Gundappa vs The State of Karnataka

K.N. Phaneendra, J.—1. The appellant is accused No. 1 in S.C. No. 244/2009. He was convicted for the offences under sections 498-A and 306 of IPC. The judgment of conviction passed on 21st July 2010 wherein he was sentenced to undergo Rigorous imprisonment for three years for each of the offences under sections 498-A and 306 of IPC and also pay fine of Rs. 5,000/-. The learned Session Judge in fact acquitted accused Nos. 2 to 4 for the said offences.

I have heard the arguments of learned counsel for the appellant Sri Mahantesh Desai and the High Court Government Pleader for Respondent. The High Court Government Pleader submitted that no appeal has been preferred against the judgment of acquittal passed against the accused Nos. 2 to 4.

Before adverting to the question involved in this case it is just and necessary to bear in mind the brief factual matrix of the case. A lady by name Vimalabai W/o. appellant while in the hospital lodged complaint as per Ex. P-11 stating that she was given in marriage to the accused No. 1 (appellant herein) about 14 years prior to the incident. They lived happily together for some time. The accused has been ill-treated and harassing her on the ground that she was not loyal to him and always suspecting her fidelity. It is also alleged that he was addicted to alcohol and used to come to house everyday fully drunk and assault her and ill-treat her for that reason. In this background it is alleged that on 10.08.2008 the accused came to the house fully drunk in the night and started quarrelling with the deceased and abused her with filthy language. Therefore, she was frustrated due to such scolding and illtreatment by her husband, the complainant went inside a room and poured kerosene on herself and lit fire. She was admitted to the hospital. Later she succumbed to the injuries on 12.08.2008 i.e., on the next day of the complaint. On such first information report, the police have conducted the investigation and laid a charge sheet against 04 accused for the above said offences. The Court secured the presence of the accused and framed charges for the offences under sections 498-A and 306 R/w. S. 34 of IPC. The accused have pleaded not guilty, as such the Court proceeded with the trial. In all the prosecution has examined 16 witnesses and got marked 28 documents as Ex. P-1 to P-28 and 02 material objects as MO 1 and 2. The accused were examined under section 313 of Cr.P.C. As the accused did not chose to lead any evidence on their side, the Trial Court has disposed of the case after hearing the parties and passed the judgment of conviction and sentence against the appellant as noted supra.

Learned counsel for the appellant has rightly submitted that all the witnesses have turned hostile to the prosecution including the punch witnesses to the spot mahazar and inquest. None of the witnesses have supported the case of the prosecution to connect the accused to the crime alleged. There is no dispute that the deceased died a suicidal death. The evidence of PW 1 to 3 the doctors examined before the Court have categorically stated that both of them have conducted autopsy on the dead body of deceased Vimalabai on 12.08.2008 and they found superficial burns all over the body except genitals and gluteal region. They gave opinion that the death was due to hypovoluminic shock as a result of 95% superficial burns. It is also not in dispute by the accused persons with regard to the suicidal death of the deceased. However, the contention of the appellant is that he is not responsible for the suicide committed by his wife and he never abated by any of his conduct the commission of the suicide by the deceased. Therefore, there is no ambiguity in holding that the prosecution has established the suicidal death of the deceased Vimalabai.

PW 2 is the Investigating Officer who has filed charge-sheet in this case. PW 4 and 5 are the punch witnesses to the spot mahazar Ex. P-2 which was conducted in the house of the accused wherein the police have seized MOs 1 and 2 under Ex. P-2. PWs 6, 10 and 13 are the witnesses to inquest mahazar Ex. P-3 though these persons have turned hostile. The Investigating Officer has categorically stated with regard to the conducting of the inquest, coupled with the evidence of PW 11 Tahasildar who has also stated that he has conducted inquest on the dead body of the deceased. The accused has also not disputed with regard to inquest conducted by the investigating agency. PW 7 is the distant relative of the deceased. PWs 8 and 14 are the full blood brothers of the deceased. PW 12 is the daughter of the deceased. PWs 15 and 16 are the father and mother of the deceased who were examined before the Court in order to establish the ill-treatment and harassment being given by the accused persons to the deceased, but for the reasons best known to them, they also turned totally hostile to the prosecution case. There is absolutely any iota of evidence to implicate the accused persons into the crime as alleged by the prosecution. PW 9 is the lady ASI who recorded the statement of deceased in the hospital as per Ex. P-11.

Absolutely, there is no iota of oral evidence by the relatives of the deceased to convict the accused persons for the offences under Sections 498-A and 306 of IPC. But the prosecution has only placed reliance on Ex. P11 the statement of the deceased (FIR) which is later considered as dying declaration after the death of the deceased and the evidence of P.W. 9.

The Court is left with no materials except dying declaration Ex. P. 11. Though the Trial Court has acquitted accused Nos. 2 to 4 for the offence punishable under Section 306 of IPC but placing strong reliance on Ex. P. 11 and also the evidence of P.W. 9, relying upon various rulings to the principles that even dying declaration can be solely made basis for the purpose of convicting the accused and on that basis convicted the appellant. There is no dispute so far as such principle is concerned. However, the Court should bear in mind that the quality of evidence lead by the prosecution, the credibility of the statement of the witnesses and the dying declaration has to be tested by all surrounding circumstances before placing reliance upon the sole material of dying declaration on record. In the opinion of this Court the dying declaration must be of a sterling quality in order to rely upon such material when particularly kith and kin of the deceased have not supported the case of prosecution. As could be seen from the examination of the close relatives of the deceased, the prosecution never made any attempts even to elicit as to why these witnesses have turned hostile. On the other hand, the witnesses have given alternative cause for death of the deceased one of the witness P.W. 8 brother of the deceased has stated that the deceased was suffering from mental illness. P.W. 14 another brother of the deceased has also stated that she was suffering from stomach pain and also fever, therefore, she has committed suicide. P.W. 5 father of the deceased also sated that she was suffering from stomach pain and headache due that reason she has committed suicide. When particularly these witnesses are close relatives who are the last persons to screen the real offender however they have deposed before the Court virtually in favour of the accused. As I said nothing has been elicited so far as these improvements made by these witnesses during the course of their examination-in-chief. In this background, the Court has to analyze the dying declaration and the evidence of P.W. 9.

Ex. P. 11 is the document which is styled to be dying declaration. It is seen that the said Vimalabai was admitted to the hospital on 10.08.2008 in the late night hours. In the morning on 11.08.2008 at 11:50 a.m., onwards her statement was recorded by P.W. 9 and at 12:50 p.m. a case was registered in Crime No. 55/2008. There is no material elicited from the Investigating Officer that exactly at what time the deceased was admitted to the hospital, as to what was her status at the time of admitting the injured to the hospital and throughout what was her status till her death is not forthcoming by means of any medical evidence. It is also a fact that the prosecution has not made any effort to examine the doctor who treated the deceased, and who gave the certificate on Ex. P. 11. On the other hand, post mortem examination report coupled with the evidence of P.Ws. 1 and 3 discloses that she suffered 95% superficial burn injuries all over the body. There is no evidence whether the person who sustained superficial burn injuries to the extent of 95% could be able to give any statement as such. To that extent, there is no medical evidence available before the Court. In this background, the Court has to examine whether Ex. P11 is a probable statement made by the deceased. Though Ex. P11 contains endorsement of the doctor stating that patient was conscious and was able to give statement at 11.50 a.m., on 11.08.2008 and the statement taken before the doctor, but this portion of Ex. P-11 has not been proved by examining the doctor, by marking this portion in Ex. P11 though Ex. P11(a) is marked which is thumb impression of Vimalabai. Even the said doctor has not been cited as a witness on the prosecution side. In this background, evidence of P.W. 9 plays a dominant role to ascertain as to whether evidence of P.W. 9 can be accepted and relied upon to draw an inference that prosecution has proved the case beyond all reasonable doubt.

P.W. 9-Smt. Kalavati, who was working as ASI of Mahila Police Station, Gulbarga has stated that on 11.08.2008 she received MLC from Basaveshwar Hospital and she visited the hospital and has taken permission of the doctor and recorded the statement of injured-Vimalabai. It is stated that she was in talking status. PW 9 has identified thumb impression in Ex. P11 as per Ex. P11(a). Except these words nothing has been stated about the mental and physical status of the injured, as to how much injuries she sustained, whether any sedatives were administered to the injured and as to how she was behaving and whether she was suffering from any pain etc.

In the course of cross-examination so far as this aspect is concerned, it is stated that on 11.08.2008 she received information at 11.50 a.m. and within ten minutes she reached the hospital and she is very specific that she started recording statement of the injured from 12:00 in the afternoon up to 12.50 p.m. It is specifically stated that after recording the statement, the doctor has given endorsement at Ex. P11. It is also stated that before taking the statement she has taken permission of the doctor but this particular aspect is not supported by the evidence of doctor before the Court whether the doctor was throughout present while recording the statement of the deceased. As per Ex. P11 itself as rightly pointed out by the learned counsel for the appellant statement of the victim was recorded from 11.50 a.m., onwards. According to P.W. 9, she was not at all present in the hospital at 11.50 a.m., though it is a minor discrepancy but nevertheless when the Court is solely relying upon such dying declaration, dying declaration should be subjected to very stringent and strict scrutiny. Looking to the above circumstances, evidence of P.W. 9 compared to the evidence of other witnesses it cannot be easily brushed aside that though she was admitted to the hospital earlier, why the doctor has not recorded the statement of the victim and no material is placed on what history the injured has given, when she was admitted to the hospital and who admitted her to the hospital etc. In my opinion, all these surrounding circumstances create suspicion with regard to recording of the statement of the injured by P.W. 9.

Though I have already observed that the dying declaration alone is sufficient to draw inference against the accused but the Court should be very slow in accepting the dying declaration when other alternative causes are shown by the prosecution itself with regard to the death of deceased. The circumstances show that the wife was frustrated against husband even before the incident being taken place on the ground that, her husband has been suspecting her fidelity and also he used to come to the house in a drunken state and used to abuse her. If that being so, atleast P.W. 12 daughter could have been the best witness who would have spoken as to what was transpiring between her mother and father in the house, such evidence is totally absent why actually on that particular day deceased was frustrated to commit suicide is also suspicious circumstance. When the other circumstances placed before the Court also suggests that she was suffering from stomach pain and headache and she was also suffering from mental illness which has been spoken to by the close relatives of the deceased which is also substantial evidence available on record, which cannot be simply brushed aside. When such being the case, in my opinion, though an attempt has been made by the prosecution to prove the dying declaration but it cannot be said that it has proved the dying declaration beyond all reasonable doubt.

Of-course, contents of Ex. P-11 discloses that on that particular day on 10.08.2008 the appellant came to the house in a drunken state of affairs and abused his wife in filthy language particularly with reference to her fidelity and being frustrated, she poured kerosene on herself and lit fire and thereafter, she was admitted to the hospital etc. The facts in Ex. P-11 are also insufficient to draw any conclusive inference as to the intention of the accused to abet the commission of suicide by the deceased. Ex. P-11 discloses it is the regular habit of the accused to come to the house and abuse her, what made her to commit suicide on that day is also doubtful. Unless it is unequivocally shown to the Court that the accused intentionally aided the deceased to commit suicide, it may not be proper to convict the accused.

Under the above circumstances, the judgment of conviction recorded by the Trial Court is not proper and correct. When two alternative views are available on the basis of the materials on record, the view which is in favour of the accused ought to have been preferred by the Trial Court. Before convicting the accused, the Court should come to the conclusion that complicity of the accused is the only view that can be taken by the Court, then only the accused can be convicted, otherwise, the benefit of doubt which is reasonable and which is sufficient to shake the case of the prosecution then such doubt should not be simply ignored and the benefit should be given in favour of the accused.

In view of the above discussion, I am of the opinion that the appellant is entitled to be acquitted. Hence, I proceed to pass the following:

ORDER

The appeal is allowed. The judgment of conviction and sentence passed by the I-Addl. Sessions Judge, Gulbarga in S.C. No. 244/2009 dated 21.07.2010 is hereby set aside.

Appellant/accused is acquitted for the charges levelled against him under Sections 498-A and 306 of IPC.

The bail bonds executed by the appellant/accused and the bonds executed by the surety are hereby cancelled. If any fine amount is deposited by the accused the same is hereby ordered to be refunded.