

about the fact that the deceased died because of burn

injuries. The case of the prosecution is that the accused

abetted the deceased in committing suicide. To attract the

provisions of Section 306 of IPC, the prosecution is

required to establish the ingredients of Section 107 of IPC,

which reads as under:

107. Abetment of a thing.--A person abets the doing of a thing, who--

(First) -- Instigates any person to do that thing; or

(Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

10. Hence, the prosecution is required to establish

that the accused has instigated or intentionally abetted the

deceased in committing suicide. But in the instant case,

none of the witnesses have deposed regarding involvement

of the accused. Further, they have denied the fact that the

accused has ill-treated the deceased.

11. The prosecution has placed its reliance on

Ex.P18 and Ex.19. Ex.P18 is the complaint and after death

of the deceased, it was treated as dying declaration. But

the evidence of PW16-medical officer establishes the fact

that he is unable to say that the deceased had put her RTM

on the complaint-Ex.P18. The alleged thumb impression,

said to have been obtained of the deceased is also not

marked. It is not identified by any of the persons and

PW16 is unable to identify it and his evidence discloses

that the deceased did not put it in his presence. Further,

he has not certified that the deceased was in sound state

of giving her statement, when statement has begun.

Hence, Ex.P18 does not have any relevance and it cannot

be accepted.

12. The other document, that prosecution has

relied on, is Ex.P19, which is alleged statement said to

have been given by the deceased before the Executive

Magistrate. It is also important to note here that according

to PW16, it was also recorded in his presence. The

recklessness committed by this witness is discussed by the

Trial Court and that is evident from his conduct in

recording the dying declaration. He did not certify that

witness was in oriented position so as to give her

statement and she was mentally fit in giving her

statement. Admittedly, the deceased was suffering 70% of

burn injuries. But very interestingly at the end, he certified

that the patient is mentally fit to give her statement. But

said certificate does not find in the beginning. It is also

important to note here that the RTM pertaining to the

deceased was not attested by the Executive Magistrate,

who alleged to have recorded the statement of the

deceased. The Executive Magistrate himself was examined

as PW19 and in the cross-examination, he claims that

before recording the statement, he obtained certificate

from the medical officer regarding mental fitness of the

deceased. But no such certificate is forthcoming. Further,

he claims that it is written in his own handwriting, but the

evidence of medical officer discloses that it was written by

the Assistant, who accompanied the witness. He has also

admitted that he did not obtain any certificate from

medical officer regarding the fitness of the deceased.

Hence, Ex.P19 is also under suspicion. Under such

circumstances, there was need for corroboration of said

dying declaration.

13. The learned HCGP has placed his reliance on a

decision of the Hon'ble Apex Court in the case of Laxman

v. State of Maharashtra reported in AIR 2002 SC 2973

and contended that the absence of certificate of doctor as

to fitness of mind of a declarant would not render dying

declaration unacceptable, but that was based on other

material corroboration. But in the instant case, there is no

corroboration forthcoming. Looking to the principles

enunciated in the above said decision, it does not come to

the aid of the prosecution in any way.

14. On the contrary, the learned counsel appearing

for respondent-accused has placed reliance on the decision

of the Hon'ble Apex Court in the case of Ramilaben

Hasmukhbhai Kristi and another v. State of Gujarat

reported in (2002) 7 SCC 56 wherein it is clearly

observed that doctor certificate about mental fitness of

declarant is essential. Further, it is alleged that dying

declaration alone cannot be sole basis for convicting the

accused and it can happen only if it is free from doubt and

inspires confidence. But in the instant case, the dying

declaration Ex.P19 is not free from doubt and considering

this aspect, it requires corroboration.

15. The learned counsel for respondent has further

placed reliance on the decision of the Hon'ble Apex Court

in the case of Leela Srinivasa Rao v. State of A.P.

reported in (2004) 9 SCC 713, wherein it is observed

that when there are two inconsistent dying declarations

and in the absence of any other evidence, it is not safe to

act solely on the said dying declarations to convict the said

person.

16. He further placed his reliance on the decision

of the Hon'ble Apex Court in the case of State of Punjab

v. Parveen Kumar reported in (2005) 9 SCC 769 and in

the case of P. Mani v. State of T. N. reported in (2006)

3 SCC 161. In the above said decisions, the Hon'ble Apex

Court has observed that the dying declarations recorded

under Section 32 must be wholly reliable and in case of

suspicion, it is necessary to have corroboration. In the

instant case, the doctor has given his evidence, which

discloses that the dying declaration is not wholly

acceptable as he has not certified the mental state of the

victim initially. The evidence of the medical officer as well

as Executive Magistrate, who has recorded the dying

declaration are inconsistent. Further, except dying

declarations, there is no other material evidence and even

if these dying declarations are taken into consideration, it

simply asserts that she was being ill-treated and in order

to blackmail her husband, she committed suicide. The first

dying declaration is inconsistent as against second dying

declaration and which declaration is required to be

believed is a question. Looking to these facts and in the

absence of any other independent material, it is not fit to

believe the dying declarations of the deceased. Looking to

these circumstances, the Trial Court is justified in

acquitting the accused. In the given circumstances, the

view taken by the Trial Court is more probable rather than

the guilt of the accused and hence, that view cannot be

disturbed and looking to the evidence on record, the other

view is not possible. Under these circumstances, the

learned Sessions Judge is justified in acquitting the

accused in the absence of any other material regarding

fitness including the offence of ill-treatment and

abatement. Under such circumstances, in the absence of

any other material, question of interfering with the

judgment of acquittal does not arise at all. The Trial Court

is justified in acquitting the accused and accordingly, I

proceed to pass the following:

ORDER

The above appeal is dismissed and the judgment of acquittal dated 05.09.2013 in S.C.No.33/2012 passed by the Principal District and Sessions Judge, Koppal is hereby confirmed.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE

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