Smt Lakshmamma vs The State Of Karnataka
2023 Latest Caselaw 2596 Kant

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                                                      CRL.A No.1877/2019




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 25TH DAY OF MAY, 2023

                                        PRESENT

                        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

                                           AND

                 THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

                         CRIMINAL APPEAL NO. 1877/2019 (C)

                BETWEEN:

                SMT LAKSHMAMMA
                W/O RAMANAYAK
                AGED ABOUT 59 YEARS
                OCC: COOLI
                R/AT HAMPASANDRA TANDA
                HOSUR HOBLI, GOWRIBIDANURU TALUK
                CHIKKABALLAPURA DISTRICT - 561 208          ...APPELLANT

                (BY SRI.BALAKRISHNA M R, ADVOCATE)
                AND:

                THE STATE OF KARNATAKA
Digitally       BY GOWRIBIDANURU RURAL POLICE STATION
signed by K S
RENUKAMBA       REPRESENTED BY STATE PUBLIC PROSECUTOR
Location:       HIGH COURT BUILDING
High Court of
Karnataka       BENGALURU - 560 001                        ...RESPONDENT

                (BY SMT.RASHMI JADHAV, HCGP)
                     THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
                PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
                ORDER OF SENTENCE DATED 10.09.2015 PASSED BY THE PRINCIPAL
                DISTRICT   AND    SESSIONS   JUDGE,   CHIKKABALLAPURA   IN
                S.C.NO.71/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE
                OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

                     THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
                K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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                                                 CRL.A No.1877/2019




                             JUDGMENT

Challenging the order of conviction and sentence passed

against her, the accused in SC No.71/2013 on the file of the

Prl. District and Sessions Judge, Chickballapur has preferred

this appeal.

2. The appellant was the sole accused in SC

No.71/2013 before the trial Court. For the purpose of

convenience, the parties will be referred to henceforth

according to their ranks before the trial Court.

3. The accused was prosecuted in SC No.71/2013 for

the charge for the offence punishable under Section 302 of IPC

on the basis of the charge sheet filed by Gowribidanur Rural

Police in Crime No.205/2012 of their Police Station. Crime

No.205/2012 was initially registered for the offence punishable

under Section 307 of IPC on the basis of the alleged dying

declaration as per Ex.P7 given by injured Shobhabai, w/o

Thimma Naika. She died on 25.09.2012. Therefore, the case

was converted from 307 to 302 IPC. The case of the

prosecution in brief is as follows:

i) The accused is the aunt of deceased Shobha bai.

PW.1 is the son of deceased Shobha bai. PW.3 is the fostered

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son of the deceased. PW.2 is the wife of PW.3. PW.4 is the

neighbour of the deceased and PW.5 is resident of the same

village. There was illwill between the accused and the

deceased due to some land disputes between them. About 3

days prior to the incident i.e., on 21.09.2012 PW.1, who was

working in Bengaluru had given Rs.5,000/- to the deceased.

She had given that to PW.2. On the date of incident, the

deceased asked PW.2 to return Rs.5,000/-. PW.2 returned only

Rs.4,000/- and said that somebody has stolen the balance of

Rs.1,000/-.

ii) On 21.09.2012 at 9. p.m. the deceased was

abusing the persons who have stolen Rs.1,000/-. The accused

picked up quarrel saying that the deceased is abusing her only

and with an intention to commit her murder poured kerosene

oil on the deceased and set her ablaze. The victim suffered

burn injures and raised alarm. Listening to her commotion

PW.1 and Tulsi Naika S/o Rama Naika rushed to the spot and

put off the fire. She was shifted to Gowribidanur hospital.

PW.8 gave her preliminary treatment. When she was being

treated in the said hospital, on receiving the information PW.6

the head constable of Gowribidanur Rural Police Station visited

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the hospital and recorded the statement of the victim as per

Ex.P7 in the presence of PW.8.

iii) On the basis of Ex.P7 he registered the FIR Ex.P8 in

Crime No.205/2012 for the offence punishable under Section

307 of IPC. He visited the spot, conducted spot mahazar and

when he was investigating the matter, on 26.09.2012 PW.1

appeared before the Investigating Officer and gave statement

as per Ex.P1 reporting the death of Shobha Bai. Based on that

he converted the case from 307 of IPC to 302 IPC. PW.6

conducted part of the investigation and handed over further

investigation to PW.7. PW.7 on partly conducting the

investigation handed over to PW.9, PW.9 conducted further

investigation and filed the charge sheet.

4. The trial Court on hearing the parties framed the

charge against the accused for the offence punishable under

Section 302 IPC. The accused denied the charge and claimed

trial. Therefore, the trial was conducted. In support of the case

of the prosecution, PWs.1 to 11 were examined, Exs.P1 to 14

and M.O.1 were marked. After her examination under Section

313 Cr.P.C. the accused did not file any defence statement nor

lead any defence evidence.

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5. The trial Court on hearing the parties by the

impugned judgment and order convicted the accused for the

charge for the offence punishable under Section 302 IPC and

sentenced her to life imprisonment and fine of Rs.3000/-, in

default to pay fine amount to undergo rigorous imprisonment

for one year.

6. The trial Court held that though PWs.1 to 4 the

material witnesses turned hostile, Ex.P7 the dying declaration

of deceased was found to be unimpeachable. The trial Court

further held that since dying declaration is proved to the

satisfaction of the Court, the conviction can be based solely on

the dying declaration. Challenging the said judgment and order

of conviction and sentence the accused is before this Court.

Submissions of Sri M.R.Balakrishna, learned counsel for the appellant:

7. In Ex.P7 the alleged dying declaration and in Ex.P11

the Medico Legal Case register extract, there are many

unexplained alterations. In Ex.P7 the doctor has not certified

the fitness of the victim to give statement. As per PW.8 the

victim had suffered 80% to 90% burns. The alleged eye

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witnesses PWs.1 to 5 and 10 who are the close relatives of the

deceased herself did not support the case of the prosecution

that the burns were homicidal one. As against that they

claimed that the deceased suffered burns due to electrocution

and thus they were accidental burns. The evidence of PWs.6

and 8 regarding recording of the dying declaration Ex.P7 was

unreliable. There was no evidence in proof of the fitness of the

victim. The victim died after 4 days of the incident, no efforts

were made to get her statement recorded by Executive/Judicial

Magistrate. Under the circumstances the trial Court committed

grave error in convicting the accused solely based on Ex.P7

accepting the evidence of PWs.6 and 8.

8. In support of his submissions, he relies on the

following judgments:

1)    Jayamma & Anr. Vs. State of Karnataka1

2)    Paparambaka Rosamma and Ors. Vs. State of A.P.2

3)    Surinder Kumar Vs. State of Haryana3
4)    K.Ramachandra Reddy and Anr. Vs. The Public Prosecutor4

5)    Rasheed Beg and Ors. Vs. State of M.P.5



  (2021)6 SCC 213

  (1999) 7 SCC 695

  2012 AIR SCW 494

  AIR 1976 SC 1994

  AIR 1974 SC 332

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Submissions of Smt.Rashmi Jadhav, learned HCGP for respondent:

9. There is no mandate that dying declaration shall be

recorded by the Executive/Judicial Magistrate and the same

shall be in the question and answer form. The victim died after

five days of the incident. The statement was recorded on the

date of the incident itself. Though PW.8 did not certify the

fitness of the victim in Ex.P7, during the course of the

statement she said that she was in a fit condition to give the

statement. There was no reason to disbelieve her fitness.

Certification of the fitness on the dying declaration is not

mandatory. PWs.1 to 5 and 10 might have been turned hostile

for several reasons. But the same PW.1 had given statement as

per Ex.P1 before the police. That goes to show that after the

death of victim they have turned hostile for mysterious

intervening reasons. PWs.6 to 9 had no animosity or ill will

against the accused to falsely implicate her. Therefore the trial

Court rightly relied on their evidence and convicted the

accused. The said judgment does not warrant interference of

this Court.

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10. In support of her submission she relies on the

following judgments:

1)       Dhan Singh Vs. State of Haryana 6

2)       The State of Jharkhand Vs. Shailendra Kumar Rai @ Pandav
         Rai7

11. Having the regard to the rival submissions and the

material on record, the question that arises for consideration

is:

i) Whether the trial Court committed illegality and perversity in convicting the accused for the offence punishable under Section 302 of IPC ?

Analysis

12. There is no dispute that the deceased is the mother

of PW.1 and the accused is the aunt of the deceased. It is also

not disputed that PW.3 is the fostered son and PW.2 is his wife

and they were residing with the deceased. As per the

prosecution itself PW.1 was working in Bengaluru during the

relevant period. The case of the prosecution is that there were

land disputes between the deceased and the accused and

therefore accused had grudge against the deceased.

(2010) 12 SCC 277

AIR 2022 SC 5393

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13. The other cause for commission of the offence

according to the prosecution is that PW.1 had given Rs.5,000/-

to PW.2-Reethamma and out of that Rs.1000 was stolen by

somebody. On learning that, the victim was abusing the thief.

In the background of previous illwill and under the impression

that the deceased is abusing her only, on 21.09.2012 at 9.00

p.m. the accused poured kerosene on the victim and set her

ablaze. According to the prosecution the incident was

witnessed by PWs.1 to 5, the victim in that regard gave

statement Ex.P7 to Gowribidanur hospital.

14. The case of the prosecution is based on:

      i)      The circumstance of motive;

      ii)     The evidence of PWs.1 to 5 the eyewitnesses;

      iii)    The dying declaration Ex.P7 said to have been

              given by the victim;

      iv)     The evidence of PW.10 inquest Mahazar witness;

      v)      The evidence of PWs.8 and 11 the doctors who

treated the victim in Gowribidanur Hospital and

conducted postmortem examination in Victoria

Hospital respectively; and

vi) The evidence of Police Officers PWs.6, 7 and 9.

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Reg: Cause of death.

15. As per the evidence of PW.11 the doctor who

conducted post-mortem examination and issued Ex.P12

postmortem report, victim died due to septicemia as a result of

burn injuries sustained by her. Therefore even as per the

prosecution's own case the burns were not the direct cause of

death. But, it was septicemia the secondary cause which led to

the death. On that issue there is no dispute between the

parties. Therefore the evidence of PW.11 is formal.

Reg: Motive

16. To substantiate the allegation of motive the

prosecution relied on the evidence of PWs.1 to 5. PWs.1 to 5

totally turned hostile and denied the allegation that they have

given any statement regarding the alleged land dispute

between the accused and the deceased. Even in Ex.P1 the

alleged complaint by PW.1 there is no whisper about any

dispute or the accused pouring kerosene, setting the deceased

ablaze in connection with loss of money or the deceased

abusing the thief for such loss of money. Therefore the

prosecution absolutely failed to prove the motive circumstance.

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Reg: Commission of Crime by the accused

17. To prove the fact that on 21.09.2012 at 9.00 p.m.

the accused in front of her house in Shravandahalli village

poured kerosene on the victim and set her ablaze, the

prosecution relied on the evidence of PWs.1 to 5 the alleged

eye witnesses and the dying declaration Ex.P7. The eye

witnesses who are the close relatives of the deceased herself

totally turned hostile to the case of the prosecution. They

contended that on 21.09.2012 there was Ganesha Festival

celebration in their village and there were lighting

arrangements, on that day there was electrocution, thus she

suffered the injuries. It was vehemently contended that PW.1

himself gave the complaint Ex.P1 implicating the accused and

later he has turned hostile to help the accused.

18. Learned HCGP relying on the judgment of the

Hon'ble Supreme Court in Shailendra Kumar Rai's case

referred to supra submits that even the Supreme Court has

taken note of the fact that witnesses turn hostile for several

reasons. Therefore, this Court has to hold that the witnesses

have turned hostile for some obvious reasons. It is true that in

para 53 of the said judgment referring to its earlier judgment,

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the Hon'ble Supreme Court has set down the circumstance

under which the witnesses may turn hostile. The grounds noted

therein are;

      i)     Threat or intimidation;

      ii)    Inducement;

      iii)   Use of muscle and money power;

      iv)    Use of stock witnesses;

      v)     Protracted trials; and

      vi)    Hassles faced by the witnesses during investigation

             and trial.

In the cross examination of PWs.1 to 5 the prosecution did not

suggest any of those grounds to PWs.1 to 5 for they turning

hostile. As against that it was suggested that since the accused

is related to them to help her they are deposing falsely which

they denied.

19. So far as PWs.2 to 5 it was suggested that they

have entered into compromise with the accused, therefore they

are deposing falsely which they have denied. In fact the

deceased was the near and dear one of PWs.1 to 3, but nothing

was elicited to show that despite such close relationship, they

preferred to save the accused, at the cost of losing their own

mother/mother-in-law. So far as PW.1 filing the complaint

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Ex.P1, he disowned that Ex.P7 & FIR Ex.P8 shows that by the

time Ex.P1 was allegedly given, the law was already set into

motion. In one case there cannot be two First Information

Reports. Therefore Ex.P1 amounts to the statement made

before the Investigating Officer under Section 161 of Cr.P.C.

which is inadmissible in evidence under the law. Therefore, no

sanctity can be attached to Ex.P1. For the aforesaid reasons the

evidence of PWs.1 to 5 eye witnesses fail.

20. As per the prosecution, PWs.4 and 5 were the

neighbour and resident of the village of the deceased. It

becomes hard to accept that neighbour rather prefers to keep

murderer by his side at the cost of death of another neighbour

or he gains anything by deposing falsely. PWs.4 and 5 gained

nothing by the alleged compromise with the accused. There is

nothing on record to show that accused, a lady aged 55 years

in rural area was in a position to either intimidate the witnesses

or induce them. It is not even the case of prosecution that she

had any wealth to influence the prosecution witnesses.

21. So far as PW.10, he had allegedly given statement

during inquest mahazar implicating the accused who is also the

relative of the deceased. He denied having given any such

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statement. Even in his cross examination the only suggestion

by the prosecution was, he has compromised with the accused

and therefore he was deposing falsely, which he denied. The

same analogy applies to his evidence also and the contention

that the witnesses were tampered by the accused, cannot be

accepted.

Reg: Dying declaration.

22. The other evidence that remained for the

prosecution is Ex.P7 dying declaration of the victim. Soon after

the incident the deceased was taken to Gowribidanur Hospital

and her statement Ex.P7 was recorded by PW.6 in the presence

of PW.8 the doctor. It is the contention of the accused that the

victim was not in a fit condition to give the statement. To prove

that victim was in a fit state to give statement, the prosecution

did not produce her medical case sheet. As per the prosecution

itself the victim's condition was not manageable at

Gowribidanur Hospital. Therefore, she was referred to Victoria

Hospital and she died on 25.09.2012 at 3.30 p.m. i.e., within

four days after the incident. To show that she was in a fit state

the medical records of the Victoria Hospital were also not

collected and produced in the case nor the doctors who treated

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the victim in Victoria Hospital were cited as charge sheet

witnesses.

23. Coming to Ex.P7, according to PW.6 the doctor told

that the victim had suffered 60% burns. Whereas PW.8 the

Doctor himself states that victim had suffered 80% to 90%

burns. The doctor does not depose the degree of burns.

Apparently Ex.P7 does not bear the certification of PW.8 on it

regarding the fitness of the victim to give statement. Ex.P12

the post-mortem report and the evidence of PW.11 the victim

had suffered the following external injuries:

"External injuries:- Infected burns injuries present over face in patches, both upper limbs in patches including

palms front and back of chest in patches front and back

abdomen in patches, both lower limbs in patches except

feet. Sinking of hairs present over scalp hairs, eyebrows and eyelashes. Pockets of pus present over chest of the burnt injuries."

Even according to Ex.P7 and the evidence of PW.6, the victim's

left thumb was burnt. Therefore, the impression of her middle

finger was taken. As per the entries in Ex.P11 MLC register

extract, when she was brought to the hospital the victim had

suffered 80% to 90% burns. Ex.P11 further shows that she was

kept on Intravenous fluids and she was administered some

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drugs. In Ex.P11 while recording history of burns the date is

altered from 21.09.2012 to 22.09.2012. As per the prosecution

the accused inflicted burn injuries on 21.09.2012 at 9.00 p.m.

But in Ex.P11 the date is corrected as 22.09.2012. The entry of

time of admission into the hospital is also corrected from 11.30

p.m. to 12.30 a.m. and again 00.30 is mentioned. The names

of assailants were shown as Umdevi, Laxmamma, Tulsinayaka

and Naveen. Ex.P11 states that the victim was brought by

PW.1. If really the victim had given the said statements in

Ex.P7 the aforesaid four persons should have been shown as

the assailants.

24. Reading of Ex.P7 shows that the time of offence

was initially written as night seven hours and that was altered

as nine. When Ex.P11 shows that Tulasinayaka is the culprit, in

Ex.P7 it is stated that Tulasinayaka on hearing her cries came

and rescued her. In Ex.P7 initially the age of the victim is

mentioned in the top portion as 35 years and the same is

corrected as 39 years. Having regard to the aforesaid

infirmities and doubtful circumstances, it was incumbent for the

Investigating Officer to collect the case sheet of the victim from

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the Gowribidanur hospital as well as from Victoria hospital to

show that she was fit to give statement.

25. Having regard to such infirmities and alterations in

Ex.P7 there is much force in the submissions of the Counsel for

the accused/appellant that the Investigating Officer should

have got recorded the statement of the victim atleast

subsequently through the Executive/Judicial Magistrate. Despite

she surviving for four days thereafter such attempt was not

made by the Investigating Officer. There cannot be any dispute

with regard to legal position that the dying declaration can be

the sole basis for placing conviction of the accused provided

such dying declaration should be clear, cogent and trustworthy

and that should inspire confidence of the Court.

26. In para 41 of the judgment in Shailendra Kumar

Rai's case relied on by learned HCGP herself, the Hon'ble

Supreme Court held that as follows:

"41. There is no rule to the effect that a dying declaration is inadmissible when it is recorded by a police officer instead of a Magistrate. Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it

cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the

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police is admissible must be decided after considering the facts and circumstances of each case."

(Emphasis supplied)

Therefore, there is no fundamental rule that the moment there

is any dying declaration, the accused shall be convicted based

on that. The prosecution has to prove by cogent and consistent

evidence that the victim was fit to give statement and she has

given such statement. Those conditions were not established in

this case. Further the same was not corroborated by the

evidence of alleged eye witnesses or PW.10. The trial Court

without proper evaluation of the evidence only on the ground

that dying declaration can be the sole ground for conviction

proceeded to convict the accused.

27. Perusal of the judgments relied on by Trial Court

shows that in those cases there was certification about the

fitness of the victim to give statement and there was evidence

to corroborate such dying declaration. The trial Court without

noticing the facts of those cases convicted the victim by

omnibus application of those judgments which is incorrect.

28. The judgment in Dhan singh's case relied on by

the learned HCGP shows that even in that case the dying

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declaration was recorded after the doctor declaring the victim

fit to make the statement. Therefore, the said judgment also

cannot be justifiably applied to the facts of the present case.

29. In the similar circumstances, the Hon'ble Supreme

Court in Jayamma's case referred to supra held that unless the

medical condition/fitness of the victim is established, where

the victim's own close relatives deny the homicidal burns the

dying declaration cannot be relied. In the similar circumstance,

the Hon'ble Supreme Court disbelieved the dying declaration on

eight grounds, two amongst them were victim being illiterate,

old aged and her fitness to give statement not being

established and her own relatives denying the homicidal burns

and claiming the burns as suicidal burns.

30. In this case also, as already observed, the victim's

fitness to give statement was not established, withholding her

medical case sheet. There were several alterations in dying

declaration and MLC register entries. More over the names of

assailants did not match with MLC history recorded in MLC

register.

31. The Hon'ble Supreme Court in the judgment in

Paparambaka Rosamma's case relied on by the learned

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counsel for the appellant disbelieved the dying declaration on

the ground that the victim had suffered 90% burns and the

certification of the doctor was only about the consciousness of

the victim and not about her fitness to give statement. In that

case the doctor had certified at the end of the dying declaration

that the patient was conscious while recording the statement.

In the case on hand there is not even such certification. It is

only said that the statement was recorded before the

doctor/PW.8.

32. In para 6 of the judgment in Ramachandra

Reddy's case the Hon'ble Supreme Court held that while great

solemnity and sanctity is attached to the words of a dying man

because a person on the verge of death is not likely to tell lies

or to concoct a case so as to implicate an innocent person, yet

the Court has to be on guard against the statement of the

deceased being a result of either tutoring, prompting or a

product of his imagination. It was further held that the Court

must be satisfied that the deceased was in a fit state of mind to

make the statement and the dying declaration is true and

voluntary.

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33. In Rasheed Beg's case relied on by the learned

counsel for the appellant it was held that the dying declaration

recorded under the suspicious circumstances should not be

acted upon without corroborative evidence. In this case also,

the evidence discussed above shows that the dying declaration

was shrouded with suspicion. Therefore, that required

corroboration. But, PWs.1 to 5 and 10 the alleged eye

witnesses did not corroborate the same.

34. The trial Court in relying on such suspicious dying

declaration, acted contrary to the other evidence on record and

the aforesaid judgments of the Hon'ble Supreme Court.

Therefore, the impugned judgment and order of conviction and

sentence is not sustainable in law. Hence the following:

ORDER

i) The appeal is allowed.

ii) The impugned judgment and order of conviction

and sentence dated 10.09.2015 passed by the Prl. District and

Sessions Judge, Chikkaballapur in SC NO.71/2013 is hereby set

aside.

iii) The appellant/accused is acquitted of the charge for

the offence punishable under Section 302 of IPC.

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iv) The order of the trial Court with regard to disposal

of the property is maintained.

v) The appellant/accused shall be set at liberty

forthwith, if her detention is not required in any other case.

vi) Communicate the copy of this order to the trial

Court and the concerned prison forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

akc