Appumurthy @ Appu vs State

This appeal is by the sole accused being aggrieved of the Judgment passed in S.C. No. 97/01 by the III Addl. Sessions Judge, Bangalore city dated 21.6.2003 convicting the accused for the offence u/s 498-A and 302 Indian Penal Code and sentencing him to undergo R.I. for two years and to pay fine of Rs. 500/- for the offence u/s 498A and further sentencing to undergo imprisonment for life and to pay fine of Rs. 2,000/- for the offence u/s 302 IPC.

The case of the prosecution in brief is as follows:

An young girl Smt. Vadivu @ Vadivukarasi was just married with the accused, three months prior to the incident was done to death by causing burns by her husband Appu @ Appumurthy. The accused Appu was residing with his wife Vadivu at Samdhananagar, was alleged to have addicted to alcohol subjecting the deceased to cruelty and harassment in the thrust of sex by asking her to give a child. On 24.9.2000, the deceased having prepared food at about 8 p.m. called her husband to take food, but the accused compelled her to bed to have sex as he wants a child, which was refused by the deceased Vadivu. The accused-Appu in the thrust of sex and by frustration picked up a quarrel with his wife Vadivu and poured kerosene on her person by lightening matchstick. When she screamed for help, neighbours of that area viz., PW-1 Shivram , PW-2 Rukmini, PW-9 Rani as well as DW-1 Shivagami, sister of the accused rushed near the house and noticed that the door was bolted from inside, they broke open the door. On noticing the burns, they poured water. They noticed that the accused was also present inside the house. Pw-1, PW-2 and DW-1 shifted the injured Vadivu to Victoria hospital. On enquiry, Vadivu informed that the accused poured kerosene and burnt her. PW-3 Dr. B. Vijaya admitted the girl by name Vadivukarasi to the hospital for treatment and the history was furnished by one Ramesh, as accidental burn due to stove burst while cooking. On examination, she found 42% of burns and made entries in the accident register as per Ex. P1. The Sub-inspector of Police, K.G. Halli police station, PW-10 V.K. Umesh on receiving the phone message from Victoria hospital, proceeded along with PW-14 Puttaswamy, Police Constable and his staff. The Sub-inspector inquired with Dr. Vijaya about the condition of the injured to record her statement. PW-3 Dr. Vijaya certified that the patient is in a position to give statement. Accordingly, he recorded the statement of Vadivu as per Ex.P2, returned to the police station, registered a case in Crime No. 310/2000, prepared FIR, Ex.P6 and forwarded to the Court. On 25.9.2000, he visited the spot along with panch witnesses, prepared spot mahazar as per Ex.P5. He recorded the statements of PWs-1, 2, 7, and 8, CWs-4, 5 and 8. On the same day, the accused was apprehended and produced before him by police constables with Buckle Nos. 7686 and 4071. He arrested the accused and produced him before the Court on 29.9.2000 with a remand application to remand him to judicial custody and handed over the case file to Police Inspector PW-13, Pratap for further investigation. The Police Inspector toot over further investigation on 29.9.2000 at 11 p.m. and received the message from Victoria hospital about the death of Vadivu and also the death memo, Ex.P4. On the basis of the death memo, he issued a second FIR Ex.P8 for altering Section 302 to 307 IPC. He secured PW-12 with a request to prepare an inquest mahazar. PW-12, Ahamed Hugsain by securing panch witnesses viz. PW-5 Raju and another, prepared the inquest mahazar as per Ex.P3. The body was subjected to post mortem examination. PW-11, Dr. Manjunath conducted autopsy on the dead body and issued the post mortem report as per Ex.P7 and opined that death was due to toxemia as a result of burns. He forwarded the seized articles to FSL and recorded statement of the witnesses. He received FSL and other reports and after completing the investigation, filed the charge sheet.

The learned Sessions Judge secured the presence of the accused, prepared charges for the offence u/s 498-A and 302 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution, in all, examined PWs 1 to 14 and marked Ex.P1 to P11 and produced MOs 1 to 4. The defence got marked Exs. D1, D1(a) and D2. The statement of the accused was recorded u/s 313 Cr.P.C. The defence of the accused is due to stove burst/ his wife sustained burns and died. The sister of the accused was examined as DW-1. The learned Sessions Judge, after hearing the prosecution and defence, for the reasons recorded in his Judgment, convicted the accused for the offence u/s 498-A and 302 Indian Penal Code sentencing as above. It is this Judgment of conviction and sentence, which is challenged in the present appeal.

Learned Counsel Prof. Venkateshaiah for the appellant vehemently submitted that Ex.P2 cannot be construed as dying declaration since the statement was not recorded properly and that Doctor has also not certified recording the fitness of the maker of the statement. Also submitted that Ex.P2 came into existence at the instance of PWs 7 and B who are the parents of the deceased. It is also submitted that the evidence of DW-1 Shivagami establishes the fact that she was present at the time of the incident of stove burst, as a result of which Vadivu sustained burns and at the same time, the accused also sustained some burns, when he tried to extinguish the fire. Further submits that it is only an accidental fire and therefore the accused cannot be made liable. Secondly, submitted that the evidence of PW-1 Shivaram, PW-2 Rutanini, PW-9 Rani to the effect that the accused and the deceased were quarrelling also cannot be believed and their evidence is doubtful in nature. Thirdly, submitted that the testimony of PW-7 Kuppa Raj and PW-8 Selvi, the parents of the deceased shows that they are interested witnesses. Therefore, their evidence also cannot be relied on. Lastly, submitted that the entire case of the prosecution is doubtful in nature. Therefore, prayed to set-aside the conviction and sentence passed by the learned Sessions Judge and to acquit the accused. Also in the alternative submitted that the accused is all along in prison for the past six years and that the accused has realised his fault. On this ground also prays to take a lenient view and to acquit the accused.

Learned Addl. SPP Sri. Rudramuni submitted that the findings recorded by the learned Sessions Judge is well founded and does not call for interference. Firstly, submitted that the complaint of Vadivu was recorded by the Sub-Inspect or after PW-3 Dr. Vijaya certified the fitness of the injured Vadivu and then the statement came to be recorded as per Ex.P2 in her presence and submitted that the complaint itself assumed the character of dying declaration and there is no infirmities as such to discredit Ex.P2. Further submitted that the evidence of PWs 1, 2 and 9, neighbours have clearly given the picture of the quarrel that used to take place in a routine course between the accused and the deceased and that has become the habit of the accused to quarrel with his wife. Further submitted that the complaint, Ex.P2 reveals the manner in which kerosene was poured and set fire by the accused. It is after letting fire, the injured Vadivu screamed out and then the neighbours PWs 1, 2 and 9, Shivagami, sister of the accused and one Ramesh rushed to the spot, so also PW-7 came to the spot on coming to know of the burns. Thereafter the injured was shifted to Victoria hospital. It is further submitted that the testimony of PWs 1 and 2 shows that the door was bolted from inside and it was broke open and that they noticed the flames on Vadivu, immediately it was put off and at the same time, the accused was inside the house. This shows that it is the accused who poured kerosene and lit fire, as the deceased did not submit herself to the accused for sexual intercourse. Also submitted that the defence is that it is an accidental burn, but after examining the stove, MO1, sent to FSL for chemical examination, the report Ex.P9 shows that it was not a stove burst case. This has falsified the theory of the defence. It is also submitted that the saree and the shirt were also sent to FSL and the report shows the presence of residues of kerosene. Hence, submitted that the above fact clearly establishes that the accused alone poured the kerosene and lit fire and prayed to dismiss the appeal by confirming the sentence and fine.

In the light of the submissions, the point for consideration that arises:

Whether the III Addl. Sessions Judge, Bangalore city is justified in convicting the accused for the offence u/s 498-A and 302 Indian Penal Code? If not, liable to be interfered with?

The entire case of the prosecution rests on the complaint, Ex.P2 of the deceased recorded by PW-10 and PW-14 in the presence of PW-3 Dr. Vijaya, which has assumed the character of a dying declaration within the meaning of Section 32(1) of the Indian Evidence Act. If the Court finds that Ex.P2 were to satisfy the ingredients of Section 32 of the Indian Evidence Act, the question of interfering with the conviction and sentence does not arise. Section 32(1) reads thus:

32(1): A dying declaration is relevant whether the person who made it was or was not, at the time when it was made under expectation of death that is, it is immaterial whether there existed any expectation of death at the time of the declaration. In a Calcutta case it has been observed that the necessity of recording a dying declaration arises only when the hopes of life are given up (Upendra V.R. 52 CLJ 425 : Tehal v. S A. 1979 SC 1347". It is common sense that there is no need to record dying declaration until that state is reached or it is apprehended that a person will not survives).

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It is relevant to note that when a statement is made by a parson as to the cause of the death of the person, such statements are admissible in evidence.

The principle governing dying declaration may be the statement written or verbal of the relevant case/facts made by a person who is dead is called a dying declaration. Dying declaration is an important piece of evidence and conviction can be placed solely on the dying declaration. In that view of the matter, we have to see the credibility of the maker of such statement.

In the case of Ramawati Devi Vs. State of Bihar, , the Supreme Court at paragraphs 7 and 8 thus observed:

In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before & Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question, becomes admissible u/s 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case/ the dying declaration has been properly proved. It is significant to note that in the course of cross-examination or the witness proving- the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health to make any such statement. The doctor''s evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed. In the instance case, it cannot also be said that there is no corroborative evidence of the statement constrained in the dying declaration. The evidence of PWs 1, 4, 5 and 8 clearly corroborates the statement recorded in the dying declaration. We do no find any material on record on the basis of which the testimony of these witnesses can be disbelieved. It stay also be noticed that none of these witnesses including the Police Officer who recorded the statement could be attributed with any kind of ill-feeling against the accused. The High Court has elaborately dwelt on this aspect and has carefully considered All the materials on record and also the Arguments Advanced on behalf of the appellant. We are in agreement with the view expressed by the High Court and in our opinion the High Court was right in upholding the conviction of the appellant.

We, accordingly, dismiss the appeal. The conviction of the appellant u/s 302 of the Indian Penal Code and the sentence imposed on her are upheld. The appellant is now on ball. The ball bond of the appellant is directed to be taken into custody for serving out the sentence.

It is with this background we have to re-assess the testimony of prosecution witnesses and scrutinise carefully and consider whether the conviction and sentence does call for interference?

It is in the evidence of PW-3 Dr. B. Vijaya of Victoria hospital that on 24.9.2000, she was on night duty in the casualty ward. At about 9.20 p.m., a girl by name Vadivukarasi, w/o Appu, aged about 18 years was brought by her relatives, with the history of accidental burns at 8 p.m. due to stove burst while cooking. It is also in her evidence that she examined the patient, she was conscious and was fit to give a statement as she had suffered 42% of burns. After examining, she admitted her as an inpatient and made entries in the accident register, Ex.P1. It is also in her evidence that on the same day police constable and Inspector came to the hospital at about 11 p.m., and ascertained the fitness of the patient to record her statement. It is also clear from her evidence that at 11 p.m. she examined the patient and certified that she is fit to give statement. She has also stated that the patient was conscious, alert and mentally fit to give statement. After certification regarding fitness, the police recorded the statement of Vadivu as per Ex.P2 and her signature was attested by her mother which is at Ex.P2(c). In the cross-examination, insofar as fitness of the patient is concerned, he has specifically stated that the patient was conscious and fit to give her statement. Much of the cross-examination was made regarding fitness of the patient contending that she was not in a position to make any such statement as she had suffered more than 45 of the burns.

While considering the similar situation in the case of Surajdeo Ojha and Others Vs. State of Bihar, the Supreme Court at paragraph 3 observed the nature of the statement made and the certification of the Doctor regarding the fitness thus held:

Mr. Mookherjee appearing in support of the appeal submitted that having regard to the large number of injuries sustained by the deceased, he would not be in a position to speak or give dying declaration. We have ourselves examined the injuries and we find that there was no injury which may have affected the brain or the heart and the only serious injuries are on the abdomen which will not make the deceased unconscious immediately. Moreover, the deceased has also given a short statement which is a proof of the manner in which the deceased was assaulted. The shortness of the statement itself, appears to be the guarantee of its truth. Even the Doctors who examined the deceased do not say, that having regard to the injuries, the deceased would have become unconscious immediately. In this view of the matter we are fully satisfied about the truth of the dying declaration.

In the case referred supra, it is clearly observed the nature of the statement made and the certification of the Doctor regarding the fitness.

In the present case also, the statement of the deceased when recorded by PW-10, Police Sub-Inspector evidences the fact that it is only after certification by Dr. B. Vijaya, the same was recorded which disclosed the manner in which the accused started quarrelling particularly for the sex and when she did not submit herself, the accused poured kerosene and lit fire. Therefore, it has to be held that at the relevant point of time while recording the statement, the deceased was in a fit condition to make statement which does not give room for suspicion or it cannot be held that the deceased was instigated by any person to make such statement. In our opinion, there was no reason for the deceased being an young girl of 18 years to falsely implicate the accused.

The evidence of the Investigation Officer, PW-13 Pratapsingh shows that the patient Vadivukarasi died at about 7.30 p.m. on 28.9.2000 and he received the death memo as per Ex.P4 and issued second FIR by altering from Section 307 to Section 302 and that he secured the Sub-divisional Magistrate PW-12 for preparing the inquest mahazar and thereafter, the dead body was subjected to postmortem examination. PW-11 K.H. Manjunath of Victoria Hospital shows he conducted the postmortem on the dead body of Vadivukarasi on 29.9.2000 in between 12.35 p.m. to 1.35 p.m. and found that the death was due to toxaemia and issued postmortem report as per Ex.P7. He has also opined that the said burns are sufficient to cause death of a person in the ordinary course.

Thus, from the testimony of PW-1 it establishes the fact that the death of Vadivukarasi is homicidal. Therefore, the findings of the learned Sessions Judge that the deceased suffered with homicidal death is well founded and does not call for interference.

The testimony of PW-1 Shivaram shows that he is also residing in the same area where the accused resides, and that the accused was in the habit of consuming alcohol and quarreling with his wife and that the accused was also insisting his wife Vadivukarasi to go for coolie work. It is also in his evidence that on the night of 24.9.2000, the accused was quarreling with his wife. After about 5 to 10 minutes they heard the screaming, then they went and break open the door and noticed Vadivu was on fire and they extinguished it. It is also in his evidence that when he questioned the accused, as to how the fire was caught, the accused told him, it is he, who lit fire on her. On the cross-examination, he has categorically stated that there were 5 to 6 persons outside the house of the accused, they altogether brake open the door and entered inside. He has also admitted that the father of the accused was residing in II cross. Though there is a lengthy cross- examination, nothing much was brought in, so as to discredit the testimony of PW-1.

Coming to the evidence of PW-2 Rukmini, neighbourer establishes the fact, that on 24.9.2000 at about 8PM, the accused was quarreling with his wife. Herself, Shivagami and other neighbourers questioned the accused as to why he is assaulting and making galata. It is in her evidence that the accused took his wife inside the house by saying that " ba nonage maduthene" and after 4 to 5 minutes, they heard screaming from inside the house. Then herself and Shivagami rushed and noticed Smt. Vadivu was under fire and the accused was present, then they put off the fire. It is also in her evidence that the accused told that it is he who set fire on her. Thereafter, the sister of the accused, by name Shivagarai came with others and she was shifted to Victoria hospital.

The cross-examination at paragraph 5 shows that she shouted, when she saw from the window, Vadivukarasi was on fire. She denied the suggestion that she is not residing in Samadhana Nagar and that she is deposing falsely. Though there is a lengthy cross-examination insofar as the fact or PW-2 being present at the place of incident, it remained unshaken.

Coming to the testimony of PW-9 Rani, another neighbourer establishes the fact that there used to be frequent quarrels between the accused and his wife and ill-treating her. The testimony of PW-9 is fully corroborated by the testimony of PWs 1 and 2. Thereby it establishes the fact that though the marriage took place, just three months prior to the incident, the accused was in the habit of consuming liquor and there used to be frequent quarrels for one or the other reason. The said fact is also evidenced from Ex.P2 in which the deceased has made a statement, stating that her husband was thrust of sex and asking her to sleep even without taking food.

The testimony of PW-7 Kuppuswamy, the father of the deceased establishes the fact that the accused was assaulting his daughter and subjecting her to harassment for the sake of money and was also addicted to bad habits. It is also in his evidence that one day at 8.15 p.m., he learnt that his daughter sustained burns, immediately rushed to the spot and came to know she was shifted to Victoria hospital in an autorickshaw. It is in his evidence that the accused was in the accused when he went to see his daughter on the information given to him. He has also stated that Shivagami and Ramesh shifted her to Victoria Hospital for treatment and thereafter the police came and recorded her statement. His evidence shows that he is on� of the witness to the spot mahazar, Ex.P5 under which MOs-1 to 3 were seized.

It is pertinent to note that MO1 is stove shown in this case. In the cross-examination he denied the suggestion he has not stated before the police that he was paying money to the accused on several occasions amounting to Rs. 5,000/-. He denied the suggestion that he has not stated before the police that he has paid Rs. 1,200/- to the accused on the previous occasion.

But the fact remains that the stove was found at the place of incident and it was empty and the police seized the stove. Insofar as his presence of the accused, at the place of incident is not questioned, his evidence shows that the stove was not burst.

Now coming to the testimony of PW-8 Selvi, the mother of the deceased shows that after coming to know the burns sustained by her daughter, she goes to the Victoria hospital by about 9.30 p.m. When she went to Victoria hospital, she met Shivagami and Ramesh and enquired with them and she was informed that it is the accused who lit the fire. In addition to it she also enquired her daughter in the hospital, she told that the accused compelled her to come to bed, for which she refused as a result, he poured kerosene and lit fire. She has categorically stated, that the police recorded the statement of her daughter Vadivukarasi as per Ex.P2. and she attested her signature as per Ex.P2(c).

In the cross examination, she denies the suggestion that due to stove burst her daughter had suffered with burns and that the accused while putting off the fire he sustained burns. She further denied the suggestion that the accused shifted her daughter to the hospital. She further denied the suggestion that the said incident of burn took place while she was cooking food. Apart from that no much importance was elicited. The defence is that the deceased Vadivukarasi Buffered burns on account of the stove burst. In this regard, on a careful examination of the FSL report, Ex.P9, that MO1- stove sent for examination shows the stove was not burst. If really the stove were to be found burst, it would have made into pieces. That was not the case. In this regard, the evidence of PW-4 Chander the witness for spot mahazar Ex.P5 evidence the stove is intact.

The defence has not placed any materials to show that the stove was burst as a result of which the deceased suffered burns. The mere suggestion that the stove was burst does not take the place of proof and therefore, it can safely be said that the defence statement is one of false.

Now the crucial point for consideration is that whether the statement made by the deceased as per Ex.P2 is trustworthy, credible without giving room for any suspicion or not?

In this regard the testimony of PW-10, Sub-inspector of police Sri V.K. Umesh; clearly stated that he received the phone message from the Victoria hospital intimating that one Vadivukarasi admitted to the hospital with burn injuries, himself and his staff went to the Victoria hospital. He approached Dr. Vijaya and after ascertaining the condition of the injured recorded the statement of Vadivukarasi on 24.9.2000 at about 11 p.m, in the presence of the Doctor as well as PW-8 Selvi. In the cross-examination, he has stated that he made an oral request to the Doctor to ascertain whether the injured was in a position to give statement or not. Further stated, except an endorsement made on Ex.P2 there is no other permission, by the Doctor regarding fitness of the injured to give statement. He has also stated that the injured gave statement in Kannada and he recorded the same. In order to discredit the testimony of PW-10, the Sub-Inspector, no much importance is elicited.

Now coming to the testimony of PW-14, Puttaswamy, Police Constable of K.G. Halli police station shows that on 24.9.2000 while he was on duty at K.G. Halli police station at about 10 p.m. and he accompanied the Sub-Inspector to victoria Hospital and enquired with the duty Doctor Vijaya regarding the condition of the injured and to give her opinion as to whether the injured is in a fit condition to give statement or not. He has also stated that Smt. Vadivukarasi was taking treatment for burns. It is also in his evidence that the doctor informed that the injured is in a fit condition to give statement and has stated that the mother of the injured was also present and thereafter the Sub-Inspector inquired with the injured Smt. Vadivukarasi and recorded, the statement as per Ex.P2 as narrated then read over the contents and obtained the signature of the injured, so also obtained the signature of her mother Smt. Selvi to the statement.

Thus, it is clear from the testimony of PW-10 Sub-inspector of police and PW-14 the police constable that the statement of Vadivukarasi was recorded as per Ex.P2 in their presence and PW-3 Dr. Vijaya, by which time the mother of the deceased PW-8 Selvi was also present. On a careful consideration of the statement made by PW-2, evidences the fact that immediately after the accident, she was brought to Victoria hospital and admitted and immediately message was conveyed to the Sub-inspector of K.G. Halli police station, who recorded the statement. It is seen the investigation is so natural and falsely implicating any person, to the commission of the crime does not arise. It is relevant to note immediately after the incident, the accused did not accompany her alleging he had suffered injuries but was not found at the place. It is seen that the accused was arrested on the next day i.e. 25.9.2000 and was produced before the Court on 26.9.2000 which fact was also proved and not disputed, when questioned u/s 313 Cr.P.C. The defence is that the incident of burns took place on account of stove burst but absolutely it is a false theory pleaded as MO1 stove is found to be intact. That apart, the testimony of PW-7 Kuppuraj, the father of the deceased evidences the fact that the accused was very well present at the place and when he questioned the accused, he informed "that he himself set her on fire" which is in the form of extra judicial confession, which points to the guilt of the accused.

The contention of the learned Counsel that the evidence of DW-1 Shivagami was not considered by the trial Court. In this regard, it is relevant to take note of the fact that from the evidence of PW-1 and PW-7, it establishes the fact that it is they along with neighbourers shifted the injured to Victoria hospital. DW-1 Shivagami is none else than the sister of the accused. Therefore, it is quite natural to give her own version to support the accused saying that the incident took place on account of stove burst, which is a false theory.

On a careful consideration of the testimony of prosecution case and also Ex.P2, the statement made by the deceased assumes the character of dying declaration which meets the ingredients of Section 32(1) of the Indian Evidence Act. We do not find any infirmities as such, so as to discard the dying declaration Ex.P2 and the same is trustworthy, credible and can be relied upon. The learned Sessions Judge having taken note of all these facts has rightly convicted the accused for the offence charged and sentenced, which does not call for interference.

For the foregoing reasons, we proceed to pass the following:

ORDER

In the result, the appeal is dismissed by confirming the conviction and sentence passed by the learned Sessions Judge.