Nagavva and Others vs The State of Karnataka

Anand Byrareddy, J—Heard the learned counsel for the appellants and the learned Government Pleader Shri K.S. Patil.

The appellants were accused before the Court below in the following circumstances for the offences punishable under Sections 498-A, 504, 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C.'' for brevity). It was the case of the prosecution that Manjula of Chikkanandihalli village was married to one Fakkirappa of Ugarkod village, three years prior to the complaint and was residing along with the accused and her husband. The accused were the mother-in-law and sister-in-law of the deceased Manjula. She had a girl child aged about 1 1/2 years at the time of incident. Mallavva the sister-in-law of Manjula was married and was in her matrimonial home, but since her husband died, she had come back to live with Fakkirappa and her mother and she was living with them for the past eight years prior to the incident. Manjula is said to be the third wife of Fakkirappa. It transpires, that his first wife deserted him and the second wife is said to have eloped and thereafter Fakkirappa had married Manjula. She was happy for about six months. It was alleged that thereafter the accused No. 1 and 2 began to ill-treat her on the ground that she was useless and she was not able to cook and lend a hand in their agricultural operations and were assaulting her and seeking to drive her away to her parents home. She had kept her parents informed of such ill-treatment. It transpires that her grandfather and parents had visited Manjula in her matrimonial home and advised the accused not to ill-treat Manjula, in spite of which harassment did not stop and there were constant quarrels. Though six months prior to the incident they had ensured that Fakkirappa and Manjula lived separately in a room of their house, the harassment had continued.

It transpires, that on 23.9.2008 about 4.00 p.m. Manjula was resting in her home as her husband was away and Nagavva was in the house. It transpires, that Mallavva returned from the Anganawadi, where she was working, on seeing that Manjula was lying down and resting, she is said to have abused her in foul language as; . It transpires, that Nagavva also abused her saying that It transpires that both the accused brought kerosene while Nagavva poured the kerosene on the body of Manjula and as she was trying to get away, Mallavva is said to have lit a matchstick and thrown it on her, as a result of which her clothes had caught fire and very quickly burnt most parts of her body. On hearing her screams, it transpires, that Irayya-PW.3, Dundavva-PW.8 and Rudrappa-PW.9, who were neighbours in the vicinity had rushed and tried to extinguish the fire on seeing that Manjula was ablaze, but by then she is said to have sustained injuries on all parts of her body. PW.8-Dundavva is said to have removed the burnt clothes and tried to cover her body with other clothes, PW.3-Irayya is said to have arranged for a jeep. All of them took her to Kittur Government Hospital. After providing first aid, she was referred to the District Hospital, Belagavi, for better treatment and she was admitted there as an indoor patient and on the basis of a complaint of Manjula-Ex. P.28 alleging the above acts on the part of the accused, the law was set in motion.

The Sub-Inspector of Police of Kittur Police Station, PW.24 is said to have received a phone call regarding admission of injured Manjula in District Hospital, Belagavi and he had immediately rushed to the hospital and sent a requisition to the Tahasildar to record the dying declaration. He had also contacted the Medical Officer and gave him a requisition to certify the condition of the injured Manjula, as to whether she was in a fit condition to make a statement. Accordingly, it is stated that on 24.9.2008, at 1.15 a.m., the police officer had recorded the complaint of injured Manjula, upon which he obtained her thumb impression and also P.28(a), which is certification by the RMO regarding Manjula''s fitness to make a statement. Thereafter he is said to have returned to the police station and on the basis of the complaint had registered a case in Crime No. 224/2008 under the aforesaid provisions of the IPC, at about 3.30 a.m. On the same, day he had conducted a panchanama of the scene of occurrence in the presence of pancha witnesses and he had seized several material objects including a stove. He had recorded statements of the witnesses as to the facts and circumstances. PW.25 one Divakar, PSI on transfer had come to Kittur Police Station and had arrested the accused at Ugarakod with the assistance of his staff members and after completing the arrest formalities they were produced before the Court. On 29.9.2008, after receiving information of the death of Manjula while under treatment, he had submitted a requisition to the Court to include the penal provision for an offence punishable under Section 302 of IPC and after further investigation and on receipt of the charge sheet under Section 173(2) of the of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'' for brevity), the Magistrate, Bailhongal, having taken cognizance of the offence for the alleged offences, registered a case in C.C. No. 809/2008 and on compliance with provision of Section 207 Cr.P.C. in exercise of power under Section 209 Cr.P.C. had committed the case to the Court of Prl. Sessions Judge, Belagavi and on receipt of the records the Prl. District and Sessions Judge, Belagavi, had made over the case to the Fast track Court. On hearing the accused, charges for the commission of offence as aforesaid under several provisions, were framed against the accused. The accused pleaded not guilty and claimed to be tried and thereafter the prosecution had examined 27 witnesses as PWs.1 to 27 and produced documentary evidence Exs. P.1 to P.41 and also 8 material objects.

On the basis of the said evidence the Court below having held that the prosecution had proved its case beyond all reasonable doubt against the accused, convicted the accused and sentenced them to undergo life imprisonment for the offence punishable under Section 302 IPC and to pay a fine of Rs. 10,000/- each and also sentenced them to undergo Simple Imprisonment for one year each for the offence punishable under Section 498-A IPC and also to pay a fine of Rs. 2,500/- each and further Simple Imprisonment of six months each for the offence punishable under Section 504 IPC, all the sentences of Simple Imprisonment were to run concurrently and the sentence of imprisonment already undergone by the accused was to be set of under Section 428 of Cr.P.C. It is that judgment which is under challenge in the present appeal.

The learned counsel for the appellant while taking this Court through the record at length would seek to highlight several inconsistencies, which according to him did not justify the Court below in having arrived at a finding of guilt and the Court below could not have held that the prosecution had proved its case beyond all reasonable doubt. In this regard the learned counsel would firstly emphasize that the prosecution witnesses PWs.1 to 10 and 14 to 19 were parents of the deceased, relatives and people from the neighbourhood. All of them had turned hostile. Therefore, of all the witnesses, 16 witnesses having turned hostile, there was hardly any independent witness who could have spoken to the incident and therefore the trial Court having held that the prosecution had proved its case beyond all reasonable doubt, it is only basis of the so called dying declaration. He would point out the particulars of dying declaration and the manner in which it was recorded. It is evident that there are several inconsistencies which would give rise to suspicion as to the dying declaration having been actually recorded in the manner that it is said to be made out. It is pointed out that the Tahasildar is said to have received a requisition to record the dying declaration by the Investigating Officer and according to the Tahasildar, he had arrived at the hospital in order to record the dying declaration, at 11.20 p.m. as stated in the examination-in-chief. However in the cross-examination he claims to have arrived at the hospital at 12.45 a.m. However the dying declaration is shown to have been recorded commencing at 12.40 a.m. and therefore, there is straight away an inconsistency as to the actual time at which the Tahasildar arrived at the hospital and the fact that the dying declaration commenced from 12.40 a.m., when he was there only at 12.45 a.m. has not been sufficiently explained or otherwise clarified.

It is further pointed out that there is a clarification made by the RMO-PW.22 who has made that certification much prior to the commencement of recording of the dying declaration. Further the said PW.22 has admitted that he was never present during recording of the dying declaration. Therefore it is evident that the certification was not issued in the presence of the Tahasildar and it was made much prior to his very arrival at the hospital. It is clear that there was no meeting of minds between the concerned medical practitioner and the Tahasildar who has recorded the dying declaration. The dying declaration also is in the question answer form and is said to have been attested with the thumb impression of Manjula. When the evidence on record would indicate that she had suffered from 65-70% burn injuries and most of her body including her fingers and thumb were burnt, it is unclear that how the thumb impression was obtained, whether it was the impression of the toe as is the practice that the police in cases where the thumb impression is not capable of being taken, there is no clarity in this regard and hence the learned counsel would submit that the very veracity and correctness of the dying declaration is in serious doubt. It has been provided only to bring home the charges against the accused and not a document which has come to light in the normal course.

It is also contended that the complaint which is drafted on the basis of the statements said to have been made by Manjula at her instance, the dying declaration was being recorded, is another curiosity. It was impossible for the dying declaration and the complaint to be recorded at the same time and it is on record that Manjula was not in a position to speak immediately after the incident and the complaint running into 2 1/2 pages on foolscap paper would indicate that it is preposterous for the victim who was suffering from severe burn injuries to be able to dictate such a complaint at length and the coincidence of the recording of the dying declaration as well as the complaint is hence not acceptable and could not be believed.

In this fashion the learned counsel would also seek to point out other discrepancies. It is also pointed out that the medical practitioner who had provided immediate treatment to Manjula on her admission into the hospital had recorded that the victim had suffered serious burn injuries and that she was in a state of shock and unable to speak. Therefore, the subsequent events as sought to be made out by the prosecution, the manner in which the incident had taken place and the conduct of the accused is not readily acceptable and cannot be believed. It is also pointed out that there are more than one witness who has said that the burn injuries suffered by Manjula was on account of the burst of a stove, when she was preparing tea and the fact that she has suffered most burn injuries on her face and the front side of her body would indicate that she has taken the blast of the bursting stove on her frontal portion and hence the accusation that the kerosene was poured on her when she was lying on the floor, by Mallavva, and that Nagavva had thrown a lit matchstick at her, resulting in her catching fire is not readily believable. Further that the medical practitioner has also said in the course of his evidence that there was no sign of kerosene being used to set her on fire. It is also pointed out that insofar as the complaint said to have been recorded at the instance of the deceased Manjula it is stated that her toe impression has been taken, whereas in the dying declaration it is the thumb impression. There is no explanation forth coming as to this inconsistency. It is also pointed out that the doctor who had certified as to the fitness of Manjula to narrate her complaint is not forthcoming and it is also of some concern that no time has been mentioned on the complaint.

It is further stated that in the face of such inconsistencies the Court below having placed reliance on the dying declaration and holding that it could not be brushed aside and it should be given credence. In this regard the learned counsel for the appellant places reliance on the following decisions.

"(i) P. Mani Vs. State of Tamil Nadu, AIR 2006 SC 1319 : (2006) CriLJ 1629 : (2006) 3 CTC 193 : (2006) 1 DMC 471 : (2006) 2 JT 607 : (2006) 2 SCALE 482 : (2006) 3 SCC 161 : (2006) AIRSCW 1053 : (2006) 2 Supreme 415 ;

(ii) Prem Kumar Gulati Vs. State of Haryana, (2014) AIRSCW 5831 "

to contend that the conviction cannot rest on such a doubtful dying declaration and seeks the acquittal of the accused. He would further submit that the allegations against the accused by the deceased do not hold water. Accused No. 1 is said to be aged 71 years old as on date and Mallavva-A.2 is 41 years, whereas insofar as accused No. 1 who is in old age would result in grave injustice and the evidence against them is of a doubtful nature as aforesaid. On these grounds the learned counsel would seek acquittal of the accused and that the accused have already spent seven years in judicial custody. Hence given the doubtful circumstances as are projected hereinabove, it is appropriate that the judgment of the Court below is set aside and the accused are acquitted.

The learned Government Pleader, on the other hand, seeks to justify the judgment of the Court below and would point out that the so called inconsistencies and the infirmities sought to be highlighted by the learned counsel for the appellants cannot be said to be fatal to the case of the prosecution. The several witnesses having turned hostile also does not provide any mileage to the case of the appellants that the prosecution has failed to prove its case beyond all reasonable doubt. The dying declaration by itself is a document, which would have to be accepted on the face of it. The certification by a medical practitioner and recording of the dying declaration by the Tahasildar are by two independent persons who do not have any motive or other agenda in seeking to make out a case against the accused. These are dispassionate persons who have acted in the course of their duty. They have recorded the dying declaration. The Tahasildar recorded the dying declaration on a certificate issued by PW.22 as to the fitness of Manjula to make her statement. The difference in time as pointed out by the learned counsel for the appellants can be attributed to human error.

It is not in dispute that the Tahasildar did record the dying declaration in the presence of his staff and the thumb impression of the deceased Manjula has been obtained. The mere statement of the medical practitioner that she had suffered burn injuries to the extent of 65-70% and that her fingers were also burnt did not conclusively establish that her thumb was also burnt rendering it incapable for Manjula to put her thumb impression on the dying declaration. In the face of such a thumb impression made on the dying declaration, it ought to be given due credence. The further inconsistency in the complaint having been recorded at the same time, as the dying declaration is concerned, it is clear that the compliant was recorded at 1.15 a.m. when the recording of the dying declaration was complete and therefore it is not coincident, it is not recorded at the same time and coincidentally as sought to be suggested by the learned counsel for the appellant. The police officer on the statements made by Manjula has registered the complaint at 3.30 a.m., in the police station on the basis of oral statements made by her and the fact that the toe impression has been taken instead of thumb impression. The learned Government Pleader would submit that indeed there is a toe impression taken on the complaint said to have been registered, however, this was an aspect which was never raised in the cross-examination. Though the learned Government Pleader would submit it is indeed true that the complaint indicates that toe impression has been taken on the complaint, whereas in the examination-in-chief the concerned witness PW.24 has indicated that it was her thumb impression that is found on the complaint. The veracity of the witness was not tested on this aspect before the trial Court and it is raised for the first time in the present appeal and therefore it would not be available for the appellants to throw suspicion when the witness was not tested in cross-examination as regards the said discrepancy.

The learned High Court Government Pleader would therefore venture to say that the Police Officer by way of abundant caution also obtained the toe impression of the deceased in view of the circumstances that the thumb might have been partially burnt and the thumb impression may not be clear as was necessary and therefore would submit that in the circumstances it cannot be called upon to hazard a guess as regards the said inconsistency when the appellants had not chosen to cross examine the witness on this aspect of the matter to throw light or explain or elicit an explanation from the concerned witness and therefore would submit that the appellants cannot rest on the said inconsistencies in canvassing that the prosecution has not made out a case insofar as dying declaration is concerned. He would further submit that there are a line of cases decided by the Apex Court to the effect that sanctity attached to the dying declaration when it comes from the mouth of the victim and its reliability cannot be doubted and he would submit that the cases cited by the learned counsel for the appellants are based on the facts of those cases and cannot be automatically applied to the present case on hand, when otherwise the circumstances would indicate that the deceased had not only stated in her dying declaration as to the manner in which the acts were committed by the accused, but it was also complained wherein it is consistently stated that it was the accused who was set her on fire and caused the injuries, which ultimately resulted in her death and therefore the learned Government Pleader would seek that the judgment of the Court below be affirmed.

In the light of the above contentions and from a perusal of the record it is evident that most of the witnesses for the prosecution have turned hostile and the entire basis of the conviction of the accused is with reference to the dying declaration. It is no doubt true that though conviction can be recorded on the basis of the dying declaration alone, the Supreme Court has stated in the case of P. Mani v. State of Tamil Nadu, the same should be wholly reliable in order to record a conviction on the basis of the said dying declaration and it is only if such a dying declaration does not reveal the entire truth, it can only be considered as a piece of evidence in which conviction cannot only on the basis of such dying declaration. Therefore in the present case on hand we are required to examine whether the dying declaration could be accepted as revealing the entire truth and whether the same could be the basis for conviction as held by the trial Court. The entire case on the part of the learned counsel for the appellants that the victim Manjula was so seriously burnt that she was not capable of speaking and hence the very fact of any dying declaration being recorded being doubtful cannot be readily accepted. The burn injuries were to the extent of 65-70% and immediately on her admission to the hospital the fact that she may have been in a state of shock and was suffering severe pain on account of burn injuries cannot be ruled out. But this does not lead to a presumption that she continued to be in that state when the dying declaration was actually recorded. The medical practitioner having certified that the deceased Manjula was capable of making a statement as recorded by him at 12.40 a.m. and thereafter the Tahasildar having proceeded to commence recording of dying declaration at 12.45 a.m., though it is also sought to be canvassed that there is serious discrepancy in the time at which the Tahasildar arrived at hospital and commencement of recording took place. This could be attributed to an inadvertent error in recording the time. As the Tahasildar was a responsible officer of the State and could not be accepted to make a false statement of recording the dying declaration when Manjula expired much after her admission to hospital. She was in hospital for total period of five days before she passed away and the Tahasildar having recorded the dying declaration is in the question answer form and duly attested by him would have to be accepted as not being tainted with any tampering or any other motive on the part of the Tahasildar in recording such dying declaration.

Further, the discrepancy sought to be pointed out with reference to the complaint also having been recorded at the same time by the Investigating Officer is not entirely correct. According to PW.24 the Investigating Officer, he has recorded the statement of the deceased commencing at 1.15 a.m., after the completion of recording of the dying declaration and it is that complaint which is reduced to writing at the police station at 3.30 a.m. Therefore the contention that the complaint having recorded coincidental with the dying declaration and the Investigating Officer not having stated the time at which the complaint was actually lodged or recorded is not correct. There is material on record to indicate as to the manner in which the complaint has been recorded.

The other discrepancy as to the dying declaration bearing thumb impression of deceased Manjula and the complaint bearing her toe impression is a curiosity in the present case. However there is no attempt on the part of the defence to test the evidence of the Investigating Officer in the course of cross-examination on this aspect of the matter. Except pointing out in the examination-in-chief, the said witness has stated that he had obtained the left thumb impression of the deceased and in the course of cross-examination he admitted that the complaint itself records that the toe impression has been taken at the foot of the complaint. But nothing has been made of this by further examining the witness and eliciting an explanation as to how and why the toe impression was taken, when the thumb impression was taken on the dying declaration. Since the accused have not taken this aspect of the matter forward, it is as rightly pointed out by the learned Government Pleader there can only be guess work as to how this inconsistency has come about. This circumstance will not water down or efface the dying declaration.

The other contentions that there was a stove burst and that Manjula had suffered burn injuries on account of the stove burst and it was not by virtue of any unlawful acts on the part of the accused is only a contention taken in defence. Since the witnesses who have stated that there was a stove burst have been treated as hostile witnesses and therefore their evidence cannot be of much relevance insofar as the prosecution is concerned. Even if there was a stove burst, the nature of the stove and that it was capable of bursting was required to be established. It is not even clear as to what kind of stove was marked as a material object and that it had burst and there was evidence of pouring kerosene is not forthcoming and hence not readily acceptable that injuries were caused on account of the incident as sought to be claimed and the contention that only the frontal portion of Manjula''s body had suffered burn injuries is also not entirely correct. It is stated that even her back had suffered burn injuries and therefore the statements and the dying declaration as to the manner in which the injuries had been caused would have to be given credence.

Insofar as the decisions referred to and relied upon by the learned counsel for the appellant in the first of these cases namely in the case of P. Mani Vs. State of Tamil Nadu, AIR 2006 SC 1319 : (2006) CriLJ 1629 : (2006) 3 CTC 193 : (2006) 1 DMC 471 : (2006) 2 JT 607 : (2006) 2 SCALE 482 : (2006) 3 SCC 161 : (2006) AIRSCW 1053 : (2006) 2 Supreme 415 is concerned, it is noticed that the appellant was convicted on a charge of commission of an offence punishable under Section 302 IPC on the allegation of having committed murder of his wife. On facts it is noticed that the wife of the appellant therein was at home and there were children watching TV when she had asked all the children to go out of the house, she had bolted the door from the inside and set herself on fire and this being informed, the appellant along with other witnesses rushed to the place and broke open the door and carried the deceased to the hospital. It is on noticing this sequence of events that the Supreme Court has held that the dying declaration of the deceased in such circumstances would not be readily accepted and that if evidence was brought on record to suggest with such dying declaration does not reveal the entire truth. It may be considered only as a piece of evidence, in which event it cannot be basis for conviction. Therefore the same does not advance the case of the appellants insofar as the case on hand is concerned.

In Prem Kumar Gulati Vs. State of Haryana, (2014) AIRSCW 5831 , the Supreme Court after observing that the dying declaration involved in that particular case not being in question answer form, the sanctity attached to a dying declaration could not be discarded, merely because it is not in the question answer form and that sanctity attached to the dying declaration as it comes from the mouth of a dying person cannot be brushed aside. But however, insofar as the accused-appellants in that case are concerned, the Court found that they were not charge sheeted in the first instance and their overtact in the commission of the alleged offence was only brought out at the stage of Section 309 of Cr.P.C. and except the dying declaration there was nothing on record to strongly suggest that they were involved in the commission of crime and it was in the findings of the Sessions Court which suggests that the accused participated in the commission of the crime and this has been noticed by the High Court as well and therefore the dying declaration was closely examined by the Apex Court in coming to a conclusion that it could not form the basis for conviction insofar as the appellant-accused are concerned. Hence even the said decision would not assist the appellants.

The further contention that the appellant No. 1 is in into old age or that the appellant No. 2 was a woman and therefore requires to be viewed with compassion and having regard to the doubtful nature of the evidence that is sought to be relied upon, namely the dying declaration, they should be given the benefit of doubt is also not acceptable. The dying declaration, notwithstanding the alleged inconsistencies as sought to be canvassed, is to be given due sanctity and we are of the opinion that the trial Court was justified in accepting the same and the same forming the basis of conviction. The punishment imposed on the accused is justified. Consequently the appeal is dismissed. The conviction by the trial Court is affirmed.