Basavaraj Narayan Jadav vs The State Of Karnataka
2022 Latest Caselaw 7629 Kant

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                                CRL.A No. 100371 of 2018




         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 30TH 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. 100371 OF 2018 (C)


BETWEEN:


1.   BASAVARAJ NARAYAN JADAV
     AGE: 41 YEARS,
     OCC: MAISON WORK,
     R/O: OLD HUBBALLI,
     ARAVIND NAGAR,
     BENIND BIJAPUR HOSPITAL,
     HUBBALLI.

                                           ...APPELLANT

(BY SRI. K.S.PATIL, ADV. FOR SRI.AJAY U PATIL, ADV.)


AND:


1.   THE STATE OF KARNATAKA
     REPRESENTED BY
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                              CRL.A No. 100371 of 2018


   THE STATE PUBLIC PROSECUTOR,
   HIGH COURT OF KARNATAKA,
   DHARWAD BENCH,
   THROUGH OLD HUBBALLI
   POLICE STATION, DHARWAD.

                                       ...RESPONDENT

(BY SRI.V.M.BANAKAR, ADDL SPP.)


    THIS CRIMINAL APPEAL IS FILED UNDER SECTION

374(2) OF THE CODE OF CRIMINAL PROCEDURE SEEKING

TO ALLOW THE PRESENT APPEAL BY SETTING ASIDE THE

JUDGMENT DATED 27.02.2018 PASSED BY THE COURT OF

THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,

DHARWAD SITTING AT HUBBALLI, IN SESSIONS CASE

NO.54/2016 FOR THE OFFENCES PUNISHABLE UNDER

SECTIONS 323, 324, 302, 498(A) AND 504 OF THE

INDIAN PENAL CODE.



    THIS CRIMINAL APPEAL COMING ON FOR FINAL

HEARING THIS DAY, M.G.S.KAMAL J., DELIVERED THE

FOLLOWING:
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                                        CRL.A No. 100371 of 2018


                           JUDGMENT

1. Present appeal is filed by the appellant/accused

aggrieved by the judgment and order dated 27.02.2018

passed in S.C.No.54/2016 on the file of the V Additional

District and Sessions Judge, Dharwad sitting at Hubballi

(hereinafter referred to as 'the Trial Court'), by which the

appellant/accused has been convicted for the offences

punishable under;

a) Section 498A of Indian Penal Code (for short 'IPC') sentencing him to undergo rigorous imprisonment for one year six months and to pay fine of Rs.3000/- in default of payment of fine to undergo further imprisonment of six months; and,

b) under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.5000/- in default of payment of fine to undergo further simple imprisonment for a period of ten months.

2. The case of the prosecution is that the

diseased-Ashwini and the accused-husband were married

for eight years and had three children aged 6, 5 and 4

CRL.A No. 100371 of 2018

years respectively. That the husband-accused was doing

coolie work as a mason and the deceased was a house

wife. Initially she was residing with her parents-in-law in a

joint family. The deceased was being looked after well

initially for a period of one year after the marriage and

thereafter, the accused-husband started to suspect the

fidelity of the deceased. That the accused had earlier

married, which fact was not disclosed to the deceased.

When the deceased enquired about the same, the elders

of the family had mediated and pacified. However, even

thereafter the accused continued to suspect the deceased

and subjected her to physical and mental harassment. The

deceased had visited her parents place who after learning

about the harassment meted out to her by the accused

advised and consoled her to join her husband and his

family. That in the recent past the accused had raised loan

and for the purpose of repaying the said loan, the

deceased had borrowed certain amount from the relatives.

That the mother of the deceased being aware of the same

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had asked the deceased to return to Hubballi along with

her husband and children. The mother of the deceased

had arranged a rented house at Aravind Nagar, Hubballi

where the deceased, her husband and children were

residing since eight months prior to the date of incident.

However, the accused continued his abusive and insulting

behaviour towards the deceased. That on 20.11.2015, the

accused had gone out for his work and the children had

gone to the school and the deceased was alone at home.

That about 12:30 p.m., the accused returned home and

started shouting and abusing the deceased asking as to

why she has not gone out. The deceased had asked the

accused not to abuse and shout at her. However, the

accused continued to abuse and insult the deceased with

filthy language. At that time the daughter of the landlord

had come to pacify. The deceased had asked the daughter

of the landlord to leave as it was the quarrel between the

husband and wife. Thereafter the accused assaulted the

deceased with a club on her back, due to which, the

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complainant had breathlessness and fell on to the ground

and the accused strangulated her by his hands. The

eyeballs of the deceased moved-up and the accused left

her. The deceased got up and insisted that she would go

to her parents place and lodge a police complaint to settle

the differences, to which, the accused shouted in filthy

language and being enraged, the accused brought a bottle

of kerosene from inside and poured on to the deceased

and set her ablaze. The deceased went on to hold the

accused but he ran out of the house. The neighbours after

hearing the cry of the deceased came and doused the fire

and secured the ambulance and carried her to the

hospital. The deceased narrated the aforesaid incident and

sought for necessary action. The said statement was

recorded on 21.11.2015 as per Ex.P23. Accordingly, the

concerned police registered a case in Crime No.1269/2015

on 21.11.2015 for the offences punishable under Sections

323, 324, 307, 498A and 504 of IPC. Thereafter, on

27.11.2015 at about 4:30 p.m., the deceased succumbed

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to the injuries during treatment. Accordingly the accused

was charged with the offence punishable under Section

302 of IPC.

3. After the investigation a charge sheet was filed

against the accused. The prosecution examined 20

witnesses as PWs.1 to 20 and exhibited 31 documents

marked as Exs.P1 to P31 and produced 4 articles marked

as M.Os.1 to 4. The statement of the accused was

recorded on 11.01.2018. The Trial Court on appreciation of

evidence, passed the impugned judgment and order

convicting the accused for the offences punishable and

Sections 302 and 498A of IPC and sentenced him to

undergo imprisonment for life and one year six months

rigorous imprisonment respectively. Being aggrieved by

the same, the accused is before this Court.

4. Sri.K.S.Patil, learned counsel for the

appellant/accused reiterating the grounds urged in the

memorandum of appeal submitted that;

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a) the entire case of the prosecution is based on the circumstantial evidence and dying declaration at Ex.P13 and that there is no direct evidence justifying the implication of the accused;

b) that the death is not instantaneous and had apparently occurred after few days of the incident as such the accused cannot be charged for the offence under Section 302 of IPC;

c) the dying declaration at Ex.P13 has not been certified by an expert as required under Section 45 of the Indian Evidence Act and as such the said document is inadmissible in law and cannot be relied upon;

d) that the prosecution has not produced any cogent evidence to establish the fact that the deceased was in a fit mental condition to give complaint at Ex.P23 and dying declaration at Ex.P13;

e) the entire process of recording the complaint and the dying declaration and its veracity is doubtful and the benefit of which should be given to the accused.

f) Learned counsel for the appellant/ accused has relied upon the judgment of the Hon'ble

CRL.A No. 100371 of 2018

Supreme Court in the case of Mayur Panabhai Shah v. State Of Gujarat reported in (1982)2 SCC 396 and in the case of State of H.P. vs. Jai Lal and Ors. reported in (1999) 7 SCC 280.

Hence, seeks for allowing of the appeal.

5. Sri.V.M.Banakar, learned Additional SPP

justifying the judgment and order passed by the Trial

Court submits that the prosecution has produced sufficient

cogent and acceptable evidence in the nature of PW.3-the

mother of the deceased and PW.4-the aunt of the

deceased to whom the diseased had personally disclosed

about the entire incident of commission of the offence by

the accused and the depositions of said witnesses

remained unchallenged. That the recording of the

statement/complaint at Ex.P23 and the dying declaration

at Ex.P13 are fully and completely in accordance with law

and no infirmity can be attributed to discard the same.

The motive and conduct of the accused under the facts

and circumstances of the case would further establish the

case of the prosecution beyond reasonable doubt.

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Therefore seeks dismissal of the same. Learned Additional

SPP has relied upon the judgment in the case of Ramesh

and others vs. State of Haryana reported in (2017) 1

SCC 529.

6. Heard the learned counsel for the parties and

perused the records.

7. As noted by the Trial Court PW.1 who is the

witness to the panchanama of the scene of offence and

seizure mahazar have supported the case of the

prosecution. PW.2 who is an independent witness for

inquest panchanama has also supported the case of the

prosecution. PWs.3 and 4 are the mother and aunt

respectively of the deceased who have supported the case

of the prosecution. PWs.5 to 9, 11 and 14 who are the

neighbours of the deceased though have not supported

the case of the prosecution with regard to marital discard

between the deceased and the accused have however not

disputed carrying the injured deceased to the KIMS,

Hubballi. PW.10-Taluka Executive Magistrate, PW.12-the

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duty doctor, who certified about the fitness of the

deceased while recording the statement, PW.13-the doctor

who treated and conducted the post mortem have

supported the case of the prosecution. PW.20 has spoken

about the use of kerosene for causing the fire.

8. The undisputed fact of the matter is that

deceased-Ashwini sustained 90 to 95% burn injuries on

20.11.2015 at her residence in the presence of the

accused, whereupon she was admitted to the hospital on

the same day by the neighbours. Her statement in the

nature of a complaint was recorded as per Ex.P23 and she

had affixed her signature to the same. On the very same

day, PW.12-Doctor had certified about the fitness of the

deceased to give the declaration as per Ex.P13 recorded

by PW.10-the Taluka Executive Magistrate at about 6:00

p.m. to 6:20 p.m. on 21.11.2015. Both in the complaint at

Ex.P23 and in the dying declaration at Ex.P13, the

deceased has held her husband namely the accused

responsible for the burn injuries which she had sustained.

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It is this material evidence based on which the Trial Court

has concluded and convicted the accused guilty of offences

punishable under Sections 302 and 498A of IPC, the

credibility of which the appellant is seeking to assail in the

present appeal.

9. As per the postmortem report at Ex.P19 and

deposition of PW.13-doctor who conducted post mortem

on the body of the deceased, the description of the

external injuries found are as under:

"Infected burns present in patches over face including lips and tip of nose, neck, front and back of chest, front of abdomen at places, back of abdomen, both upper limbs except palms and front of fingers, both lower limbs except palms and front of fingers, both lower limbs except both soles. Most of the burnt area shows areas of slough and puss at places. It is further mentioned about antemortem infected burns of 90%-95% of total body surface area being present on the dead body."

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10. The cause of the death of the deceased as per

the post mortem was septicemia as a result of burn

injuries.

11. Learned counsel for the appellant/accused

referring to the burn injuries referred to in the

postmortem report as above submitted that considering

the nature and extent of burn injuries, it was impossible

for the deceased to be in a fit condition to give statement

as per Ex.P23 or dying declaration as per Ex.P13. He

further submits that PW.12 was only an intern in the

hospital and was not qualified and competent to issue

certificate of fitness of the deceased. He further contended

that since none of the witnesses have supported the case

of the prosecution in its entirety and most of the witnesses

having turned hostile and in view of the nature of injuries,

placing reliance on Ex.P13-dying declaration and holding

accused guilty of the offence has resulted in grave

injustice.

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12. It is necessary to note that PW.3 is the mother

of the deceased who in her evidence apart from reiterating

her statement given during the investigation with regard

to accused suspecting the fidelity of the deceased and

subjecting her to physical and psychological torture has

categorically deposed that she received the information

from a neighbour of the deceased about the accused

pouring kerosene on the deceased and setting her ablaze

between 01:00 p.m. and 02:00 p.m. and about the

deceased having been brought to the hospital for

treatment. She further deposed that she along with her

husband CW.8 had immediately gone to the hospital and

at that the time the deceased who had suffered burn

injuries was talking. That the deceased had told her that it

was the accused who had set her ablaze and she had

further informed the accused had gone out to work at

06:00 a.m. and after returning at 11:00 a.m., had

assaulted the deceased and being enraged on deceased

protesting the assault he had set her ablaze. That the

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deceased had stated about the incident to her and to the

Police in her presence. That the deceased passed away

after about a week of the incident due to the burn injuries.

13. In the cross-examination, PW.3 has denied the

suggestion that due to burn injuries and the pain, the

deceased was not in a position to speak and that she was

not in a position to recognize the visitors. She has also

denied the suggestions that the deceased had borrowed

loans from several Women's Self Help Associations to lead

her luxurious life without the knowledge of the accused

and that the accused had objected for the same. She has

also denied the suggestion that the deceased was

receiving phone calls from the creditors demanding

repayment of the loans and that not being able to

withstand the pressure with an intention of creating fear in

the minds of the creditors, deceased had set herself

ablaze. She has also denied the suggestion that the

deceased neither informed her nor the Police about the

incident as she had severe pain of the injuries.

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14. PW.4 is the aunt of the deceased. She has

deposed about the physical and mental harassment meted

out to the deceased by the accused and also about she

visiting the hospital on receipt of the information about the

incident. She has deposed that the deceased on seeing her

started to cry and had narrated about the incident of

accused running away after setting her ablaze. In the

cross-examination, it has been suggested to the said

witness that the deceased was screaming in pain. She has

denied the suggestion that the deceased was not in a

position to recognize the visitors as she had suffered the

burn injuries. The witness has categorically deposed that

the deceased was aware of everything and was

recognizing everyone. She has stated that the deceased

had suffered burn injuries except her forehead, nose and

fingers.

15. Thus the evidence of PW.3 and PW.4 reveal that

the deceased had informed them personally about the

accused assaulting her and setting her ablaze. The

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suggestions made to the said witnesses also reveal that

the deceased was conscious as according to the defence

the deceased was screaming in pain.

16. PW.10 who was the Executive Magistrate at the

relevant point of time has deposed that upon receipt of the

requisition as per Ex.P11 he had gone to the hospital and

had given requisition to the medical officer to enquire the

injured. The requisition so given by him is marked Ex.P12.

That the medical officer had referred him to ward No.202

and had him to meet the duty doctor PW.12 who led him

to the injured. There in the presence of PW.12 who had

certified about the injured being in condition to speak.

PW.10 has further deposed that he spoke to the injured in

Kannada and upon he enquiring the injured had disclosed

her age, occupation, religion, address and also she being

admitted in hospital. That she also spoke about she having

been brought to the hospital in an ambulance. That she

held her husband responsible for the act. That she had

also given the details about the incident which happened

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on 20.11.2015. All the details recorded in the presence of

PW.12 who had affixed his signature on the declaration. In

the cross-examination, PW.10 has denied the suggestion

that the injured was screaming and shouting at that time

due to pain. He has deposed that the injured was calm. He

has also denied the suggestion that injured was not in a

position to understand the question. He has also denied

the suggestion that he recorded the statement upon the

instruction of the Police. He has specifically denied the

suggestion that due to burn injuries on the mouth and

lips, the injured was not in a position to answer. Thus,

nothing has been elicited during the cross-examination

discrediting the evidence of PW.10.

17. PW.12 is the Doctor who has certified about the

fitness of the deceased to give the declaration as per

Ex.P13 recorded by PW.10 - the Taluka Executive

Magistrate. In his deposition, the said witness has stated

that he was pursuing his post graduation in Surgery at

KIMS, Hubballi since 2014. That on the request, he had

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given a certificate about the deceased being fit enough to

give her statement which is marked as Ex.P16 and his

endorsement and signature is marked as Ex.P16(a). He

has also spoken about he being present near the deceased

as a duty doctor while recording the dying declaration at

Ex.P13 by the Tahasildar PW.10. His signature thereof has

been marked as Ex.P13(a). In the cross-examination, he

has denied the suggestion that the patients who suffer

60% to 65% of the burn injuries would not be in a position

to speak properly. He has stated that it differs from

patient to patient. He has also denied the suggestion that

a person with 90% and above burn injuries would not be

able to comprehend or answer. He also denied the

suggestion that the deceased having suffered 90% to 95%

of the burn injuries was not in a position to give any

statement.

18. The counsel for the appellant has assailed the

deposition of PW.12 and also his issuing of certificate

regarding the fitness of the deceased to give the

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statement on the premise that PW.12 was still pursuing

his post graduation and was not qualified enough to give

such a certificate. As rightly taken note of by the Trial

Court, it is not in dispute that PW.12 had completed his

graduation and was qualified enough to practice and treat

any patients. He was just pursuing his post graduation

which would not under any circumstances make him

disqualified to give such a certificate as sought to be made

out by the appellant.

19. The Apex Court in the case of Purshottam

Chopra and another v. State (Govt. of NCT Delhi)

reported in AIR 2020 SC 476 has summed up the

principles relating to recording of dying declaration and its

admissibility and reliability as under:

"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.

ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the

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statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

(Emphasis Supplied)

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20. In the instant case, the dying declaration at

Ex.P13 and the condition of the deceased to give the same

has been established by the prosecution by leading cogent

and acceptable evidence as noted hereinabove.

21. As regards the submission of the counsel for

the appellant that since the deceased had suffered 90% to

95% burn injuries, that itself was sufficient to discard the

theory of dying declaration, it is useful to refer the

judgment of the Apex Court in the case of Vijay Pal vs.

State (Government of NCT of Delhi) reported in

(2015) 4 SCC 749 wherein at paragraphs 23 and 24 has

held as under:

"23. It is contended by the learned counsel for the appellant when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat[9] wherein it has been held a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial Court should not have substituted its opinion for that of the doctor. In the light of the

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facts of the case, the dying declaration was found to be worthy of reliance.

24. In State of Madhya Pradesh v. Dal Singh and Others[10], a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible."

(Emphasis Supplied)

22. Similarly, the Apex Court in the case of

Ramesh and others vs. State of Haryana reported in

(2017) 1 SCC 529 at paragraph 36 has held as under:

"36. In view of the specific certification by the Doctor about the fitness of the deceased that she remained fit while recording the statement, the mere effect that she had suffered 100% burns would not, ipso facto, lead to the conclusion that the deceased was unconscious or that she was not in a proper state of mind to make a statement. At this stage, it would also be relevant to point out that no challenge was made by the defence to the aforesaid statement of the deceased on the ground that it was not made voluntarily or it was made by any extraneous circumstances or was the result of tutoring. In fact, even as per the appellants, it is they who had taken the deceased to the hospital and no other person known to her had come in her contact before the statement was recorded. On the contrary, PW- 3 and PW-4 (father and brother of the deceased respectively) have not supported the prosecution version, which aspect shall be dealt with later at the appropriate stage and, therefore, the question of tutoring does not arise at all."

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23. Thus from the material evidence of PWs.3 and 4

and that of PWs.10 and 12 and on perusal of Ex.P13 in the

light of the law laid down by the Apex Court as above, it

can be safely concluded that no infirmity can be attributed

to the statements of the witnesses and with regard to the

credibility and the veracity of the dying declaration relied

upon by the prosecution and the Trial Court in proving and

holding the accused guilty of committing the offence.

24. Learned counsel for the appellant/accused

relied upon the judgment of the Apex Court in the case of

Mayur Panabhai Shah supra wherein the Apex Court

was dealing with the case involving conviction of offence

under Section 376 of IPC, in which appeal filed against the

conviction was dismissed summarily by the High Court, on

the premise that "Courts have always taken doctors as

witnesses of truth". The Apex Court while remanding the

said matter for disposal on merits had observed that even

where a doctor has deposed in Court, his evidence got to

be appreciated like the evidence of any other witness and

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there is no irrebuttable presumption that a doctor is

always a witness of truths. The learned counsel for the

appellant has also relied upon the judgment in the case of

State of H.P. vs. Jai Lal supra, a case dealing with

offences under Sections 120B, 420 of IPC read with

Section 5(2) of the Prevention of Corruption Act, 1947,

wherein an issue involving the assessment of productivity

of apple orchard was involved. The Apex Court has

observed that an expert is not a witness of fact and his

evidence is only an advisory in character and his duty is to

furnish the Judge with necessary scientific criteria for

testing the accuracy of the conclusion enabling the Judge

to form his independent judgment. The facts and

circumstances and the context of the aforesaid cases dealt

with by the Apex Court are distinct and separate from that

or the one involved in the present case. Reliance on the

aforesaid judgments by the counsel for the appellant is

hardly of any avail under the facts and circumstances of

the case.

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25. It is relevant to note at this juncture, the

conduct of the accused soon after the incident. The

incident has occurred on 20.11.2015 at the house where

the deceased was residing with her husband. The presence

of the accused has not been disputed. The defence of the

accused is that the deceased had borrowed several hand

loans to lead her luxurious life and not been able to

withstand the pressure of the creditors, had taken this

step of setting herself ablaze. If that be so, no material

evidence has been brought on record by the accused

regarding the said defence. More particularly, in view of

the fact that the incident had taken place at the residence

and in the presence of the accused he was bound to

explain the circumstances as required under Section 106

of the Evidence Act. Further, the accused was arrested on

18.12.2015 i.e., after about 28 days after the date of

incident which fact has not been disputed. The factum of

accused absconding from the scene and not taking any

steps in the treatment of the deceased who survived for

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about 8 days after the incident would indicate the guilty

conduct of the accused which is a relevant factor to be

considered in the overall facts and circumstances of the

matter. No justification has been offered by the accused in

this regard even while recording statement under Section

313 of the Cr.P.C.

26. For the foregoing reasons and analysis, we are

of the considered view that the prosecution has proved the

guilt of the accused beyond reasonable doubts. The appeal

is devoid of merits. Hence, the following:

ORDER

Appeal is dismissed.

The impugned judgment of the Trial Court is

confirmed.

SD/-

JUDGE

SD/-

JUDGE KGK/Rsh