Karnataka High Court
Bude Sab vs State Of Karnataka on 4 November, 2024
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 1055 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1055 OF 2017 (C)
BETWEEN:
BUDE SAB
S/O RAJASAB
AGED ABOUT 36 YEARS
BMTC DRIVER
CHAGALATTI VILLAGE
JALA HOBLI
BANGALORE NORTH TALUK
...APPELLANT
(BY SRI. N.S. SAMPANGI RAMAAIAH, AMICUS CURIAE
VIDE ORDER DATED 28/10/2024)
Digitally signed by
HARIKRISHNA V
Location: HIGH AND:
COURT OF
KARNATAKA STATE OF KARNATAKA
BANGALURU POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-1
...RESPONDENT
(BY SRI. VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT, ORDER OF CONVICTION AND
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CRL.A No. 1055 of 2017
SENTENCE DATED 26.4.2017 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI IN
S.C.NO.15040/2014 -CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 498(A) & 302 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K)
This appeal by the convicted accused directed against the
judgment of conviction and order of sentence dated 26.04.2017
passed in S.C.No.15040/2014 by the V Additional District and
Sessions Judge, Devanahalli, wherein the learned Sessions
Judge convicted the accused for the offences punishable under
Sections 498A and 302 of IPC and sentenced him to undergo
rigours imprisonment for a period of one year and to pay a fine
of Rs.5,000/- for the offence punishable under Section 498A of
IPC. Further, he was sentenced to undergo imprisonment for
life and to pay a fine of Rs.10,000/- for the offence punishable
under Section 302 of IPC.
2. The factual matrix of the prosecution case is as
follows:
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Deceased in this case Smt.Mamtaj is the daughter of late
Dawal Sab and Smt.Bibi. She got married accused 11 years
prior to the incident. Out of their wedlock, they begotten two
children aged about 10 and 5 years respectively. They were
residing in the rented house of PW.1-Ravi at Chagalahatti
village. It is the further case of the prosecution that the
accused was addicted to the bad vices like consuming alcohol.
He used to consume alcohol daily and ill-treat deceased
Smt.Mamtaj. As such, there were quarrel between them on
daily basis. This being the scenario, in the intervening night of
25.04.2014 & 26.04.2014, the accused came to home by
consuming liquor and quarrelled with the deceased. At the early
morning of 26.04.2014 at about 4.30 a.m., the accused picked
up quarrel with deceased by threatened her that, if she is alive,
then he cannot marry another lady. As such, he would kill her.
Accordingly, he took a Can containing Kerosene, poured the
same on her person and lit fire. Due to which, she sustained
burn injuries, shouted for help. By hearing her hue and cry, the
neighbours i.e., PW.1 to PW.4 came to her house and made an
effort to rescue her. Thereafter, they shifted her to a private
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Hospital and from there, she was taken to Victoria Hospital,
Bengaluru and admitted as inpatient.
3. Subsequently, on 26.04.2014, based on the
information provided by the Hospital Authority, the Inspector of
the respondent-Police i.e., PW.15 visited Victoria Hospital,
Bengaluru and recorded the statement of deceased Mamtaj as
per Ex.P10 in the presence of the duty Doctor i.e., PW.12.
Thereafter, he sent a requisition to PW.13 i.e., the Taluk
Executive Magistrate to record the dying declaration of injured
Mamtaj. Thereby, PW.13 visited Victoria Hospital, where the
injured was admitted and recorded the dying declaration of the
deceased in the presence of the duty Doctor as per Ex.P12 at
about 5.00 p.m. Based on Exs.P10 and 12, PW.15 registered
FIR against the accused for the offence punishable under
Section 307 of IPC in Cr.No.74/2014 as per Ex.P18. During the
course of treatment, the said Mamtaj succumbed to the burn
injuries on 30.04.2014 at about 11.45 p.m. As such, PW.15
sent a requisition to jurisdictional Magistrate for permission to
invoke Section 302 of IPC. Accordingly, permission was
accorded by the learned Magistrate and Section 302 of IPC was
invoked in the said crime. Later, PW.15 conducted the
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investigation by drawing inquest panchanama of the dead body
as per Ex.P8, though PW.9-Doctor conducted autopsy over the
dead body and issued post mortem report as per Ex.P6.
Subsequently, PW.15 conducted investigation by drawing spot
mahazar as per Ex.P1 so also by recording the statement of the
material witnesses and by drawing the other relevant
mahazars. After obtaining necessary documents from the
concerned Authorities, the investigation officer laid charge
sheet before the Committal Court against the accused for the
aforesaid offences.
4. After committal of the case before the learned
Sessions Court, the learned Sessions Judge framed the charges
against the accused for the offences punishable under Sections
498A and 302 of IPC and read over the same to him. However,
the accused denied the charges and claimed to be tried.
5. In order to prove the charge levelled against the
accused, before the trial Court, the prosecution examined in
total 15 witnesses i.e., PW.1 to PW.15 and got marked 27
documents as per Exs.P1 to P27 and also got identified 4
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material objects as MO.1 to MO.4. The accused got marked one
document as Ex.D1.
6. After completion of the prosecution evidence, the
learned Sessions Judge recorded statement under Section 313
of Cr.P.C., wherein the incriminating portion of the evidence of
material witnesses read over to the accused and the accused
denied the same. The defence of the accused is one of total
denial and that of false implication. However, the accused has
not examined any witness on his behalf.
7. After assessment of the oral as well as documentary
evidence available on record, the learned Sessions Judge
convicted the accused for the charges levelled against him and
sentenced him as stated supra. The said judgment is
challenged under this appeal.
8. We have heard Sri N.S.Sampangi Ramaiah, learned
Amicus Curiae for the accused so also Sri Vijayakumar Majage,
learned SPP-II for the respondent-State and perused the
records i.e., the impugned judgment and the record secured
from the trial Court.
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9. It is the primary contention of the learned Amicus
Curiae for the appellant that the judgment and sentence
challenged under this appeal suffers from perversity and
illegality since the learned Sessions Judge has failed to
appreciate the evidence on record in a right perspective. He
would contend that the material witnesses i.e., PW.1 to PW.4
partially turned hostile to the prosecution case. In order to
prove the guilt of the accused, the prosecution totally relied on
the evidence of PW.6-the eye witness and Exs.P10 and P12 i.e.,
two dying declarations. According to the learned counsel, there
are much contradiction in two dying declarations i.e., Exs.P10
and P12. As such, those declarations cannot be relied on to
convict the accused. He would also contend that there is a
delay in recording the statement of PW.6. Though PW.6, who is
a police constable, said to be an eye-witness to the incident, his
statement was recorded after two days from the date of alleged
incident. As such, his version cannot be relied on to convict the
accused. He would further contend that the dying declaration-
Ex.P12 though certified by the duty Doctor of Victoria Hospital,
the said Doctor has not been examined by the prosecution.
Further, there is a clear contradiction in respect of thumb
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impression of the deceased. Apart from that, prosecution also
failed to examine the scribe of Exs.P10 and 12. In such
circumstance, there is a clear shadow on the veracity of
Exs.P10 and P12.
10. Learned Amicus Curiae would also contend that
there are contradictions in the evidence of the family members
of the victim, i.e., PW-7 and PW-8, and as such, their version
cannot be relied upon. Much less, they are the interested
witnesses in the prosecution case and as such, their evidence
cannot be believed. Accordingly, he prays to set aside the
impugned judgment and to allow this appeal.
11. Refuting the above submission, learned SPP Shri
Vijayakumar Majage would submit that the judgment of
conviction and order of sentence rendered by the Sessions
Judge does not suffer from any perversity or illegality and the
learned Sessions Judge after meticulously perusing the
evidence as well as the material on record, has passed well
reasoned judgment, which does not call for any interference.
He would further contend that this case is based on the
evidence of eye-witness i.e., PW-6, so also two dying
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declarations i.e. Exs.P10 and P12. PW.15 - Investigating Officer
has recorded Ex.P10, the initial dying declaration of the
deceased, at that time, PW.12-Doctor was very much present,
and issued fitness certificate of deceased. Both these witnesses
have categorically deposed about the genuineness of Ex.P10.
As such, the same is proved beyond reasonable doubt.
Nevertheless, another dying declaration at Ex.P12 is concerned,
PW.13, i.e. the Taluk Executive Magistrate has deposed that
the victim was very much conscious at the time of deposing
Exhibit P12. Hence, according to the learned SPP, there is no
reason to discard the evidence of PW-15, PW-12 and PW-13.
According to him, on a conjoint reading of Exhibit P-10 and
Exhibit P-12 along with the evidence of PWs.12, 13 and 15, the
prosecution has successfully proved both the dying declarations
i.e., Exhibit P-10 and Exhibit P-12. He would also contend that
the evidence of PW-1 to PW-4, i.e. the neighbors, have also
deposed that soon after the incident, PW-1 informed them
about the burn injuries sustained by deceased Mamtaj and
they all visited the spot. Thereafter, PW-2, along with the
accused, shifted the injured to the hospital. It is the specific
evidence of PW-2 and PW-3 that while shifting injured to the
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hospital, the accused jumped from the said vehicle and
escaped. As such, the said conduct of the accused itself shows
that he is the perpetrator of the crime. The learned SPP would
also contend that the evidence of PW-7 and PW-8, i.e. the elder
brother and the mother of deceased, corroborate each other
and they have categorically stated about the ill-treatment
meted out by the accused to the deceased before her death.
Further, he contends that an oral declaration was made by the
deceased to PW-7 and PW-8 while she was at the hospital.
Hence, the learned SPP submits that, all these circumstances
clearly point out the guilt of the accused beyond the reasonable
doubt and accordingly the learned Sessions Judge has
convicted the accused for the charges leveled against him.
Hence, he prays to dismiss the appeal.
12. Having heard the learned counsel for the respective
parties so also having perused the documents and evidence
made available before us, the points that would arise for our
consideration are:
"i) Whether the judgment under challenge in
this appeal suffers from any perversity or illegality?
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ii) Whether the learned Sessions Judge is
justified in convicting the accused for the offences
punishable under Sections 302 and 498A of IPC?"
13. We have carefully examined the entire evidence on
record and also the documents placed by the prosecution. In
order to prove the homicidal death of deceased, the
prosecution has relied on the evidence of Doctor-PW9 who
conducted autopsy over the dead body of deceased Mamtaj and
issued Post Mortem report as per Exhibit P-6. On a careful
perusal of Exhibit P-6, the Doctor has opined that the cause of
death is due to septicemia as a result of burn injuries. Apart
from the evidence of PW-9 and Exhibit P-6, the prosecution
also relied on the Inquest Panchanama conducted over the
dead body of the deceased as per Exhibit P-8 as well as the
evidence of PW11-the inquest mahazar witness. On a perusal of
Exhibit P-8, there is multiple burn injuries found on the dead
body of deceased. Further the doctor opined that those injuries
are ante mortem in nature. Hence, on a conjoint reading of
Exhibit P-6 and Exhibit P-8 along with the evidence of PW-9,
PW-11 and PW-12, we are of the considered view that the
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prosecution has successfully proved the homicidal death of
deceased.
14. In order to connect the accused to the homicidal
death of the deceased, the prosecution mainly relied on the
evidence of PW-6 eye-witness to the incident so also dying
declarations at Exhibit P-10 and Exhibit P-12. On a careful
perusal of the evidence of PW-6, the neighbor of the deceased
who is a police constable, has categorically deposed that on the
date of incident, he was in his house and by hearing the hue
and cry of deceased, he had seen the incident of Galata in the
house of accused, wherein the accused was quarrelling with his
wife Mamtaj and thereafter, he poured kerosene on her person
and set her blaze. Though the learned amicus curiae has
argued that there is delay of two days in recording the
statement of PW-6, however in his cross-examination nothing
worthwhile has been elicited from the mouth of this witness to
discard his testimony. Apart from the evidence of PW-6, the
prosecution also relied on the evidence of PW-1 to PW-4,
however, PW-4 completely turned hostile. On perusal of the
evidence of PW-1 to PW-3, all these witnesses have deposed
that on the date of incident, at about 4.30 a.m., the accused
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himself came to their house and informed that deceased caught
accidental fire. Immediately they visited the house of the
accused. At that point of time, the deceased was found with
burn injuries. Thereafter, among them, PW-2 and PW-3 have
shifted the deceased to Victoria Hospital. It is pertinent to
mention at this juncture that PW-2 and PW-3 have categorically
stated that in their evidence that while shifting deceased to the
hospital, the accused was very much present and on the middle
of the way, he jumped out from the vehicle and escaped.
Thereafter, the police caught hold him on 29.04.2014. The
evidence of PW-1 to PW-3 coupled with the evidence of PW-6 -
eye-witness and the conduct of accused after incident creates a
clear suspicion on him. Further, the prosecution also relied on
the initial statement given by the deceased as per Exhibit P-10
in the hospital before PW-15, i.e. the Investigating Officer.
15. We have carefully perused Exhibit P-10. The same
depicts the deceased has deposed before PW-15 that the
relationship between accused and deceased was strained one
and the accused was continuously harassing her physically and
mentally in order to get into a second marriage. Further, it is
also stated that the accused was addicted to bad vices. He
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used to consume alcohol and thereafter assault her physically.
Before recording the said statement by PW-15, Doctor PW-12
examined the deceased /victim and opined that she was in a fit
condition to give such statement as per Exhibit P-10(d).
16. After recording Exhibit P10, PW-15 had requested
PW-13-Taluk Executive Magistrate to record the dying
declaration of deceased by sending requisition as per Exhibit
P-11. Based on such requisition, PW-13 visited Victoria Hospital
and subsequently, recorded the dying declaration of deceased
as per Exhibit P-12. While recording the said dying declaration,
the Duty Doctor of Victoria Hospital was present. No doubt the
prosecution has failed to secure and examine the said Doctor.
Nevertheless, on a careful perusal of the contents of Exhibit P-
10 and Exhibit P-12, there are no such contradictions
forthcoming in respect of the alleged act committed by the
accused. Moreover, PW-12 / Doctor, PW-13 /Tahsildar and PW-
15 / Investigating Officer, have categorically stated before the
Court the victim was very much conscious at the time of giving
both the statements as per Exhibit P-10 and Exhibit P-12. The
said aspect was not seriously disputed by the learned Defence
Counsel.
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17. We have carefully gone through the cross-
examination conducted by the defence counsel in respect of
PW-13 and PW-15. Except denial of their presence in the
hospital and the recording of the statement of the deceased as
per Exhibit P-10 and Exhibit P-12, nothing worthwhile has been
elicited from their mouth to discard the testimony of these
witnesses. In such circumstances, the minor contradictions
pointed out by the learned Amicus Curiae in Exhibit P-10 and
Exhibit P-12, in our considered view, do not go to the root of
the prosecution case. As such, these dying declarations cannot
be discarded.
18. Further, as discussed supra, the evidence of PW-1
to PW-3 coupled with the evidence of PW-6, the eye-witness,
also strengthens the version of Exhibit P-10 and Exhibit P-12.
There is no reason as such to depose against the accused by
PW-6, the neighbor who is an eye-witness to the incident. At
the cost of repetition, it is appropriate to say that PW-2 and
PW-3 have clearly stated that while shifting the injured wife to
hospital, accused jumped from the said vehicle and escaped.
This behavior of the accused clearly creates a doubt about his
conduct that except him, no other person is the perpetrator of
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the crime. Though the defence has been raised by the accused
that, the deceased committed suicide by pouring kerosene and
setting her ablaze, to prove the said defense, the defense
counsel has neither examined any witness nor got marked any
documents. Even the accused failed to explain such situation in
his 313 statement. In such circumstances, the defence of the
accused is not a probable one.
19. Per contra, as rightly contended by the learned SPP,
the prosecution relied on the evidence of PW-7 and PW-8 who
are none other than elder brother and mother of the deceased.
These witnesses have categorically stated that ever since from
the date of marriage of accused and deceased except for few
years, the relationship between the accused and deceased was
a strained one and the accused used to harass the deceased
mentally and physically. Further, they have also stated that
after the incident, while deceased was taking treatment in the
hospital, she has narrated the incident with them that the
accused has poured kerosene on her and set her ablaze and
caused burn injuries. This evidence of PW-7 and PW-8, once
again corroborates with the contents of Exhibit P-10 and Exhibit
P-12. There is no reason to doubt the credibility of the
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evidence of PW-7 and PW-8 so also the evidence of PW-13 and
PW-15 who have recorded the dying declaration as per Exhibit
P-10 and Exhibit P-12. The prosecution also proved the
recovery of MO-1 to MO-4, i.e. empty kerosene bottle / plastic
can, match box, partly burned nighty and petticoat in the house
of accused as per Exhibit P-1. Recovery of all these articles
once again clarifies that, the deceased sustained burn injuries
at her matrimonial house. The accused being the husband of
the deceased is duty bound to explain the death of deceased,
since the same is caused in his house. The presence of
accused at the time of the incident was not disputed by the
accused. In such circumstances, as per the provision of
Section 106 of the Indian Evidence Act, burden cast on the
accused to explain the circumstances that if he has not
committed the murder of deceased, who else has caused the
death of deceased or the reason for the death of the deceased.
In the case on hand, the accused has totally failed to explain
such circumstances. Hence under provision of 106 read with
Section 114 of the Indian Evidence Act, in the absence of
explanation from the accused, presumption can be drawn
against the accused.
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20. Though the learned amicus curia vehemently
submitted that, the time of admission of injured to Victoria
hospital incident was sated that the injured was sustained
accidental burn injury. Hence the prosecution case cannot be
accepted and false implication of the accused on subsequently
cannot be ruled out. However it could be seen from the record
that at the time of admission the history of incident was not
narrated, by injured or family members. Some other persons
brought her to hospital and they might have given such history.
It is also contended that, PW-12 doctor who was present at the
time of recording of dying declaration, has deposed injured put
her thumb mark on Exhibit P-10. However evidence of I.O.
reads, on Exhibit P-10 the left toe impression was obtained.
This contradiction itself is not sufficient to reject the testimony
of PW12 in toto, since other martial witness PW-13 has
deposed in respect the recording of Exhibit P-10 and P-12. The
Hon'ble Apex Court in case of Neem V/s State of U.P. In
Crl. Appeal 1978/2022 dated 05/03/2024, the following
guidelines in a case involved in the multiple dying declaration
(para 6) as under:
"(i) Dying declaration can be the sole basis of conviction if
it inspires the full confidence of the court.
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(ii) The court should be satisfied that the deceased was in
a fit state of mind at the time of making the statement
and that it was not the result of tutoring, prompting or
imagination.
(iii) Where the court is satisfied that the declaration is
true and voluntary, it can base its conviction without any
further corroboration.
(iv) It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such
as the deceased was unconscious and could never make
any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain
all the details as to the occurrence, it is not to be
rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased was
not in a fit and conscious state to make the dying
declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is
true and free from any effort to induce the deceased to
make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it
the basis of conviction, even if there is no corroboration."
21. Applying the above guidelines of the Hon'ble Apex
court to the facts and circumstances, this case, to interpret the
dying declaration in light of scrounging facts of circumstances
and corroborate evidence of PW-10, 12 and 13, it could be
gathered that the deceased was in fit state of mind to deposed
statement. Nevertheless, the evidence of PW-1 to 4 and more
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particularly 2 and 3 while shifting the injured to hospital the
accused jumped from the vehicle, clearly established the fact
that he must have committed crime and he is the perpetrator
of the crime. The defence raised by the accused the deceased
her self committed suicide it cannot be accepted for the reason
no such defence evidence or material placed by the accused to
prove the same.
22. The Hon'ble Apex Court in the case of The State
of Maharastra V/s Nisar Ramzan Sayyed AIR 2017 SC
2363 emphasis the principle enumerated in the famous legal
maxim law of evidence i.e., Nemo Moriturus Praesumitur
Mentire which means a man will not meet his maker with a lie
in his mouth. Our Indian Law also recognizes this fact that " a
dying man seldom lies" or in other words " truth sits upon the
lips of dying man."
23. Bearing in mind the above emphasis by the Hon'ble
Apex Court in respect of the truthfulness of dying deceleration,
and considering the over all evidence of record apart form
Exhibit P-10 and Exhibit P-12, we are of the considered view
that the prosecution has proved the case against the accused
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beyond all reasonable doubt. The learned Sessions Judge has
meticulously examined all the circumstances and passed the
impugned judgment, which does not call for any interference by
this Court. In that view of the matter, we answer the points
raised above in the negative and proceed to pass the following:
ORDER
i) Criminal Appeal No.1055/2017 filed by the
appellant/accused is hereby dismissed.
Consequently, the judgment of conviction and
sentence dated 26.04.2017 imposed by the V
Additional District and Sessions Judge, Devanahalli
in S.C.No.15040/2014, is affirmed.
ii) Registry is directed to pay a Retainer fee of
Rs.20,000/- to Shri N.S. Sampangiramaiah, the
Amicus Curiae who has assisted in this matter.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
VM - paragraphs 1 to 9
KS - paragraphs 10 to till end
