Karnataka High Court

Lokesh C vs The State Of Karnataka By on 20 December, 2023

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                                                              CRL.A No. 1479 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 20TH DAY OF DECEMBER, 2023

                                                 PRESENT
                       THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                      AND
                             THE HON'BLE MR JUSTICE VENKATESH NAIK T


                                 CRIMINAL APPEAL NO. 1479 OF 2017


                      Between:

                      Lokesh C,
                      S/o. Chowdappa,
                      Aged about 28 years,
                      Occ: Labourer,
                      R/o. Belikallu Nayakarahatty,
                      Behind J.M.I.T. College,
                      Chitradurga Town-577501.
                                                                           ...Appellant
                      (By Sri Nithin Ramesh, Advocate)

Digitally signed by   And:
VEERENDRA
KUMAR K M
                      The State of Karnataka
Location: HIGH
COURT OF              By Kote Police Station,
KARNATAKA             Chitradurga-577501
                      (Represented by Public Prosecutor,
                      High Court Buildings, Bengaluru-560001.
                                                                         ...Respondent
                      (By Sri Vinay Mahadevaiah, HCGP)

                            This Criminal Appeal is filed under Section 374(2) Cr.P.C.,
                      praying to set aside the judgment and order of conviction and
                      sentence dated 06/07.07.2017 passed by the Principal District
                      and Sessions Judge, Chitradurga in S.C.No.107/2014 -
                      convicting the appellant/accused No.1 for the offence p/u/s
                      498A and 302 of IPC.
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                                       CRL.A No. 1479 of 2017




     This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:

                         JUDGMENT

This appeal is by accused No.1 in

S.C.No.107/2014 on the file of the Prl. District and

Sessions Judge, Chitradurga. Four accused

persons faced trial for the offences punishable

under Sections 498A, 302, 114 read with Section

34 of IPC. The Sessions Court acquitted accused 2

to 4 of the said offences and convicted accused

No.1. He was sentenced to imprisonment for life

and fine of Rs.10,000/- with default imprisonment

for a period of 3 months for the offence under

Section 302 of IPC; simple imprisonment for 2

years with fine of Rs.3,000/- and default

imprisonment for a period of 3 months for the

offence under Section 498A of IPC.

2. The prosecution case is about causing

death of a woman by name Anitha, the wife of

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accused No.1. The marriage of the deceased

Anitha and the first accused was solemnized in the

office of Marriage Registration Officer about 2

years before 06.05.2014. They were living in a

rented house belonging to PW12 Papanna situated

at Belikallu Nayakarahatti, Chitradurga Town. The

allegation is that accused No.1 used to torture the

deceased physically and mentally compelling her to

bring money from her parents' house. On

06.05.2014, around 10.00pm, the first accused

poured kerosene and set fire to his wife with an

intention to kill her. She sustained severe injuries

and breathed last around 4.00pm on 23.07.2014 at

Chitradurga District Hospital.

3. The prosecution examined 19 witnesses

and produced 37 documents as per Ex.P1 to P37

and 1 material object, a plastic mug used for

pouring kerosene.

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4. The trial court rested its conclusions on

two dying declarations marked Exs.P17 and P27,

and the oral testimonies of PW13 and PW16 to

PW19. The findings recorded by the trial court are

that the physical and mental fitness of the

deceased to give statements about the cause of

her death has been proved by two doctors who

examined her before the dying declarations were

recorded. There are no reasons to discard the

dying declarations which clearly point to the first

accused to be responsible for deceased catching

fire and succumbing to the burn injuries. Though

the incident took place on 06.05.2014, the FIR was

registered on 02.07.2014. The delay was due to

lapse on the part of the investigating officer and

the negligence of the doctors. There is sufficient

evidence indicating involvement of accused No.1 in

commission of offence. Minor contradictions can

be ignored. Though many witnesses turned

hostile, there is no bar for recording conviction

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based on the dying declarations which are proved

in accordance with law.

5. We have heard Sri Nithin Ramesh,

learned counsel for the appellant/accused No.1 and

Sri Vinay Mahadevaiah, learned High Court

Government Pleader for the respondent/State.

6. Sri Nithin Ramesh while arguing

submitted that the trial court ought not to have

placed reliance on two dying declarations which

apparently appear to be untrustworthy. The

deceased caught fire around 10.00pm on

06.05.2014. Immediately she was taken to

District Hospital, Chitradurga by accused No.1

himself. It is surprising that MLC report was not

forwarded to the police station. The deceased was

discharged after a few days and again re-admitted

to the hospital on 26.06.2014. There is no

evidence about information being given to police

on 26.06.2014 though there was an entry in the

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MLC register with regard to re-admission of the

deceased to the hospital on that day. The first

dying declaration was recorded by a police officer

as per Ex.P17 at 1.00am on 02.07.2014 and based

on this FIR was registered for the offences

punishable under Sections 498A and 307 read with

Section 34 of IPC. On 02.07.2014, in between

10.15 and 11.00am, the Taluka Executive

Magistrate recorded another dying declaration as

per Ex.P27. It has come in evidence that the Sub-

Inspector himself did not record the statement but

it was written by another police official who was

not cited as a witness. Ex.P27 was recorded in the

question and answer form which if thoroughly

scrutinized shows that it is inconsistent with the

first dying declaration. The scribe of Ex.P27 was

also not examined. Inspite of certification by the

doctors that the injured was fit enough to give

statement, the reason why no attempt was made

to record the statement of the deceased very soon

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after her admission to the hospital on 06.05.2014

gives room for suspecting the veracity of the

contents of both Ex.P17 and Ex.P27. He refers to

the evidence of PW16, the Taluka Executive

Magistrate who recorded Ex.P27 to argue that he

had seen the FIR before recording the dying

declaration and therefore he might have filled up

the form on going through the FIR. Moreover PW1

to PW12, including the parents of the deceased

have not supported the prosecution case. In a

case of this type, usually the parents of the

deceased support and if they also turned hostile, it

can be said that the contents of two dying

declarations may not be correct. According to the

doctor who treated her, she had suffered more

than 70% burn injuries and she was put on

sedatives. It is highly doubtful whether she was

able to speak. It has come on record that the

deceased caught fire accidentally while cooking

food. This incident appears to have been coloured

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to falsely implicate accused No.1. With a lot of

infirmities in the evidence, the trial court should

not have convicted accused No.1 and hence appeal

deserves to be allowed, thus argued Nithin

Ramesh.

7. Sri Vinay Mahadevaiah, learned HCGP

replied that two dying declarations cannot be

discarded at all. The doctors examined the

deceased and certified that she was in a fit

condition to make statements. For the reason of

non examination of the scribes of the dying

declarations, inference cannot be drawn that the

PSI and the Taluka Executive Magistrate did not

record them in the presence of the doctors. The

signatures of the officers are found on the dying

declarations. The doctors also signed the dying

declarations indicating their presence at the time

of recording dying declarations. For these

reasons, Exs.P17 and P27 are trustworthy.

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Because the deceased had suffered serious

injuries, probably she was not in a position to give

statements when she was first admitted to the

hospital. Mere delay in registration of FIR in a

circumstance like this does not take away the case

of prosecution. Prominent witnesses may have

turned hostile, but it cannot be a reason for

upsetting the judgment of the Sessions Court. It

is a well established principle that conviction can

be based solely on dying declaration. Hence his

argument is that appeal deserves to be dismissed.

8. The arguments give rise to the following

point for discussion.

Whether the Sessions Court is justified in placing reliance on two dying declarations, Exs.P17 and P27 for recording conviction against first accused?

9. If the evidence as regards the dying

declaration is trustworthy, conviction can be

recorded. This is the established principle. The

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dying declaration of the person must be voluntary

and he or she must appear to be in a fit condition

to give the statement. In this case the incident

occurred on 06.05.2014 at 10.00 p.m. The

deceased herself stated in Ex.P17, the first dying

declaration that her husband i.e., the first accused

brought her to District Hospital, Chitradurga for

treatment. If Ex.P16 is perused, it becomes very

clear that the deceased was admitted to the

hospital on 06.05.2014 itself. She was discharged

later on and was again re-admitted on 26.06.2014.

Ex.P16 is a letter addressed by the police officer to

the doctor at Chitradurga District Hospital

requesting him to certify whether Anitha, the

deceased, was fit enough to give a statement. The

doctor certified on Ex.P16 itself that she was in a

condition to give statement. Ex.P17 is the dying

declaration recorded at 1.00 a.m. on 02.07.2014 in

the presence of Sub-Inspector of Police, Kote

Police Station, Chitradurga. In Ex.P17 also it is

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stated that at about 10.00 p.m. on 06.05.2014,

accused No.1 on the instigation of other accused

brought kerosene in a plastic mug (MO1), and

after pouring it on her, set fire to her. PW13

Dr.Onkara Murthy has given evidence that the

deceased was admitted to hospital on 26.06.2014

and on 02.07.2014 police inspector came to

hospital along with requisition addressed by PSI.

He received the requisition, went to burns ward,

interacted with Anitha and found that she was in a

fit condition to give statement. He then permitted

the police officer to record the statement. Ex.P17

is the dying declaration based on which FIR was

registered for the offences punishable under

Sections 498A and 307 of IPC. She stated that the

toe impression of Anitha was taken on the dying

declaration because her both the palms had been

burnt. PW18 was the Sub-Inspector of Police and

his evidence discloses that he received information

on 02.07.2014 about Anitha being admitted to the

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District Hospital having sustained burn injuries.

He went to hospital and met PW13 to enquire

whether he could record the dying declaration.

Since the doctor certified the fitness, he obtained

statement of Anitha as per Ex.P17 and then

registered FIR.

10. On the same day i.e., 02.07.2014, at

about 10.15 a.m., PW16, the Taluka Executive

Magistrate recorded another dying declaration of

Anitha as per Ex.P27. PW16 has stated that after

certification by PW17, Dr. Dinesh that Anitha was

in a fit condition to speak and give statement, he

obtained the statement of Anitha in a format.

PW17 has also stated that PW16 met and

requested him to certify the fitness of Anitha to

give statement. After his certification PW16

obtained the statement in his presence. He also

stated that the right toe impression of Anitha was

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taken on Ex.P27 as her fingers of both the palms

were burnt.

11. PW14 was the doctor who treated Anitha.

His evidence discloses that Anitha was first

admitted to hospital on 06.05.2014. He advised

the deceased and her attendants that she must be

shifted to a higher hospital for treatment. But she

was not taken to higher hospital and in the district

hospital itself she was treated from 06.05.2014 to

15.06.2014 and she was again re-admitted to the

hospital with the same history on 26.06.2014.

Anitha died on 23.07.2014. PW15 was the doctor

who conducted the post-mortem examination.

Ex.P22 is the post-mortem report in which it is

stated that death was due to septicemia probably

with pulmonary embolism (septic emboli).

12. If the oral testimonies of the above

witnesses is put to analysis, it can be said that the

two dying declarations are not free from doubtful

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circumstances. It is not in dispute that the

incident took place at 10.00pm on 06.05.2014. In

Ex.P17 it is clearly written that accused No.1 and

accused No.3 Jayamma brought Anitha to hospital.

That means, very soon after Anitha catching fire,

she was shifted to hospital. In Ex.P16, a

requisition letter by the Sub Inspector of Police to

the doctor at district hospital, it is clearly

mentioned that Anitha was admitted to hospital on

06.05.2014, she was discharged a few days later

and again re-admitted on 26.06.2014. PW14 has

also stated that 06.05.2014 was the first date of

admission. In Ex.P20 also there is a reference to

the date of admission as 06.05.2014. Therefore a

clear inference can be drawn that Anitha was

brought to hospital on 06.05.2014. If 06.05.2014

was the date of admission with the history of burn

injuries, it is surprising that no information was

given to the police. FIR was registered on

02.07.2014. Anitha was admitted to the hospital

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for the second time on 26.06.2014. It appears

that from 26.06.2014 till 02.07.2014, no MLC

report was sent to police. It is not understandable

as to why the doctors at the district hospital did

not think it necessary to send a MLC report to the

police station. It is a clear admission of PW17 in

the cross examination that generally MLC report

will be sent to police station if a person is

admitted to hospital having sustained burn

injuries. PW19 was the police inspector who filed

charge sheet and his cross examination shows he

did not collect documents from the hospital about

the treatment given to Anitha from the date of first

admission. He has admitted that the incident took

place on 06.05.2014 and the delay in lodging FIR

was due to threat said to have been given by the

first accused to the deceased. In Ex.P17 also it is

written that there was a threat. Assuming that

deceased was under threat, but nothing prevented

the doctor who admitted Anitha to hospital on

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06.05.2014 from sending information to police

station immediately. If on 06.05.2014 or

sometime later till 15.06.2014, Anitha was in a

condition to make a statement about the cause of

sustaining injury, the doctor could have sent an

information to police inspector for taking the

statement. Till 02.07.2014, law was not set into

motion and there is no explanation for this delay.

13. No doubt the two doctors have stated

that Anitha was in a fit condition to give statement

and Exs.P17 and P27 were recorded in their

presence. But as has been deposed by PW18 he

himself did not take down the statement of Anitha,

rather it was his staff who wrote it down. PW16

the Taluka Executive Magistrate has also stated

that his office staff filled up the format. The

names of the police official who wrote Ex.P17 and

the office staff of PW16 who filled up the form-

Ex.P27, are not mentioned on the respective

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documents and their signatures are also not

forthcoming. They are not cited as witnesses in

the charge sheet. Even though PW16 and PW18

have stated that the statements were recorded in

their presence, in order to hold that the two dying

declarations are credible, the signatures of the

scribe could have been taken and they could have

been examined in the court. It is not always

necessary to obtain the signature of a scribe on

the dying declaration, but in the background of

intrinsic discrepancies in Exs.P17 and P27, it can

be said that if the scribes had been examined, it

could have been possible to appreciate the

evidence in a better manner. The major

discrepancy is this. In Ex.P17 based on which FIR

was registered, the date and time of the incident

as 10.00pm on 06.05.2014 is clearly mentioned.

This could be possible only if Anitha had given the

date and time. But in Ex.P27, the question at

Sl.No.5 is about place and time of occurrence. It

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is stated that the incident took place in the kitchen

of the house of the deceased and it took place

about 2 months. It is clearly written that Anitha

was not able to remember the date. The two dying

declarations were recorded on the same day, but

at different times. If in Ex.P17, the time and date

could be mentioned, why Anitha stated that she

could not remember the date when Ex.P27 was

recorded. Therefore a doubt arises whether Anitha

herself was able to give the details of the contents

of Ex.P27 and an inference to this effect could be

drawn with the help of one answer of PW16 in the

cross examination. He has clearly admitted that

the date of incident and place are not mentioned

because those details were available in the FIR.

He also admitted that he did not ask Anitha as to

when and where the incident took place. If he did

not put these questions, a doubt certainly arises as

to how he could mention in Ex.P27 that the

incident took place in the kitchen about 2 months

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ago. For these reasons both Exs.P17 and P27

become unreliable.

14. Usually the close relatives of the

deceased including the parents support the

prosecution in case of this type. But in this case

none of PW1 to PW12 has supported. PW3 is the

father and PW4 is the mother of Anitha. They

turned completely hostile and their specific answer

in the examination in chief is that her daughter

caught fire accidentally while cooking. PW3 was

also a witness to inquest as per Ex.P1 and while

giving statement before PW16, the Taluka

Executive Magistrate, he stated that accused No.1

set fire to his daughter Anitha. He deposed

contrary to his statement during inquest. When

Anitha was admitted to hospital and was an

inpatient there, the presence of the father and the

mother could be expected. Even they also did not

think of approaching the police if really accused

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No.1 was responsible for sustaining burn injuries.

If according to doctor, MLC report had been

dispatched from the hospital to the police station,

why FIR was not recorded finds no explanation

from the police officers. So looked from this

angle, even though it can be held that the two

dying declarations were recorded in the presence

of doctors who certified the fitness of Anitha to

give statement, the credibility of those statements

is doubtful. Therefore the findings recorded by the

trial court cannot be sustained and consequently

the following:

ORDER

The appeal is allowed.

The judgment and order of conviction

passed by the Principal District and Sessions

Judge, Chitradurga dated 06.07.2017 in

S.C.No.107/2014 is set-aside.