IN TIlE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DIIARWAD DATED THIS THE 2511 DAY OF JULY 201 1 PR ES F NT THE HON’BLF MR.JUSTICE H.BILLAPPA AND THE HONBLE MR. JUSTICE ARALI NAGARAJ CRIMINAL APPEAL No.2501/2010 BETWEEN: Ram ap pa 5/0. Shivappa Baligeri, Caste: Lumbani, Age 32 Years, Oee:Agrieulture, R o. Kakkihalli Tandu, Tq : Yelbu rga, Di St K () 1)01. Appellant (B Sri : M. B. Gunda\vade, Advocate) And State of Karnataka Represented by State Public Prosecutor. High Court ol Karnutaka. Circuit Bench. Dharwad. Through kukanoor Police. ... Respondent (B\ Sri \.M. Banakiui. AddI. S.P.P.) This appeal is filed U/S.374(2) Cr.P.C by the advocate for the appellant praying that this Honbie Court may be pleased to call for records and set aside the Judgement and Order of conviction dated 25.11.2009 and convicting the appellant for the offences U/S. 498-A, 302 of l.P.C. and sentencing him by Order dated 26.11.2008 for the said offences by the F.T.C.-I, Koppal in S.C.No.45/2008 and acquit the appellant from the alleged charges and offences leveled against him and pass any other Order as deems lit. This appeal coming on for hearing this day, Arali Nagaraj J., delivered the following: JUDGMENT This appeal is by the accused in S.C. No. 45/2008 on the file of learned Presiding Officer, Fast Track Court-I, Koppal, (hereinafter referred to as ‘Trial Court’ for short). The appellant-accused has challenged in this appeal legality and correctness of the impugned Judgment and Order of conviction dated 25. 11 .2009 passed in the said case convicting him for the offences punishable under Sections 498-A and 302 of l.P.C. 2. Stated in brief, the case of the prosecution as alleged in Ex.P12 complaint, which is in the form of dying declaration made by the deceased Smt. Jyothi, 3 p the legally wedded wife of the appellant accused herein is as under- a) The marriage of the deceased Smt. Jyothi. the daughter of PWb Smt. Sharadamma, was performed with the accused about 12 years prior to her death. Of the said marriage, the deceased got two children viz., Pratap aqed about 4 years and Manjunath aged about 3 years. b) Since the past three months the accused was ill-treating the deceased by beating and abusing in connection with his demand for 3 to ?4 lakhs from the parents of the deceased on the ground that hc required the said money for purchasing a tractor. The deceased used to inform her parents about the said ill treatment. The could not meet the said demand. Therefore, the accused continued to give the ill-treatment and he used to threaten her that he would kill her. c) On 07.05.2008 at about 8.30 p.m. the deceased finished her dinner along with her children. At about 8.45 p.m. on that day the accused. who had gone out of the house, returned to the house and again picked up quarrel with the deceased demanding the said amount from her parents. 1-Ic pressurised her that she should go to her a 4 I parental house and bring the said money. But she declined to do so. Then he kicked and abuscd her saying that she should die. Then he took kerosene, poured it on her head and then lit firc to her person with intent to commit her murder. d) When she was set on fire, she cried. On hearing the cry, the neighbours viz., Tirupati (PW3) and Yamanoorappa (PW4) came there, extinguished the fire and then took her to the hospital. It was about 9 p.m. on that day when the said incident occurred. The deceased was admitted in the Government hospital at Kukanoor. e) After she was admitted in the said hospital, the P.S.l.(PW14) . came there and recorded her statement (Ex.Pl2). Thereafter she was shifted to KIMS Hospital at Hubli for her further treatment. Unfortunately, she succumbed to the said injuries by about 4 a.m. on 08.05.2008. 3. On the basis of the said complaint, PW14, P.5.1. registered a case in Crime No. 46/2008 of the said P.S. against the accused for the offences under Sections 498-A and 307 of l.P.C. and issued F.1.R. I accordingly and dispatched the same to the jurisdictional Magistrate. After the death of the deceased, the P.5.1. got the accusation against the accused altered from the offence under Section 307 I.P.C. to the one under Section 302 of I.P.C. After completion of investigation, the C.P.l. submitted chargesheet against the accused for the offenoes under Sections 498A and 302 I.P.C. and the accused came to be tried by the Trial Court for the same. 4. On appreciation of the oral evidence of PWs1 to 15, the documents at Exs.P1 to 15 and M.O. Nos.1 to 3, the Trial Court, by its impugned Judgment and Order, convicted the appellant-accused for both the said offences. Therefore, the accused has challenged the correctness of the same in this appeal. 5. We have heard the arguments of Sri M.B. Gundawade, the learned counsel for the appellant accused and Sri V.M. Banakar, the learned Addi. S.P.P. C) I and perused the entire material found in the records obtained from the Trial Court. 6. Sri M.B. (3undawade, the learned counsel for the appellant-accused strongly contends that the conviction of the appellant-accused is based only on Ex.P12 dying declaration which came to be recorded not by the Taluka Executive Magistrate(’TEM’ for short), but by PWI4 P.S.!., and therefore, conviction of the appellant-accused cannot be sustained in law. He further contends that the said dying declaration does not bear the endorsement of PW12, the Doctor who has given evidence before the Court that thc deceased was in a fit state of health to give the said statement; the said dying declaration is not in the form of question and answer, but it is in the form of narration; PW12, the Medical Officer, has not made any endorsement on it to the effect that the deceased was in a fit state of health to give her statement and PWI5. the Police Constable, who wrote the said statement has not made eC 7 I his endorsement thereon for having written it, and therefore, for these reasons also Ex.P12 dying declaration ought not to have been accepted by the Trial Court for basing conviction of the accused. He also contends that if it is the say of PW12 Medical Officer that the deceased affixed her left thumb impression on Ex.P12 statement, the say of PWs. 14 and 15 respectively the P.S.!. and the Constable, who prepared the said statement, that, since the left thumb of the deceased was burnt, her right thumb impression was taken on the said statement. This discrepancy goes to the very root of the case of the prosecution and casts serious doubt on the genuineness of Ex.P12 statement, and therefore, the Trial Court should not have relied upon it to basc the conviction. He also contends that except the allegations in Ex.Pl2 dying declaration, absolutely no evidence is there on record to base the conviction of the accused for the offence under Section 498-A of I.P.C. inasmuch as, PW6 Smt.Sharadamma and PW7 Chandrashekar, who are 8 w respectively the mother and elder brother of the deceased, have not spoken anything about the alleged ill-treatment by the accused. 7. Learned counsel for the appellant-accused further contends that though Ex.P12 dying declaration discloses that when the deceased was caught with fire, PW3 Tirupati and PW4 Yamanoorappa both came there and extinguished the fire and then thcy took the deceased to the hospital, the said PWs. 3 and 4 have not deposed as to those facts and therefore the contents of Ex.Pl2 dying declaration ought not to have been relied upon. While contending so, he prays for acquittal of the appellant-accused, of both the said offences. 8. Per contra, the learned Addi. S.P.P. strongly contends that, law is well settled that the dying declaration need not always be in the form of question and answer and it may be in the form of narration; if 9 ¶1 the Doctor, in whose presence dying declaration is recorded, gives evidence that the deceased was in a fit state of health to give her statement, absence of his endorsement in specific words on the declaration as to that fact, would not be fatal to the prosecution. He further contends that PW15, the writer constable, who reduced to writing the statement of the deceased in the presence of PWI4 P.S.I. and PW12 Medical officer, has specifically stated in his evidence that he recorded the said statement as stated by the deceased in the presence of the said witnesses, and therefore, the dying declaration cannot be doubted. He further contends that the discrepancy as to the thumb impression found on Ex.P12 does not affect the validity of dying declaration, and therefore, the Trial Court has rightly ignored the said discrepancy as the minor one and rightly relied upon the said document for convicting the accused for both the said offences. He further contends that though there is no other evidence on record as to the alleged ill-treatment by 10 the accused to the deceased in connection with his demand for money, the recitals in Ex.P12 establish the same, which itself was motic for the accused to commit murder of the deceased. 9. The learned Add). S.P.P. strongly contends further that though the evidence of PWs. 3 and 4 viz.. Tirupati and Yamanur does not disclose that they extinguished the fire. nevertheless, their evidence clearly establishes that immediately after the deceased was caught with fire, they rushed to the house of the accused and then took the deceased to the hospital, and therefore, it could not be held that they did not support the prosecution case, as made out in Ex.P12 dying declaration. 10. Having heard the arguments of learned counsel for the dppellant and learned Addl. S.P.P.. the point that arises for our consideration is as under: II / “Whether the Trial Court committed any illegality or error in law in basing conviction of the appellant-accused on Ex.P12-the dying declaration?” 11. The facts that the deceased Smt. Jyothi had been the legally wedded wife of the accused; their marriage was performed about 12 years prior to the incident; of the said marriage, they got two children and also that they were staying together in the house of the accused, as on the date of the said incident as alleged in Ex.Pl2 dying declaration, are not in dispute. It is also not in dispute that as alleged in the said dying declaration the deceased was caught with fire, consequently she sustained severe burn injuries and immediately thereafter, PW5 Shivappa, who is none other than the father of the accused (father-in-law of the deceased), along with others, took the deceased to the Government hospital and admitted her for treatment. 12 12. PW14 P.S.l. has stated in his examination-in- chief that on 07.05.2008 at about 10.45 p.m. he received written intimation from the Medical Officer, Government Hospital, Kukanoor, that the deceased Smt.Jyothi W/o. Ramappa Baligeri, Rio. Kakkihalli Tanda was admitted in the said hospital with burn injuries and that immediately thereafter he went to the said hospital, inquired with PWI2 Medical Officer, who was on duty, whether the said deceased was in a fit state of health to give her statement and, after ascertaining that she was in a fit state of health to give her statement, he recorded her statement as per Ex.P12 in the presence of PW12 Medical Officer, by getting the said statement written by his police constable. Nothing is brought in the cross examination of this PW14 to disbelieve this evidence. On the other hand the suggestion put to him by the learned counsel for the accuscd that this PW14, with the assistance of his writer P.C., falsely created Ex.P12, dying declaration goes to show that recording Ii of Ex.P12 statement by PW14 on the said date and time in the presence of PWI2 Medical Officer by getting it written by PW15 PC is not in dispute. 13. PW 12 Medical Officer, Dr.Giridhar, has stated in his evidence that on 07.05.2008 at about 10.30 p.m. the injured Smt.Jyothi was brought to his hospital by P.c. 42 of Kukanoor P.S. having sustained burn injuries and that when he cnquired with the said Smt.Jyothi, she informed him that her husband poured kerosene on her person and lit fire. He has further deposed that she was conscious and was in a fit state of health to give statement, and therefore, PW14 P.S.!. recorded her statement in his presence as per Ex.P12 and, after writing of the said statement was over, it was read over and explained to the deceased and then left thumb impression of the deceased was taken on the said document at Ex.P12(a), he also signed it at Ex.P12(b) and that the signature of the said P.S.!. on it is at Ex.P12(c). On careful reading of the cross- 14 a.t examination of this PWI2 Medical Officer it. could be seen that nothing is brought on record to disbelieve this evidence in his examination-in-chief. 14. Ex.P13 is the case sheet pertaining to the admission of the deceased in the Government Hospital, Kukanoor. This document is also marked through this PW12 Medical Officer. On careful reading of the contents of Ex.P13 it could be seen that history is written as Uburnt by husband around 9.00 p.m., kerosene smell from body present”. This endorsement in Ex.P13 clearly goes to show that the deceased was admitted in the hospital with a history that she was burnt by her husband i.e., the accused. Learned counsel for the appellant-accused, referring to the contents of Ex.P13 ease sheet insofar as they relate to the history of the patient, contends that as could be seen from the said contents, the said history was given, not by the deceased, but by the Police Constable, who brought the deceased to the hospital, 15 and therefore, since the prosecution has not examined the said Police Constable, it could not be held that the said history was given by the deceased herself. This submission does not deserve acceptance for the reason that, though it is mentioned in the case sheet that the deceased was brought to the hospital by P.C. No. 42 of Kukanoor P.S., it cannot be said that the history was given by the said Constable. Besides this, P.W.12 Doctor has stated in his evidence that when he enquired with the deceased, she told him that her husband poured kerosene on her person and lit fire. This piece of evidence has remained totally unchallenged inasmuch as no specific suggestions are made to this PW12 Medical Officer in this regard. No material is brought on record to suspect that the deceased could be prompted to give the said history or that some one either having interest in the deceased or having an axe to grind against the accused could get the said history mentioned in the case sheet falsely. Even if it is assumed that the said Constable might lb U- have given the said history, since the Constable was not related to the deceased, he could have given the said history only on the basis of the information that could have been given to him by the deceased herself. 15. It is quite natural that the Doctor, who admits a patient for treatment, would enquire the patient himself/herself as to the history of the patient unless the patient is accompanied by his/her relative or a person having knowledge of the history. It is not the ease of the accused that..any of the relatives of the deceased was present there when the deceased was admitted in the hospital so as to give to the Doctor the said history falsely. 16. On careful reading of Ex.Pl2 dying declaration it could be seen that, at the foot of the statement, the Doctor has endorsed that the said statement came to be recorded in his presence. Below the said endorsement he has put his signature and he 17 C. has identified his signature before the Court. Referring to this endorsement, learned counsel for the appellant-accused contends that this endorsement does not disclose that the deceased was in a fit state of health so as to give the said statement, and therefore, the Trial Court ought to have rejected the said statement. It is well settled that such an endorsement by the Doctor has to be taken on the dying declaration as a matter of caution to see that the statement was voluntary and truthful. The Doctor has made entry in the case sheet Ex.Pl3 as to the history that the husband of the deceased burnt her and kerosene smell was present on her body. He has deposed in his evidence before the Court that the deceased disclosed before him that she was set on fire by her husband. Besides this, he has made endorsement on Ex.P12- dying declaration that the said statement was recorded in his presence. Further, he has put his signature just below the said endorsement and he has identified the thumb impression of the deceased and I8 C the signature of PW14 P.S.l. also on the said statement. Under these circumstances, we are of the opinion that absence of specific endorsement in clear words on Ex.P12 that the deceased was in a fit state of her health to give the said statement is not fatal to the case of the prosecution and the dying declaration could not be rejected on that ground. 17. Further, the absence of endorsement of PW15 writer constable, who wrote the said dying declaration is also not fatal to the case of the prosecution inasmuch as PW14 P.S.l. has stated in his evidence in clear terms that he got the said statement written by his writer P.C. in the presence of the Doctor and that after the same was written, its contents were read over and explained to the deceased and then he obtained her thumb impression. Added to this, PW15-the writer constable has also deposed the same. Besides this, as observed by us supra, recording of the said statement IL, by PW14 P.S.l. as.deposed by him in his evidence is not in dispute. 18. There is discrepancy as to the thumb impression found on Ex.P12 dying declaration. It is the specific say of PW12 Medical Officer that the said impression is of left thumb of the deceased. But it is the specific say of PWs14 & 15, respectively the P.S.l. and writer constable, that the said impression is of right thumb of the deceased. It is their further evidence that since her left thumb was injured, they took right thumb impression on Ex.P12. It is endorsed on Ex.P12 that it is right thumb impression. Ex.P7 P.M. Examination Report reveals that the Medical Officer, who conducted autopsy on the dead body of the deceased, noticed ink mark on left thumb of the deceased. Thus, it is clear that the thumb impression, which is found on Ex.P12 must be of left thumb of the deceased, but not the right thumb of the deceased as endorsed on it or as deposed by PWs. 14 and 15 in 21) & their evidence. Post Mortem Examination Report discloses that the deceased had sustained deep burn injuries all over her body except outer aspect of left leg, both soles, both palms and both axilla. The very fact that P.M. Report, which is not in dispute, discloses that inkmark was seen on the left thumb of the deceased goes to show that there was no burn injury to the left thumb of the deceased. Thus, it is clear from these contents of P.M. report that, as rightly observed by the Trial Court in its Judgment, the left thumb of the deceascd was not injured so as to make it impossible for her to affix her left thumb impression on Ex.P12 dying declaration. Therefore, we are of the considered opinion that the submission of learned counsel for the appellant-accused that in view of the said discrepancy the Trial Court ought to have rejected Ex.P12 statement, cannot be accepted. 19. Law is well settled that conviction can be based solely on the dying declaration of the deceased, 21 is if it is found to be voluntary and truthful. It is pertinent to note that the deceased sustained burn injuries at about 9 p.m. She was admitted in the hospital by about 10.30 p.m. The information as to the admisslbn of the deceased in the hospital was given to PW14 P.5.1. by the Medical Officer concerned and the said P.5.1. received the same by about 10.45 p.m. and, in response thereto he immediately rushed to the hospital for recording the statement of the deceased. It is also pertinent to note that the Ex.P12 statement came to be rccorded immediately after the P.S.1. arrived at the hospital and, soon after the same was recorded, the deceased was shifted to KIMS Hospital, HubLi, for further treatment and that within 4 hours thereafter she succumbed to the burn injuries. Further, immediately after recording the dying declaration, PW14 P.5.1. returned to his P.S., registered the case against the accused on the basis of the said statement for the offences punishable under Sections 498-A and 307 of I.P.C. and issued F.l.R. as .fl ‘A per Ex.Pl0. The records further disclose that the said F.l.R. was dispatched to the residence of jurisdictional Magistrate without any delay and the same was received by the learned Magistrate at 3.30 a.m. on 08.05.2008. 20. Thus, it is clear that within a period of about 6 hours aftcr the occurrence of the incident, the deceased was taken to thc hospital, she was admitted there, intimation was sent by the Medical Officer to the concerned police, the police rushed to the hospital, the statement of the deceased came to be recorded, crime came to registered on the basis thereof, FIR. came to be issued and dispatched, and the F.l.R. was received by the learned jurisdictional Magistrate. These chain of facts and circumstances clearly show that there could be no occasion for anyone including the P.S.l. to falsely create Ex.P12 dying declaration, with the assistance of his sub-ordinate i.e., writer P.C.(PWIS) as suggested to PW14 by the learned counsel for the 23 I accused. Further, no material is brought on record to probabalise tutoring of the deceased by any one to give the said statement falsely against the accused. 21. Furthermore, on careful reading of the contents of Ex.P12 dying declaration, it could be seen that the facts pertaining to the marriage of the accused with the deceased, the names of parents of the deceased and the accused, the names of two children of the deceased with their respective age, the fact that the deceased was subjected to cruelty by the accused in connection with his demand for money to the extent of ? 3 to 4 lakhs and the circumstances under which the deceased sustained the burn injuries, are all stated in it in clear terms. All these facts could be known only to the deceased, accused and the members of their respective families but not to either PWI4 P.S.l. or PW15 writer constable, who were totally strangers to the accused and also the deceased. This being so, all the facts and circumstances contained in Ex.P12 dying 24 I’ declaration which were within the exclusive knowledge of the deceased and the accused, clearly go to show that the PWI4 P.S.l. or PW15 writer P.C. or even PWI2- the Medical Officer, could not have had knowledge of any of the said facts. Therefore, in the absence of any material brought on record in the cross-examination of any of the prosecution witnesses as to who could possibly give all such information to PWI4 P.S.l. for falsely creating Ex.Pl2 dying declaration, it cannot be held that the said statement could bc created falsely against the accused. 22. Further, at the time whcn the said statement was recorded by PW14 P.S.l. he had no time to get the presence of