Karnataka High Court
Shri.Balappa Bharmappa Hukkeri vs The State on 26 May, 2022
Bench: K.S.Mudagal, M.G.S. Kamal
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CRL.A No. 100175 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100175 OF 2019 (C-)
BETWEEN:
1. SHRI.BALAPPA BHARMAPPA HUKKERI
AGE 42 YEARS, OCC AGRICLTURE,
R/O KADABI, TQ SAUNDATTI,
DIST BELAGAVI.
...APPELLANT
(BY SRI. M. B. GUNDAWADE, ADV.)
AND:
1. THE STATE
BY THE POLICE SUB INSPECTOR,
MURGOD POLICE STATION,
TQ. SAUNDATTI, DIST. BELAGAVI,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARANTAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO CALL FOR RECORDS FROM V
ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI,
PERTAINING TO S.C. NO.209/2017 AND TO PASS A
JUDGMENT OF ACQUITTAL BY SETTING ASIDE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED
23.01.2019 PASSED AGAINST THE APPELLANT/ACCUSED IN
S.C. NO.209/2017, BY THE V ADDL. DISTRICT AND SESSIONS
JUDGE, BELAGAVI FOR THE ALLEGED OFFENCE UNDER
SECTION 302 OF IPC.
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CRL.A No. 100175 of 2019
THIS CRIMINAL APPEAL COMING FOR HEARING, THIS
DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Present criminal appeal is filed by the appellant/accused
questioning the judgment and order dated 23.01.2019 passed
in Sessions Case No.209/2017 on the file of V Additional
District and Sessions Judge, Belagavi (hereinafter referred to
as "Trial Court" for short) in and by which the
appellant/accused has been convicted and sentenced to
undergo imprisonment for life for the offence punishable under
Section 302 of the Indian Penal Code, 1860 (hereinafter
referred to as "IPC" for short) and to pay a fine of Rs.20,000/-
and in default of payment of fine to undergo simple
imprisonment for four months.
2. The case of the prosecution is that the
appellant/accused being husband of deceased Prema @
Gangawwa had subjected her for physical and mental cruelty
since a year and a half inasmuch as the deceased had
instructed the workers of their agricultural land and other
persons not to give money to the accused as he was in the
CRL.A No. 100175 of 2019
habit of consuming alcohol and wasting money and property
and that in furtherance thereof on 19.04.2016 at about 20:30
hours with an intention to kill had assaulted her on her cheek
on the premise of she not giving him betel leaves and
thereafter poured kerosene oil all over her body and set her
ablaze. The said Prema who suffered burn injuries was
admitted in Belagavi District Hospital, however, on 28.04.2016
at 03:00 a.m. she succumbed to the burn injuries during the
treatment. Thus the accused was charged for the offence of
murdering his said wife Prema, and a charge sheet was filed
by Murgod Police against the accused for the offences
punishable under Sections 498A and 302 of IPC.
3. Prosecution to prove the guilt of the accused,
examined 26 witnesses as PWs.1 to 26 and exhibited 50
documents at Exs.P1 to P50 and four material objects.
Accused denied the charges in its entirety, however, did not
lead any evidence in support of his defence. The Trial Court
on appreciation of material evidence, acquitted the accused of
the offence punishable under Section 498A of IPC, however,
CRL.A No. 100175 of 2019
found him guilty of the offence punishable under Section 302
of IPC. Being aggrieved by the same, the appellant/accused is
before this Court.
4. Sri.M.B.Gundawade, learned counsel for the
appellant/accused reiterating the grounds urged in the
memorandum of appeal submitted that;
a) There are no eyewitnesses to the incident. That
the entire prosecution case is based on the evidence of the
official witnesses while all the independent witnesses have
turned hostile.
b) That the parents of the deceased Prema namely
PWs.5 and 9 apart from turning hostile have categorically
deposed that the deceased Prema was suffering from
stomach pain and despite the treatment, she was not cured of
the pain. Besides, the deceased was depressed for not
begetting children which is the cause for her taking this
extreme step to put an end to her life by pouring kerosene and
setting herself ablaze.
CRL.A No. 100175 of 2019
c) That the Trial Court has heavily relied upon the
alleged dying declaration (Ex.P49) purportedly recorded by
PW.26 - the Taluka Executive Magistrate, Belagavi without
taking into consideration of the fact that the alleged dying
declaration is inadmissible as the same does not satisfy the
requirement of law with regard to fitness of the deceased to
give such a declaration.
d) That the Trial Court failed to appreciate that the
alleged dying declaration (Ex.P49) has come into existence
much prior to the complaint (Ex.P7), based on which the
respondent/Police had registered the FIR in Crime
No.115/2016 (Ex.P47).
e) That except the defective dying declaration, there
is no other cogent and acceptable material evidence produced
by the prosecution justifying the conviction. Learned counsel
relied upon the judgment of the Apex Court in the case of
Muralidhar @ Gidda and another vs. State of Karnataka
reported in (2014) 5 SCC 730 regarding credibility of the dying
CRL.A No. 100175 of 2019
declaration. Hence, sought for setting aside of the impugned
judgment and order by allowing the appeal.
5. Per contra, Sri.V.M.Banakar, learned Additional
State Public Prosecutor supporting the impugned judgment
and order of conviction submitted that even though
independent witnesses have turned hostile, the Trial Court is
absolutely justified in coming to the conclusion with regard to
the guilt of the accused based on the dying declaration at
Ex.P49 which has been recorded strictly in accordance with
law and no infirmity of any nature whatsoever can be found in
that regard. He insists that there are no grounds made out by
the appellant/accused to discard the dying declaration which
alone is sufficient to sustain the conviction. He relied upon the
judgment of the Apex Court in the case of Laxman vs. State
of Maharashtra reported in AIR 2002 SC 2973 in support of
his submissions. Hence, he seeks for dismissal of the appeal
by confirming the impugned judgment and order.
CRL.A No. 100175 of 2019
6. Heard the learned counsel for the parties and
perused the records. The point that arise for consideration is,
"whether the Trial Court is justified in solely relying upon the
dying declaration at Ex.P49 in arriving at its conclusion
regarding the guilt of the accused and sentencing him for life
imprisonment for the offence punishable under Section 302 of
IPC?"
7. It is not in dispute that PWs.1 to 14 and PW.23,
who are the relatives of the victim, inquest panchanama
witnesses, spot panchanama witnesses and persons who are
acquainted with the accused and the deceased Prema have
completely turned hostile and have not supported the case of
the prosecution in any manner whatsoever even as taken note
of by the Trial Court at para 76 of the judgment. The
prosecution has relied upon the evidence of its official
witnesses who have been examined as PWs.15 to 22 and
PWs.24 to 26 which fact has also been taken note of by the
Trial Court at paragraph 77 of the judgment. Therefore, the
case of the prosecution entirely is depending upon the
CRL.A No. 100175 of 2019
credibility and veracity or otherwise of the dying declaration at
Ex.P49.
8. Apex Court in the case of Laxman supra at
paragraph 3 of the judgment has held as under:
"3. The juristic theory regarding
acceptability of a dying declaration is that such
declaration is made in extremity, when the party is
at the point of death and when every hope of this
world is gone, when every motive to falsehood is
silenced, and the man is induced by the most
powerful consideration to speak only the truth.
Notwithstanding the same, great caution must be
exercised in considering the weight to be given to this
species of evidence on account of the existence of
many circumstances which may affect their truth. The
situation in which a man is on death bed is so
solemn and serene, is the reason in law to accept
the veracity of his statement. It is for this reason
the requirements of oath and cross-examination
are dispensed with. Since the accused has no
power of cross-examination, the court insist that
the dying declaration should be of such a nature
as to inspire full confidence of the court in its
truthfulness and correctness. The court, however
CRL.A No. 100175 of 2019
has to always be on guard to see that the
statement of the deceased was not as a result of
either tutoring or prompting or a product of
imagination. The court also must further decide that
the deceased was in a fit state of mind and had the
opportunity to observe and identify the assailant.
Normally, therefore, the court in order to satisfy
whether the deceased was in a fit mental condition to
make the dying declaration look up to the medical
opinion. But where the eyewitnesses state that the
deceased was in a fit and conscious state to make
the declaration, the medical opinion will not prevail,
nor can it be said that since there is no certification
of the doctor as to the fitness of the mind of the
declarant, the dying declaration is not acceptable.
A dying declaration can be oral or in writing and in
any adequate method of communication whether
by words or by signs or otherwise will suffice
provided the indication is positive and definite. In
most cases, however, such statements are made
orally before death ensues and is reduced to
writing by someone like a magistrate or a doctor or
a police officer. When it is recorded, no oath is
necessary nor is the presence of a magistrate is
absolutely necessary, although to assure
authenticity it is usual to call a magistrate, if
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CRL.A No. 100175 of 2019
available for recording the statement of a man
about to die. There is no requirement of law that a
dying declaration must necessarily be made to a
magistrate and when such statement is recorded
by a magistrate there is no specified statutory form
for such recording. Consequently, what evidential
value or weight has to be attached to such statement
necessarily depends on the facts and circumstances of
each particular case. What is essentially required is
that the person who records a dying declaration must
be satisfied that the deceased was in a fit state of
mind. Where it is proved by the testimony of the
magistrate that the declarant was fit to make the
statement even without examination by the doctor
the declaration can be acted upon provided the
court ultimately holds the same to be voluntary and
truthful. A certification by the doctor is essentially a
rule of caution and therefore the voluntary and
truthful nature of the declaration can be
established otherwise."
(Emphasis supplied)
9. In the instant case, it is to be seen if the dying
declaration Ex.P49 relied upon by the prosecution would
satisfy the legal requirement as enunciated hereinabove by
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CRL.A No. 100175 of 2019
the Apex Court. PW.16 (C.W.17) namely Yallappa Katakol,
Head Constable, has deposed that on 20.04.2016 while he
was on duty in the said Police Station, PW.19 (CW.23)
Nagappa Madiwalar, Assistant Sub-Inspector, had taken him
to Belagavi BIMS Hospital as he had received MLC regarding
admission of deceased Prema Balappa Hukkeri in the said
Hospital. That on the way to the hospital, PW.19 (CW.23) had
given a requisition to the PW.26 - Tahasildar, Belagavi to
record the dying declaration of the said Prema and thereafter
they went to the hospital. He has further deposed that as per
the instructions of PW.19 (CW.23), he had issued a letter to
CW.24 Dr.Suraj B. to ascertain if the injured Prema was in a
position to give her statement or not. That CW.24 Dr.Suraj B.
had given a certificate to the effect that the injured was in a
position to give her statement and he had even endorsed and
affixed his signature on the said requisition. It is thereafter
PW.16 and PW.19 (CW.23) went near Prema and found that
she had sustained burn injuries all over body. Doctor was also
present at that relevant point of time. He has further deposed
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CRL.A No. 100175 of 2019
that as per the orders of PW.19 (CW.23), he had
recorded/written the statement of Prema which has already
been marked as Ex.P7 with his signature thereon as Ex.P7(a).
He has also spoken about obtaining the impression of great
toe of deceased's right foot as both her hands were severely
burnt. That CWs.23 and 24 had thereafter affixed their
signature to the said Ex.P7. He has reiterated the contents of
Ex.P7 with regard to the alleged mental, physical, torture and
harassment meted out by the accused on her and in
furtherance thereof the accused allegedly pouring kerosene oil
on her and setting her ablaze with an intention to kill her.
10. In the cross-examination, PW.16 has stated that
they went to the Tahasildar's office at about 04:00 p.m. and
thereafter reached the hospital at 04:30 p.m. and soon
thereafter he had submitted a requisition to the Chief Medical
Officer to know if the injured was in a position to give her
statement or not. That the Chief Medical Officer had asked
him to get the certificate from the duty Doctor. However, he
does not know the name of the duty Doctor. He has also
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CRL.A No. 100175 of 2019
deposed that none of the relatives of Prema were present
while recording her statement.
11. CW.23 namely Nagappa Madiwalar who was ASI
at the relevant time examined as PW.19 has deposed identical
to that of the deposition of PW.16 as noted above. He has
specifically referred to the requisition letter dated 20.04.2016
(Ex.P37) given to the Tahasildar before going to the hospital
requesting to record the dying declaration of the injured. He
has confirmed that the statement at Ex.P7 was written by
PW.16 at his instruction based on which he registered the
case in Crime No.115/2016.
12. CW.26 namely Maruti Marihal, ASI, Murgod Police
Station examined as PW.22 has deposed with regard to
PW.16 obtaining the complaint from injured Prema and
registering the case in Crime No.115/2016. In the cross-
examination, he has stated that he was not present at the time
of obtaining the statement of the deceased in the hospital. He
has expressed his inability to state the name of Doctor who
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CRL.A No. 100175 of 2019
had declared that the Prema was in a position to give her
statement.
13. CW.27 namely Balappa Mantur, CPI of Banahatti
examined as PW.24 has spoken about he receiving the case
file from PW.22 on 29.04.2016 for further investigation. In the
cross-examination, the said witness has deposed that he has
no personal knowledge of Doctor who was present at the time
of recording dying declaration of the victim.
14. CW.16 namely Preetam Nasalapure, working as
Tahasildar of Belagavi at the relevant time examined as
PW.26 has deposed that on 20.04.2016 the ASI, Murgod had
sent him the requisition letter to record dying declaration of
Prema who was admitted in the District Hospital, Belagavi. He
has further spoken about he visiting the District Hospital on
the same day and obtaining certificate from CW.24 Dr.Suraj
B., the duty doctor, apparently certifying the fitness of the
victim and also with regard to recording of dying declaration of
the victim between 05:00 p.m. to 05:30 p.m. which is identified
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CRL.A No. 100175 of 2019
and marked as Ex.P49. The fitness certificate is marked as
Ex.P49(d). The requisition letter is marked as Ex.P15. In the
cross-examination, he admits that the condition of Prema
Balappa Hukkeri was serious, and that he does not remember
the name of the doctor from whom he obtained the fitness
certificate. He admits that except the signature, neither the
name nor the seal of the doctor is found on Ex.P49(b).
15. Thus from the aforesaid deposition of PW.16,
PW.19, PW.22 and PW.26, it is clear that none of them were
able to remember or state the name of the doctor who had
purportedly certified the fitness of deceased Prema. Though
the prosecution has referred to CW.24 being a certain
Dr.Suraj B., who alleged to have issued the fitness certificate,
has not been examined. It is necessary at this juncture to note
as recorded by the Trial Court in its judgment at para 84, the
Court had issued summons to CW.24 which was returned
unserved. Thereafter, non-bailable warrant had been issued to
secure his presence through Superintendent of Police which
returned with shara "whereabouts of CW.24 is not known".
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The request for re-issuance of non-bailable warrant was
rejected by the Trial Court as the same on earlier occasion
was returned with the shara as above. This aspect of the
matter appears strange and further compels to scrutinize the
contents of Ex.P7, Ex.P49 and Ex.P38, which according to
prosecution were issued/recorded the presence of CW.24.
16. A close perusal of Ex.P7 (compliant) reveals that
the same has been recorded at 06:00 p.m. of 20.04.2016. As
per the deposition of PW.16 (CW.17), he recorded the said
statement at the instruction of PW.19 (CW.23) Nagappa
Madiwalar. The handwriting and signature of PW.16 (CW.7)
has been marked and identified as Ex.P7(a). The said witness
has deposed that both PW.19 (CW.23) and CW.24 have put
their signatures in the said statement. The purported signature
of CW.24 has not been identified. At the end of the said
statement, the following endorsement is seen:
"Patient has given statement before me.
Sd/-
(for surgery c)"
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CRL.A No. 100175 of 2019
17. On the other hand, Ex.P49 - the dying declaration,
is purportedly recorded between 05:05 p.m. and 05:30 p.m. of
20.04.2016. The endorsement found on Ex.P49 with regard to
the alleged fitness certificate reads as under:
"20/04/16
5.00 p.m. C/S/B surgery 'B' Pt Name:
Prema B. Hukkeri, aged about 35
yrs / Female, C IP No.46581,
Alleged h/o burns on 19/4/16 at
8.30 pm, @ Kadabi, Saundatti at
home. Pt conscious oriented to
time place person. General
condition poor. Pt is not on
sedation. Pt can deposit
statement on her own.
Sd/-
(For Surgery 'B')"
18. Thus it is seen from the above that the dying
declaration Ex.P49 has come into existence much prior to the
complaint at Ex.P7 based on which the case was registered in
Crime No.115/2016. There is no name, signature or seal of
the Doctor found either on Ex.P49 or on Ex.P7. The purported
signatures are of some unknown persons which appears
(though no legible) on Ex.P49 as "for surgery 'b'" and on
Ex.P7 as "for surgery c". It is not clear if it is the signature of
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CRL.A No. 100175 of 2019
CW.24 Dr.Suraj B., who was the purported duty doctor as
claimed by PW.16, PW.19 and PW.26. As noted above, the
prosecution has not chosen to examine the said doctor to
bring clarity on this aspect of the matter.
19. Another aspect of the matter is the requisition letter
at Ex.P38 which is apparently issued by PW.19 (CW.23) to the
CMO, District Hospital, Belagavi regarding the condition of the
deceased. The said letter has been received at 04:30 p.m. on
20.04.2016 with an endorsement as under:
"Pt. is fit to give statement.
Sd/-
(For surgery 'B')"
20. The endorsement made on the backside of Ex.P38
reads as under:
"Pt. Name: Prema B. Hukkeri
36 yrs/F.
IP No.46581
c Alleged h/o burns while using kerosene at
8.30 p.m. on 19/4/16
Referred from TH Yaragatti.
Pt. is fit to give statement
Sd/- Sd/-
(For surgery 'B') (For surgery 'c')
6:00 p.m."
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CRL.A No. 100175 of 2019
21. The timing of the endorsement regarding the
fitness certificate found on the backside of Ex.P38 is "6:00
p.m.", while the purported dying declaration has been
recorded between 05:05 p.m. and 05:30 p.m. Even here as
this endorsement, the name, signature and seal of the person
giving the fitness certificate is not clear.
22. Thus there are inherent infirmities and lacunas in
the recording of purported dying declaration Ex.P49 and the
fitness certificate found at Ex.P49(a) and the endorsement
regarding fitness of the deceased found on the backside of
Ex.P38.
23. The complexity of the matter has stood multiplied
by reading the aforesaid endorsement on Ex.P38 which reads:
"Alleged h/o burns while using kerosene at
8.30 p.m. on 19/4/16."
24. There is no mention with regard to overt act of the
accused while noting the aforesaid history of deceased Prema
at the first instance though the same is recorded after almost
21 hours of the incident. The prosecution has also not
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produced the medical case sheet/treatment sheet of the
deceased Prema. These aspects of the matter have raised
serious doubts with regard to credibility and acceptability of
the document dying declaration at Ex.P49, and the very
initiation of proceeding against the accused.
25. Applied the aforesaid principle of law enunciated
by the Apex Court with regard to requirement of person
recording the dying declaration to be satisfied that the
deceased was in a fit state of mind, the material evidence
produced by the prosecution in the instant case falls shy of the
said requirement. Dr.Suraj B - CW.24, who allegedly certified
regarding fitness of the deceased as per the version of
witnesses namely PW.16 and PW.19 (who recorded Ex.P7)
and PW.26 (who recorded Ex.P49), has remained
conspicuously absent in the instant case. It is the case of the
prosecution that the aforesaid witnesses were satisfied
regarding the fitness of the deceased to give the declaration
based on the certification of the said CW.24. Since the
existence of said CW.24 itself is under cloud, the testimony of
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the witnesses with regard to the condition of the deceased to
give a statement does not inspire the confidence.
26. Further, as held by the Apex Court in the case of
Muralidhar @ Gidda supra "if dying declaration recorded not
directly from the actual words of maker, but as dictated by
somebody else, this by itself creates a lot of suspicion about
the credibility of such statement and prosecution has to clear
the same to the satisfaction of the Court". In the instant case,
as discussed hereinabove, there are multiple reasons to doubt
and suspect the credibility of the dying declaration at Ex.P49.
As such, based on the said document alone, the prosecution
cannot be held to have proved the guilt of the
appellant/accused beyond reasonable doubt.
27. As noted earlier, the parents of the deceased
Prema have categorically deposed that on account of her
ailment and being depressed of not begetting children, she
had taken extreme step of putting an end to her life by dousing
kerosene on her body and setting herself ablaze. This theory
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under the circumstances cannot be ruled out. There is another
angle for this aspect of the matter. As per the inquest and the
postmortem report, there were superficial to deep burn injuries
present over the face, neck, both shoulders and upper limbs,
including palm, upper 2/3rd of chest and upper 1/3rd of
abdomen both sides of thigh and posterior aspect of upper
1/3rd of leg. PW.15 who has deposed with regard to the
postmortem report, in the cross-examination has stated that "it
is true to suggest that if a person is in a sitting position is burnt
the external appearance of injuries may happen. It is true to
suggest that the hair of the victim is intact." This further
creates doubt about the story of prosecution of the accused
pouring the kerosene oil all over the body of the deceased and
setting her ablaze.
28. For the aforesaid reasons and analysis of the oral
and documentary evidence, we are of the considered view
that the prosecution has failed to prove the guilt of the
accused beyond reasonable doubt giving rise to suspicion and
doubt with regard to the theory of dying declaration Ex.P49
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based on which the Trial Court handed over the sentence of
life imprisonment to the accused. The judgment and order of
sentence passed by the Trial Court without taking into
consideration of the aforesaid aspects of the matter, is
unsustainable. The point raised above is answered
accordingly. As a result, the following order:
ORDER
The appeal is allowed.
The impugned judgment and order of conviction and
sentence for the offence punishable under Section 302 IPC is
hereby set aside. The appellant is acquitted of the charge for
the offence punishable under Section 302 IPC.
The accused shall be set at liberty forthwith, if his
detention is not required in any other case.
The order with regard to disposal of the property is
maintained.
IA-2/2021 stood disposed off.
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Registry shall communicate this order forthwith to the
trial Court and the concerned Jail Authorities.
SD/-
JUDGE
SD/-
JUDGE
Rsh
