The State Of Karnataka vs Shantha @ Shanthasetty @ ...
2022 Latest Caselaw 7212 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 05TH DAY OF MAY, 2022

                            BEFORE

            THE HON'BLE MR. JUSTICE S. RACHAIAH

              CRIMINAL APPEAL NO.1151 OF 2011

BETWEEN:

THE STATE OF KARNATAKA
BY KOLLEGAL RURAL POLICE STATION
                                                  ... APPELLANT
(BY SRI K. NAGESHWARAPPA, HCGP) (PH)

AND:

SHANTHA @ SHANTHASETTY @ SHANTHARAJU
S/O MADASETTY
AGED ABOUT 25 YEARS
R/AT KUNTHURMOLE VILLAGE,
KOLLEGAL TALUK.
                                               ... RESPONDENT
(BY SRI N.S. SAMPANGIRAMAIAH, AMICUS CURIAE) (VC)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3)
CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGMENT DATED 3.6.11 PASSED BY THE SESSIONS JUDGE AND PO,
FTC, KOLLEGAL IN S.C.NO.22/09 - ACQUITTING THE RESPONDENT
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 341,354,323,504
AND 306 OF IPC.

       THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 01.04.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
                                      2




                             JUDGMENT

The State - the appellant herein has preferred this appeal

being aggrieved by the judgment and order of acquittal passed

in S.C.No.22/2009 dated 03.06.2011 by the Fast Track Court,

Kollegala, for the offence under sections 341, 354, 323, 504,

306 of IPC.

2. Brief facts of the case are as follows:-

It is the case of the prosecution that, on 12.06.2008 at

about 3.00 p.m., the Victim was standing in front of her house at

Kunthurmole village. The accused came near her house and

quarreled with her stating why she had quarreled with his wife in

the Sangha. The Accused further dragged her nighty and

caught her tuft and assaulted her with hands and also abused

her in filthy language. He further told her that "go and die

instead of alive". The accused has insulted the Victim in a public

place. The Victim, after having been insulted, decided to end

her life and brought the kerosene tin and poured the kerosene

on her, and set the fire herself. Consequently, she has sustained

burning injury. The Victim's husband who was sitting in the

nearby place of the locality, had heard the sound of quarrel from

the side of his house and rushed to the spot and saw that his

wife was igniting. Immediately P.W.2 and other co-villagers

have shifted the Victim to the hospital. There she succumbed to

the injuries on 17.06.2008 at about 12.30 a.m.

3. At the time of treatment, the Doctor has informed

the police about the intention of the deceased to make her

statement about the incident. The Police Head Constable No.136

visited the hospital on 12.06.2008 at about 18.30 hours and

recorded the statement of the Victim and registered the case in

Crime No.114/2008 under sections 354, 341 and 323 of IPC.

Later, after the death of the Victim, a requisition was made to

incorporate the provision under section 306 of IPC. Accordingly,

a charge-sheet came to be filed by the respondent - Police for

the offences under sections 354, 341, 323, 504 and 306 of IPC.

4. Since the offence under section 306 of IPC is

exclusively triable by the Court of Sessions, the learned

Magistrate committed the case to the Sessions Court for further

course of action. The Sessions Court framed the charges for the

above said offences, read over and explained the same in the

language known to the accused. The accused denied it as false,

and he claimed to be tried.

5. In order to prove the case of the prosecution, the

prosecution has examined nine witnesses, i.e., PW.1 to PW.9,

and got marked the documents Ex.P1 to Ex.P10 and identified

the material object M.O.1.

6. The trial Court, after having considered the oral and

documentary evidence, opined that the prosecution had failed to

prove the case beyond reasonable doubt. Hence, the trial Court

passed the impugned judgment and order of acquittal.

7. Being aggrieved by the impugned judgment and

order of acquittal, the State has preferred this appeal.

8. Heard learned counsel for the parties.

9. Sri.K.N.Nageshwarappa, learned HCGP, vehemently

contended that the impugned judgment of acquittal passed by

the Fast Track Court/trial Court is erroneous, contrary to the

material on record, cannot be sustained under the law, and liable

to be set - aside. Learned HCGP for the State further contended

that PW.2 is the deceased's husband, and PW.3 is an

independent witness. Evidence of PW.6 - The Doctor, who

treated the injured and endorsed the statement recorded by

PW.8, states that the victim was fit to state the incident. The

law is well settled that a conviction can be based, only on the

dying declaration, if it inspires the confidence of the Court. Here

in this case, the Victim has spoken about the incident, and the

same has been recorded by the Head Constable and endorsed by

the Doctor regarding her State of mind; therefore, it would be

sufficient to convict the accused. The trial Court ignored to

appreciate the same, which led to the judgment of acquittal.

Hence, the learned HCGP sought to allow the appeal.

10. Per contra, Sri.N.S.Sampangiramaiah, learned

Amicus Curiae who is appearing for the respondent, while

justifying the judgment of acquittal contending that the trial

Court has rightly acquitted the accused after having gone

through the oral and documentary evidence.

Learned Amicus Curiae further contended that the

respondent has got double presumption of innocence, the

Appellate Court while re-appreciating the evidence of the trial

Court, has to keep in mind the scope of appeal as envisaged

under the provision of section 386 of Cr.P.C. The Appellate

Court has limited scope while re-appreciating the order of

acquittal passed by the trial Court. Hence, he sought to dismiss

the appeal.

11. I have given my anxious and thoughtful

consideration to the arguments advanced by the learned counsel

for the parties, and after having gone through the oral and

documentary evidence available on record, the questions which

arise for my consideration are:-

(a) Whether the trial Court is justified in

acquitting the accused for the offences under

Sections 341, 354, 323, 504 and 306 of IPC?

(b) Whether the State - Appellant has made

out ground to interfere with the impugned judgment

and order of acquittal passed by the Fast Track

Court, Kollegala, in S.C.No.22/2009?

12. This Court being the first Appellate Court, in order to

re-appreciate the entire evidence and material on record, it is

relevant to have a cursory look upon the evidence of the

witnesses.

(a) PW.1 - Madashetty is the father-in-law of the

deceased. He has lodged the complaint as per Ex.P1

and deposed that, there was a quarrel between the

wife of the accused and the deceased in Self Help

Organization. The women of the Village were running

the same. The accused was told about the incident

by his wife. After hearing about the incident from

his wife, he went near the Victim's house and

started insulting her in front of the public. Further,

the accused dragged her nighty and held her tuft

firmly and assaulted her. Consequently, his

daughter-in-law committed suicide by pouring

kerosene on herself and setting herself ablaze. He

has supported the case of the prosecution.

(b) PW.2 - Siddashetty is the husband of the deceased.

He says that, two years' ago, his wife had been to

Sangha. At about 1.00 p.m., when he was sitting on

the dais (Veranda) of the relative's house, he heard

the sound of quarrel from the side of his house. Soon

after having listened to the sound, he rushed to the

spot. The accused came from the opposite direction.

PW.2 further deposes that he saw his wife being

burnt by pouring kerosene. He and some other

villagers extinguished the fire and took her to the

hospital for treatment. He further deposes that his

wife has committed suicide because of the insult and

assault made by the accused. He is also a witness to

the oral dying declaration. He has supported the

case of prosecution.

(c) PW.3 - Doreswamy is an independent witness. He is

supposed to depose about the incident. But turned

hostile. However, in the cross-examination of the

Public Prosecutor, he admitted that on 17.06.2008,

after hearing the quarrel, he came out of the house.

Later, he accompanied PW.2 to the hospital. Partly

supported the case of the prosecution.

(d) PW.4 - Nanjundaswamy is a witness to Ex.P3 -

Seizure Mahazar under which M.O.1 was seized.

When he saw the incident, PW.2 and PW.3 were

trying to extinguish the fire. He has supported the

case of the prosecution.

(e) PW.5 - Rajendra is also a witness to Seizure

Mahazar - Ex.P3 and also Inquest Panchanama -

Ex.P4. Supported the case of the prosecution.

(f) PW.6 - Dr.C.Mahadevaiah, the Doctor who treated

the injured and had informed the jurisdictional police

about the intention of the Victim to give her

statement before the police. He is also a witness to

Ex.P5, wherein he has endorsed about the fitness of

the Victim to make her statement. Supported the

case of the prosecution.

(g) PW7. - P.Mahadevappa, Asst. Sub-Inspector of

Police of Kollegala Rural Police Station. He made

requisition to conduct Inquest Panchanama to the

Tahsildar and also made a request to the Court to

include the provision under section 306 of IPC after

the death of the Victim.

(h) PW.8 - S.Prakash, Head Constable of Kollegala Rural

Police Station. He says that he has recorded the

statement of the Victim as per Ex.P5 and registered

the case. He has supported the case of the

prosecution.

(i) PW.9 - Ramesh.M., Police Sub-Inspector, Kollegala

Rural Police Station. He has conducted the

investigation and filed chargesheet.

13. Before adverting to the facts of the case, it is

relevant to note the principles of the "dying declaration" and its

admissibility. The Hon'ble Supreme Court, in the case of SATISH

AMBANNA BANSODE vs. STATE OF MAHARASHTRA reported

in 2009 (2) Crimes 19 (SC), has held that "Indian Evidence

Act, Section 32 - Dying Declaration - If after careful scrutiny the

court is satisfied that it is true and free from any effort to induce

the deceased to make a false statement and if it is coherent and

consistent, there shall be no legal impediment to make it the

basis for conviction, even if there is no corroboration."

14. In the case of LAXMAN vs. STATE reported in

2002(6) SCC 710 held that, "It is indeed a hyper technical view

that the certification of the Doctor was to the effect that the

patient is conscious and there was no certification that the

patient was in a fit state of mind especially when the Magistrate

categorically stated in his evidence indicating the questions he

had put to the patient and from the answers elicited was

satisfied that the patient was in a fit state of mind where-after

he recorded the dying declaration."

15. In another reported Judgment, the Hon'ble Supreme

Court in the case of Anjanappa V/s State of Karnataka

reported in 2014 Cr.L.J 368(SC) has held that, Doctor's

endorsement about fitness of deceased, absence not material

when doctor who examined deceased himself states on oath that

the deceased was fit to make statement. In this case the date of

incident is on 12.06.2008 and the Victim has died on 17.06.2008

i.e., the deceased died 5 days after getting burns.

16. The evidence of PW.2, who is none other than the

husband of the deceased, discloses that the Victim has narrated

the incident and reasons for the suicide. PW.3 and PW.4, who

are the independent witnesses, had stated before the Court on

oath that the deceased had committed suicide because of the

quarrel, but they have not deposed about the accused's

presence. The Doctor- PW.6 has endorsed on Ex.P5, which is the

statement made by the Victim before PW.8, the Head Constable

of Kollegala Rural Police Station.

17. The trial Court, while appreciating the evidence on

the dying declaration, opined that the Doctor's certificate for the

fit condition of the Victim to give a statement is essential. Unless

such a certificate is there in the dying declaration, the statement

said to have been given by the Victim would not have inspired

the Court's confidence and hence, rejected Ex.P5 - dying

declaration.

18. It is to be noted here that Ex.P5 is considered a

dying declaration only after the Victim's death. Ex.P5 is the

statement made before PW.8; based upon such statement, the

case is registered in Crime No.114/2008, which does not require

the endorsement of fitness of the Victim. The trial Court while

appreciating the dying declaration, has ignored the judgment of

the Constitution Bench of the Hon'ble Supreme Court, as stated

supra. As a result, the impugned judgment is liable to be set-

aside. The Hon'ble Supreme Court held that the requirement of

the certificate of fitness by the Doctor is only hyper-technical

essentiality, if the witness who recorded the statement deposed

about the state of mind of the maker of the statement before the

Court, the certificate may not play a significant role.

19. The Trial Court should have considered the evidence

of PW.2 and other witnesses. PW.2 has stated that, his wife had

told him about the incident while shifting to the hospital. The

same has been endorsed by the independent witnesses, i.e.,

PW.3 and PW.4, the same villagers. PW.3 says that he heard the

sound of quarrel said to have taken place in front of the house

of the deceased. He came out of the house; by that time, she

was being burnt herself after pouring kerosene on herself to

commit suicide. This is one of the vital circumstances which the

Trial Court must have taken note of for consideration.

20. The Trial Court failed to consider not only the

judgment of the Hon'ble Supreme Court wherein Their Lordships

have opined that, the endorsement of the Doctor is not required

if a person who recorded the dying declaration and the Doctor

who treated the Victim both have stated on oath that the

deceased was fit to make statement, but also the other relevant

circumstances such as the independent witnesses and their

evidence.

21. Considering the prevailing circumstances, the

prosecution has proved the case beyond all reasonable doubt

that the dying declaration Ex.P5 recorded by P.W.8 and

endorsement issued by P.W.6 are genuine. In addition to that,

the evidence of other witnesses has inspired the confidence of

the Court about the incident. Though P.W.2 the husband is a

related and interested witness, his evidence cannot be rejected

in Toto. Keeping in mind the principle of the dying declaration

and its admissibility, if it inspires the confidence of the Court, the

conviction can be based upon such dying declaration. Hence, I

am of the considered opinion that the dying declaration is true

and genuine and it is not tainted nor tutored.

22. In view of the observations made above, the points

which arose for my consideration i.e., point No.1 is answered in

the negative, by holding that the trial Court has failed to

appreciate the dying declaration and other independent

witnesses. Point No.2 is answered in the affirmative, by holding

that the State - Appellant has made out ground to interfere with

the impugned judgment and order of acquittal passed by the

trial Court.

23. In view of the above, I pass the following:-

ORDER

(i) The Criminal Appeal is allowed.

(ii) The impugned judgment and order of acquittal dated

03.06.2011 in S.C.No.22/2009 passed by the Fast Track

Court, Kollegala, is hereby set-aside. The respondent /

accused is found guilty for the offences punishable under

sections 341, 354, 323, 504 and 306 of IPC.

(iii) The respondent / accused is convicted for the offence

under section 341 of IPC and is sentenced to undergo

simple imprisonment for a period of one month and to pay

fine of Rs.500/- (Rupees Five Hundred only), in default of

payment of fine, he shall undergo simple imprisonment for

a period of ten days.

(iv) Further the respondent / accused is convicted for the

offence under section 354 of IPC and is sentenced to

undergo simple imprisonment for a period of four years

and also to pay fine of Rs.5,000/- (Rupees Five Thousand

only), in default of payment of fine, he shall undergo

simple imprisonment for a period of two months.

(v) Further the respondent / accused is convicted for the

offence under section 323 of IPC and is sentenced to

undergo simple imprisonment for a period of one year and

also to pay fine of Rs.1,000/- (Rupees One Thousand

only), in default of payment of fine, he shall undergo

simple imprisonment for a period of two months.

(vi) Further the respondent / accused is convicted for the

offence under section 504 of IPC and is sentenced to

undergo simple imprisonment for a period of one year and

also to pay fine of Rs.1,000/- (Rupees One Thousand

only), in default of payment of fine, he shall undergo

simple imprisonment for a period of two months.

(vii) Further the respondent / accused is convicted for the

offence under section 306 of IPC and is sentenced to

undergo simple imprisonment for a period of seven years

(07 years) and also to pay fine of Rs.10,000/- (Rupees Ten

Thousand only), in default of payment of fine, he shall

undergo simple imprisonment for a period of two years.

(viii) All the sentences shall run concurrently.

(ix) Accused / respondent shall have the benefit of set-off

as provided under section 428 of Cr.P.C.

(x) This Court placed appreciation on record for the

service rendered by the learned Amicus Curiae

Sri.N.S.Sampangiramaiah and direct the Legal Services

Authority to pay a sum of Rs.8,000/- (Rupees Eight

Thousand only) as honorarium.

(xi) The Registry is directed to transmit the records to

the trial Court forthwith in order to secure the presence of

the accused and to comply with the order of this Court.

Sd/-

JUDGE

Bss