Hanumantappa vs The State of Karnataka

S. Sujatha, J.—This appeal is directed against the judgment and sentence passed by the Sessions Judge, (Fast Track) at Haveri in Sessions case No. 51/2007. The appellant was accused for the offences punishable under Section 498A and 302 of the Indian Penal Code, 1860 (hereinafter referred to as ''IPC'' for brevity).

The facts of the case in brief are:

The deceased Bheemavva, wife of the accused was residing with her husband-accused at Tadas village in Shiggaon Taluka in a rented house belonging to C.W. 18 Irappa Bhosle. The deceased Bheemavva was an employee in the B.C. Hostel, Chikkamshi Hosur, Hanagal Taluk, Haveri District, whereas, accused is a physically challenged person not having his right leg and unemployed. It is alleged by the prosecution that the accused used to consume alcohol and suspecting the chastity of his wife, used to abuse her, physically and mentally, thereby subjecting her to cruelty. It is the case of the prosecution that on 28.06.2007 at about 10.30 a.m., the accused having picked up a quarrel with his wife Bheemavva, poured kerosene on her and had set her on fire, as a result of which, deceased sustained burn injuries on her body and she was admitted to KIMS Hospital, Hubli, while under treatment, she succumbed to the burn injures on 02.07.2007 at 7.00 a.m. in the said hospital and thereby accused committed the offences punishable under Sections 498A and 302 IPC.

On 28.06.007 at 5.45 p.m., C.W. 31 S.S. Kerimath, who was the ASI in TADA police Station has recorded oral complaint of Bheemavva as per Ex. P21 and then registered FIR in the police station in Crime No. 49/2007 for the offence punishable under Section 307 IPC and submitted FIR to the Court. Subsequently, after the death of Bheemavva, the said ASI filed an application before the committal Court to add Section 302 of IPC and charge sheet was filed by PW. 18-L. Venugopal, CPI of Shiggaon Circle, against the accused for the offences punishable under Sections 498A and 302 of IPC. After filing of the charge sheet the committal Court committed the case to the Sessions Court, Haveri by its order dated 15.07.2007.

The Sessions Court Haveri after registering the case made over the case to the Fast Track Court, Haveri, for disposal of the case in accordance with law. After confirming the charge sheet, and hearing both the sides, charges were framed and explained to the accused. Accused having not pleaded guilty, the trial was set in motion. The prosecution in order to prove the guilt of the accused examined 19 witnesses P.Ws. 1 to 19 and got marked documents at Exs. P1 to P33 and also got marked the material objects M.O''s. 1 to 5. The statement of the accused as required under Section 313 of Criminal Procedure Code, 1973, (hereinafter referred to as Cr.P.C. for short) has been recorded. The accused in support of his case got himself examined as D.W. 1 and also examined one independent witness as D.W. 2 and also got marked 2 documents at Exs. D1 and D2. The trial Court framed the following points for consideration.

i) Whether the prosecution proves beyond all reasonable doubts that, the accused being the husband of deceased Bheemavva subjected her to mental cruelty by abusing her and by suspecting her chastity and thereby committed an offence punishable U/S. 498-A of the IPC?

ii) Whether the prosecution further proves beyond all reasonable doubts that on 28.06.2007 at 10.30 a.m. the accused poured kerosene on his wife Bheemavva and set fire and subsequently the said Bheemavva died on 02.07.2007 at 7.00 a.m. due to burn injuries while under treatment and thereby accused committed murder of his wife Bheemavva and thereby committed an offence punishable U/S. 302 of IPC?

After considering the evidence, the Court below answered the point No. 1 in the negative and point No. 2 in the affirmative, acquitting the accused for the offence punishable under Section 498A of IPC and convicted the accused for the offence punishable under Section 302 IPC. The accused is sentenced to undergo imprisonment for life and also liable to pay a fine of Rs. 1,000/- for the offence punishable under Section 302 IPC, in default of payment of fine, he has to undergo further imprisonment of three months. Being aggrieved by the said judgment of the Court below, the appellant/accused is in appeal.

The learned counsel appearing for the appellant vehemently contended that the Court below failed in not appreciating the fact that P.W. 1 to 9, 11, 14 and 15, who were the material witnesses have turned hostile and not supported the case of the prosecution. In such circumstances, the Court below ought to have acquitted the accused. It is further contended that there was no direct eye-witness to the incident and no case is established by the prosecution beyond all reasonable doubt to convict the accused, it is only on the basis of so called dying declaration said to have been recorded by the Tahasildar P.W. 17, which is full of inconsistencies the prosecution has set up the case. It is pointed out that the ASI while registering the complaint is stated to have taken the left thumb impression of the deceased, whereas, the Tahasildar P.W. 17 while recording the dying declaration is said to have taken the right thumb impression of the deceased. Such inconsistencies in the statements said to have been recorded by the ASI and the Tahasildar is fatal to the case. It is contended that, when two incredible versions confront the Court, the Court has to give benefit of doubt to the accused and it is not safe to sustain the conviction. Merely placing reliance on the dying declaration, not corroborated by supporting evidence would not call for conviction to impose the severe punishment of life imprisonment, moreover, when the veracity and correctness of the dying declaration is in serious doubt. It is further contended that the accused being physically challenged person having lost his right leg is an innocent, the prosecution in order to bring home the guilt, unnecessarily implicated the appellant as the accused in the case, the Court below without appreciating the fact that the accused along with D.W. 2 was at the Tea Shop near Tadas Bus Stand at the time of alleged incident, convicted the appellant. It is also pointed out by the learned counsel that the deceased having made representations to the Social Welfare Ministry and Social Welfare Officer as Ex. D1 and D2 for a transfer, same being not considered by the authorities, was frustrated and mentally depressed and has committed suicide setting her ablaze. These clinching evidence placed on record by the accused is not considered in right perspective by the Court below. On these material grounds, the learned counsel seeks for allowing the appeal and seeks the acquittal of the accused.

On the contrary, Sri Banakar learned Assistant State Public Prosecutor appearing for the State strenuously opposes the appeal. It is contended that the accused and the deceased were living together. The incidence being in-house murder, except the accused no eye-witness would be available. Though the prosecution has build up the case on the circumstantial evidence, the dying declaration of the victim is sacrosanct and has to be given full evidentiary value. D.W. 10, who treated the deceased on 28.06.2007, when she was admitted to the hospital has recorded the statement of the deceased further fortified by the evidence of P.Ws. 16-duty doctor who was present at the time of recording the dying declaration and P.W. 17-the Tahasildar who recorded the dying declaration. These witnesses had no animosity against the accused to implicate him falsely in a heinous crime punishable under Section 302 of IPC. These witnesses are independent witnesses, which necessarily requires credence. Physical disability of a person that too not having a right leg would not be a reason to attribute innocence to the accused, he is not disabled to pour the kerosene and set ablaze the victim with a match box, the motive, i.e., suspecting the chastity of the wife who was employed in B.C. Hostel, Chikkamshi Hosur, being established by the prosecution coupled with the dying declaration of the victim, the commission of offence by the accused is proved beyond all reasonable doubt. The defence taken by the accused that the victim having tried for transfer, despite her best efforts would not get the required transfer for which, she being traumatized, desperately put herself ablaze is a concocted story built up by the accused to cover himself. Exhibits D1 and D2 said to be the representations given by the victim to the Social Welfare Ministry and the Social Welfare Officer neither possess any acknowledgment of the receiver nor there is any proof of such representations being sent by the victim by post or by person. Moreover, Ex. D1 and D2 representations are in the handwriting of the accused as admitted by him in the cross-examination, the same being not certified by the jail authorities since, the accused is in Judicial Custody and any letters in possession of under trial prisoners are required to be certified by the jail authorities. In such circumstances, no probative value would be given to these documents on which much emphasis is placed on by the learned counsel appearing for the appellant. Even the alleged inconsistency pointed out by the learned counsel for the appellant is not worthy of acceptance as the ASI, registering the complaint with the left thumb impression of the deceased would not invalidate the subsequent recording of the dying declaration by the Tahasildar P.W. 17 with the right thumb impression of the deceased, it is for the reason that the left thumb impression obtained by the ASI on the complaint recorded was not fairly visible due to the burn injuries, noticing the same, to get the clear thumb impression, taking the right thumb impression in the dying declaration would not be characterized as an inconsistency or fatal to the case. This dying declaration is obtained by P.W. 17 after getting the certification from the doctor PW. 16 regarding the fitness of the victim to make her statement. Exs. P30 and P31 demonstrates the certification sought by the Tahasildar regarding the condition of the patient to give the statements and the duty doctor PW. 16 giving the certification regarding the conscious state of the victim to make the statement. In such circumstances, the sequence of events narrated by the prosecution is complete and no gap is found in the chain of circumstances as alleged by the appellant. Though prosecution has based on circumstantial evidence, it is totally proved beyond all reasonable doubt. Accordingly, seeks for dismissal of the appeal confirming the judgment and sentence passed by the Court below.

Having heard the rival submission of the learned counsel appearing for the parties and perusing the records, it is noticed that on 28.06.2007 at about 10.30 a.m. alleged incident has taken place. Though prosecution has examined 19 witnesses, some of the interested witnesses PWs. 1 to 9, 11, 14 and 15 have turned hostile, that itself would not be a reason to acquit the accused on the benefit of doubt, when other independent witnesses mainly, P.Ws. 10, 16 and 17 have supported the case of the prosecution. On the fateful day, when the incident occurred PW. 4 has witnessed the victim coming out of her house shouting for help, would indicate that the burn injuries were homicidal. The categorical statement given by the victim as soon as the patient was shifted to the hospital before P.W. 10, the doctor on duty that the accused has poured the kerosene and set her on fire, which is recorded in the case sheet, Ex. P24 coupled with the statement of P.W. 10, Ex. P25 and further the evidence of P.W. 16 Dr. Ravikumar R. Jadhav who has deposed that on 28.06.2007 the victim was admitted in their hospital for treatment of burn injuries, on that day, Tahasildar, Hubli, who came to record the dying declaration sought for the opinion whether the injured was in a fit condition to make her statement. After examining the injured and noticing that she was in a fit and conscious state to make the statement, he endorsed the same in the case sheet besides endorsing on the requisition letter of the Tahasildar. After getting such opinion from P.W. 16-doctor, P.W. 17-Tahasildar, Hubli has recorded the statement of the victim who was in an able condition to give answers to the questions put by him. The categorical statement recorded is that the husband of the victim, suspecting her chastity poured kerosene on her and set her on fire. In view of these independent witnesses tendering evidence in support of the prosecution, the dying declaration given by the victim necessarily inspires confidence of this Court. There is no inconsistency as contended by the learned counsel for the appellant regarding recording the dying declaration of the victim. The first statement is recorded by PW. 10, on 28.6.2007 at about 1.45 p.m., at the time of admission of the victim to the hospital for treatment, wherein the left thumb impression of the victim was taken. However, later at 8.15 p.m. on the same day, the Tahasildar, Hubli-P.W. 17 has recorded the statement of the injured and taken right thumb impression of the injured. Taking such thumb impressions, one left thumb impression at the time of registering the complaint by the ASI and the right thumb impression at the time of recording the statement by the Tahasildar would no way be characterized as an inconsistency, as left thumb impression obtained by the ASI at the first time is not legible due to the burn injuries, the Tahasildar P.W. 17 has taken the right thumb impression of the deceased that itself would not be fatal to the case.

The further contention of the appellant that the accused being physically disabled is an innocent person was away from the scene of the incident, accused was with D.W. 2 at Tea shop near Tadas bus stand is not worthy of acceptance, as D.W. 2 has stated that they were at the tea shop at about 8.00 to 8.15 a.m. on 28.06.2007. Accused has not stated where he was present at the time of the occurrence of the incident. However, the alleged incident has taken place at about 10.30 a.m. P.W. 4 has tried to extinguish the fire by pouring water on the body of the victim when she rushed out from her house shouting for help further fortified by her dying declaration. Dying declaration is the solemn statement made by the victim at her deathbed, which is serene and to be considered as a truth coming out from the lips of the victim, which necessarily has to be given more credence, unless it is tainted with tutoring or prompting. No discrepancy is found in recording the dying declaration. The voluntarily statement i.e., the dying declaration of the injured has the sanctity. P.Ws. 10, 16 and 17 have no animosity against the accused to implicate any false claim against him. The story of the defence taken by the accused that the victim being depressed for not getting the required transfer committed suicide is not trustworthy in the presence of the dying declaration given by the victim and appears to be unusual. In such circumstances, considering and appreciating the evidence in extenso, the Court below has convicted the accused sentencing him to undergo life imprisonment and imposing a fine of Rs. 1,000/- for the offence punishable under Section 302 of IPC and acquitting under Section 498A, which cannot be found fault with. Accordingly, the appeal lacks merit, stands dismissed.