Karnataka High Court
Mallappa vs The State Of Karnataka on 5 June, 2024
-1-
CRL.A No. 1068 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 1068 OF 2018 (C)
BETWEEN:
MALLAPA
SON OF LATE NANJAPPA
NOW AGED 53 YEARS
R/O KATHALAVADI VILLAGE
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT - 571 441.
...APPELLANT
(BY SMT. SOHANI HOLLA, AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA
BY CHAMARAJANAGAR RURAL POLICE
REPRESENTED BY SPP OF HIGH COURT OF
KARNATAKA, HIGH COURT BUILDING
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. M V ANOOPKUMAR, HCGP)
THIS CRL.A FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 30.01.2018 AND ORDER OF
CONVICTION AND SENTENCE DATED 30.01.2018 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 AND 498-A OF
IPC, PASSED BY THE COURT OF THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE CHAMARAJANAGAR (SITTING AT
KOLLEGALLA) IN SESSIONS CASE NO.105/2012.
DATE ON WHICH THE APPEAL
WAS RESERVED FOR JUDGMENT 26.03.2024
DATE ON WHICH THE JUDGMENT
WAS PRONOUNCED 05.06.2024
-2-
CRL.A No. 1068 of 2018
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, S. RACHAIAH J, DELIVERED THE FOLLOWING:-
JUDGMENT
1. This appeal arises out of the judgment of conviction and
order on sentence dated 30.01.2018 in S.C.No.105/2012
on the file of the Additional District and Sessions Judge,
Chamarajanagara (Sitting at Kollegala), wherein the
accused has been convicted for the offence under Section
302 of Indian Penal Code (for short 'IPC') and is
sentenced to undergo simple imprisonment for life and to
pay fine of Rs.3,000/-. Further, the Trial Court recorded
the conviction of accused for the offence punishable
under Section 498-A of IPC and sentenced him to
undergo imprisonment for a period of one year and to pay
fine of Rs.1,000/-.
2. The ranks of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case:
3. It is the case of the prosecution that the marriage
between the accused and the deceased was solemnized
20 years ago. The couple had two children. The accused
was in the habit of consuming alcohol on everyday and he
was not taking any responsibility of the family. The
deceased was maintaining the family by rearing the cows
and selling milk for her livelihood. Both children were
staying in their grandparents' house.
4. Such being the fact, the marriage of the daughter was
fixed and the betrothal ceremony was solemnized and
marriage was to be performed shortly. On 05.07.2012,
around 5.30 p.m., the accused came to his house by
consuming alcohol. It was questioned by the deceased
and instructed him that he should mend his ways and
tried to de-addict the alcohol as the marriage of the
daughter was nearing. The accused did not heed her
words. Being enraged by the negligence, the deceased in
order to threaten the accused took kerosene can and
tried to pour kerosene on her. However, the accused
snatched the said kerosene can and poured on her and
set fire to her. As the flame was ignited, he ran away
from the house. The deceased was shifted to hospital
after extinguishing the fire by the well-wishers.
5. When the deceased was admitted for treatment in the
Government hospital at Gundlupet, on receiving the
information, PW.26 came to the hospital and obtained the
fitness certificate from the Doctor and instructed PW.23
to record the statement of the victim. After recording the
statement of the victim, the FIR came to be registered in
Crime No.163/2012 for the offences punishable under
Sections 302 and 498-A of IPC against the accused. After
conducting the investigation, submitted the charge sheet.
6. To prove the case of the prosecution, the prosecution
examined 28 witnesses i.e., PW.1 to PW.28, and got
marked 25 documents at Ex.P1 to Ex.P25 and also
identified material objects at M.O.1 to M.O.3. On behalf
of the accused, document at Ex.D1 was marked. The
Trial Court, after hearing the arguments and perusing the
documents available on record, recorded the conviction
against the accused for the offences stated supra.
7. We have heard Smt.Sohani Holla, learned Amicus Curiae
for appellant and Sri.M.V.Anoopkumar, learned High
Court Government Pleader for the respondent - State.
Submission of learned Amicus Curiae for appellant:
8. It is the submission of the learned Amicus Curiae for the
appellant that the findings of the Trial Court in recording
the conviction, based on the alleged statement of the
deceased, are not proper. The entire case is based on
the circumstantial evidence. When such is the fact, the
corroboration to record such conviction is necessary.
However, the Trial Court ignored in considering the
independent corroboration. Therefore, the said conviction
needs to be set aside.
9. It is further submitted that the prosecution examined 28
witnesses, out of 28 witnesses none of the witnesses
have stated about the presence of the accused in the
house at the time of the alleged incident. PW.8 and
PW.10 are the children of the deceased and accused.
They were staying at their grandparents' house. Even
though PW.1 is said to have received information from
the deceased regarding the reason for death, he has not
made any efforts to lodge a complaint immediately before
the nearest police station. The manner in which the
statement of the deceased was recorded is shrouded with
doubt, therefore, the conviction is required to be set
aside. Making such submission, the learned Amicus
Curiae for the appellant prays to allow the appeal.
Submission of learned HCGP for respondent-State:
10. Per contra, Sri.M.V.Anoopkumar, learned High Court
Government Pleader for the respondent - State has
vehemently justified the judgment of conviction passed
by the Trial Court and submitted that the conviction can
be recorded based on dying declaration without any
corroboration, if such dying declaration inspires the
confidence of the Court. The evidence of the related
witnesses is consistent in respect of the conduct of the
accused. According to them, the accused was in the habit
of consuming alcohol and he was assaulting the deceased
frequently without any reason. The children of the
accused are also consistent in their evidence that the
accused was in the habit of consuming alcohol and was
not taking any responsibility of the family. The evidence
of PW.26 who was working as ASI clearly discloses that
he recorded the statement of the deceased and it was
scribed by PW.23. The Doctor who was examined as
PW.21 has issued a certificate about the medical fitness
of the deceased and it is a part of the statement which is
marked as Ex.P1.
11. It is further submitted that even P.W.1 has stated in his
evidence that he had received information from the
deceased regarding the incident when she was taking
treatment at Government Hospital, Gundlupet. The Trial
Court after considering the evidence, both oral and
documentary, recorded the conviction which is
appropriate and relevant and therefore, interference with
the said findings may not be necessary. Making such
submission, the learned High Court Government Pleader
for the respondent - State prays to dismiss the appeal.
ANALYSIS AND REASONS
12. The facts which were emerged from the record would
indicate that the deceased and the accused were husband
and wife. The accused was in the habit of consuming
alcohol on every day. It is stated that he was not taking
any responsibility of the family, therefore, their children
were growing up in their grandparents' house.
13. On 05.07.2012, around 05.30 p.m., both husband and
wife started quarreling with each other regarding the
alcoholic addiction of the accused. The said quarrel
ended in causing the burn injury to the deceased.
14. Of course, the entire case is based on the dying
declaration of the deceased. There are no eyewitnesses
to the case. It is needless to say that the conviction can
be held even on the strength of the dying declaration
without corroboration. However, the said dying
declaration must inspire the confidence of the Court
regarding its genuinity.
15. Before adverting to the merits of the case, it is relevant
to refer the judgments of the Hon'ble Supreme Court on
dying declaration for proper adjudication. In the case of
MUKESH & Another v. The STATE (NCT of Delhi) and
Others1 the Hon'ble Supreme Court held that if the dying
declaration stood corroborated by the medical evidence,
the same can be accepted.
16. In another case, in SURESH CHANDRA JANA v. THE
STATE OF WEST BENGAL and others2 the Hon'ble
Supreme Court held that, if the dying declaration is not
recorded, the statement of the victim given by her in the
first information report should have been treated as her
dying declaration.
(2017) 6 SCC 1
(2017) 3 Crimes 137 (SC)
17. After having considered the dictums of the Hon'ble
Supreme Court, in the present case P.W.26, on
information having been received, went to the hospital
along with PW.23 and obtained a fitness certificate from
PW.21, instructed to record the statement of the victim to
PW.23. After recording the said statement, first
information report has been registered in Crime
No.163/2012.
18. PW.1 being a younger brother of the deceased has
deposed in his evidence that after receiving the
information regarding his sister sustained burn injury, he
went to the hospital at Gundlupet and asked about the
incident. He was told that his brother-in-law who is the
husband of the victim had poured kerosene and set fire
on her. In the meantime, the son of the victim who is
examined as PW.8 had also accompanied PW.1 and both
were instructed by the Doctor to take her to K.R.Hospital,
Mysuru.
19. When PWs.1 and 8 were taking the victim in an
ambulance to K.R.Hospita, Mysuru, PW.8 had also
informed that his father had poured kerosene on her
mother and set her on fire and caused burn injury. These
- 10 -
two oral dying declarations corroborated Ex.P1 which is
the statement of the victim recorded by PW.23 and PW.26
in the presence of the Doctor-PW.21.
20. These witnesses have been cross-examined extensively
by the defence, however, nothing has been elicited to
discredit the trustworthiness of these witnesses.
Therefore, the evidence of these witnesses in our
considered opinion is wholly reliable and conviction could
be recorded on the strength of the evidence of these
witnesses and dying declarations.
21. In addition to the dying declarations, both oral and
documentary, the evidence of related witnesses, namely,
PWs.8, 9, 10, 11 and 12 would disclose that they are the
son, mother, daughter, sister and relative of the victim.
They are consistent in their evidence that the accused
was torturing and assaulting the victim often and he was
consuming alcohol on everyday and used to quarrel with
the deceased even for petty reason and he was not taking
any responsibility of the house. All these witnesses have
spoken about the past history of the accused.
- 11 -
22. After having considered the overall evidence of the
witnesses, in the present case, the victim had given her
statement as per Ex.P1, the same had been reduced into
writing by PW.23 on instruction of PW.26 in the presence
of PW.21 who was the duty doctor as on the date when
the victim was giving her statement.
23. The Doctor who was treating her has been examined as
PW.21 and he issued a certificate of fitness as per Ex.P17.
All these three witnesses are consistent in their evidence
regarding not only the fitness of the victim to give
statement, but also, the statement which she had given
before them. In addition to the dying declaration, the
oral dying declaration given before PW.1 and PW.8 who
are the younger brother and son of the deceased has
been corroborated with Ex.P1.
24. Therefore, we are of the considered opinion that the
prosecution has proved the case beyond all reasonable
doubt about the involvement of the accused. Hence, we
declined to interfere with the findings of the Trial Court.
25. Accordingly, we proceed to pass the following:
- 12 -
ORDER
i) The Criminal Appeal stands dismissed.
ii) The impugned judgment of conviction and order
on sentence dated 30.01.2018 in
S.C.No.105/2012 on the file of the Additional
District and Sessions Judge, Chamarajanagara
(Sitting at Kollegala), is confirmed.
iii) Registry is directed to send the records to the
Trial Court for necessary action.
iv) The services rendered by the learned Amicus
Curiae is appreciated and the appreciation is
placed on record. The Legal Services Authority is
directed to pay remuneration of Rs.10,000/- to
the learned Amicus Curiae.
Sd/-
JUDGE
Sd/-
JUDGE
UN/BSS
