Rajshekhar vs The State of Karnataka

Budihal R.B., J.—This is a petition filed by the petitioner/accused under Section 439 of the Code of Criminal Procedure seeking his release on bail of the alleged offences punishable under Sections 498A, 504 and 307 of the Indian Penal Code registered in the respondent Police Station Crime No. 237/2014. After the death of the deceased the offence under Section 302 of IPC was registered as per the requisition of the police.

The brief facts of prosecution''s case, as per the averments in the complaint, are that on 12.12.2014 one smt. Netravati Rajshekhar Rabbanni wife of the petitioner herein, filed a complaint before the Garag Police, at KLE Hospital, Belagavi, alleging among other things that, her maternal place is Basavana Kuduchi of Belagavi District, that 1 1/2 years ago she got married to the petitioner herein who is working as M.T. Driver in Indian Army at Jammu and Kashmir. It is further alleged that whenever he was coming on leave he was abusing her assaulting her and even suspecting her character. It is further alleged that 15 days earlier to filing of this complaint, the petitioner came on leave. A day earlier to filing of this complaint, at about 10.30 p.m. when she was in the kitchen, he abused her and threatened her and poured kerosene on her person and lit fire. As a result she suffered burn injuries on her person. Immediately she was taken to the hospital and subsequently, on 16.12.2014 she succumbed to the injuries. It is also the case of the prosecution that in the meanwhile, she also gave a dying declaration before the Taluka Executive Magistrate.

Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned Additional SPP for the respondent-State.

Learned counsel for the petitioner, during the course of his arguments, made the submission that though it is the case of the prosecution that the deceased gave the dying declaration, but looking to the contents of dying declaration, there is no certification by the doctor regarding the mental condition of the deceased that she was capable to give the dying declaration. The learned counsel submitted that as per the materials placed on record, even according to the prosecution''s case, deceased sustained 80-85% burn injuries and therefore, in view of this factual matrix, it raises a doubt as to whether really she was capable of giving the statement before the Taluk Executive Magistrate. The learned counsel further made the submission that though the prosecution relied upon the statements of in-laws of the deceased said to have been recorded by the investigating officer during the investigation, looking to the contents of the statements of in-laws and the alleged dying declaration of the deceased, there is no consistency and again it raises a pinch of doubt in the mind, whether the dying declaration has been given by the deceased. He also made the submission that even the accused person also sustained injuries to both his hands when he went to the rescue of the deceased and then he accompanied the deceased while she was taken to the hospital. Hence, he submitted that if, really, he set her ablaze what was the reason for him to go for her rescue. He further submitted that the petitioner is the sole bread-earner of the family having old aged father and now the investigation of the case is already completed, by imposing reasonable conditions, petitioner may be enlarged on bail.

Per contra, the learned Additional State Public Prosecutor, during the course of his arguments, made the submission that apart from the statement of the deceased, in this case, she has also given the dying declaration before the Taluka Executive Magistrate wherein she has clearly narrated about the petitioner that he is used to give ill-treatment both physically and mentally and he was suspecting her fidelity. He also submitted that on the night of the incident, when the deceased had been to kitchen to boil the milk the petitioner came there, abused her in filthy language and poured kerosene on her body and lit fire to her. Hence, he submitted that when there is material placed by the prosecution by way of dying declaration as well as the statements of the in-laws of the deceased and other witnesses, the petitioner is not entitled to be granted with bail. Hence, he submitted to reject the petition.

I have perused the grounds urged in the bail petition, documents produced by the learned counsel for the petitioner along with the petition and also considered the submission made by both the sides at the Bar.

Looking to the materials placed on record in this case, the complaint was registered on 12.12.2014 on the basis of the said complaint, the case has been registered by the concerned police on 13.12.2014 at 0015 hours in Crime No. 237/2014 for the offences under Section 307, 498A and 504 of IPC. Perusing the statement, which is in the form of the complaint, it is mentioned by the deceased that since from the date of the marriage the petitioner was suspecting her fidelity, he used to abuse her in filthy language, he was assaulting her whenever he used to come on leave, he was asking the deceased as to with whom she was sleeping in his absence and he was insisting her if she did not tell, he will not leave her and in this way he was giving ill-treatment both physically and mentally. On 11.12.2014 during night when she had been to the kitchen her husband came and abused her in filthy language and then he picked up quarrel with her stating that he will not leave her, he poured kerosene on her body and set her ablaze. Then she screamed loudly as she was caught fire and thereafter she did not know what had happened. She was taken to KLE hospital and admitted in ICU. The said statement bears the LTM of the complainant. The dying declaration is also recorded by the Taluka Executive Magistrate on 12.12.2014. To the question at Sl. No. 6, she answered that on 11.12.2014 at 10.30 p.m. when she had been to kitchen to boil the milk, her husband came there, abused her, picked up quarrel with her and he poured kerosene which was in the kitchen, on her body and then he lit fire to her. This was recorded in between 8.00 p.m. to 8.30 p.m. on 12.12.2014. I have perused the dying declaration. On the top of the said dying declaration, the doctor has endorsed that the patient Netravati Rajshekhar, aged 22 years, is in a fit condition to give her dying declaration and below that the doctor has put his signature. I have also perused the post-mortem report. The doctor, who conducted autopsy on the dead body, has mentioned that the death is due to septicemia as a result of 80-85% superficial to deep thermal injuries sustained.

The contention of the learned counsel for the petitioner that the dying declaration is not having the certification of the doctor about the fitness of the lady to give the dying declaration. But, looking to the dying declaration, the certification is already there and that apart the certification of the doctor is a ''rule of caution'' and it cannot be a ''mandate of law''. The question is whether the statement of the person who has given the dying declaration is to be believed or not. It will be done during the course of the trial. Perusing the material it will go to show that the statements of in-laws are recorded by the investigating officer, they have also stated in consonance with the contents of the complaint and dying declaration. No parents will give a statement for false implication of their son. At this stage, the Court has to consider whether, on the basis of the material produced by the prosecution collected during the investigation, a prima face case of involvement of the petitioner in committing the offence, is established or not. While dealing with bail petition, the Court is not supposed to conduct mini trial as to say whether the averments of the complaint and the statement given by the witnesses are true or false. It is only at the stage of conducting the trial and it is for the trial court to come to the conclusion after a full-fledged trial. Looking to the material on record, prima facie they go show involvement of the present petitioner in the alleged offence. It is no doubt true, as submitted by the learned counsel appearing for the petitioner, that even the petitioner also sustained injuries for which he was getting treatment and even in the prison also he continued the treatment. But only on that basis, at this stage, when there is other material placed on record and so also the dying declaration of the lady stating the involvement of the present petitioner that he poured kerosene and lit fire on her, the entire case of the prosecution cannot be disbelieved because of the injuries said to have been sustained by the petitioner. The offence alleged under Section 302 of IPC and the manner in which it is said to have been executed by the present petitioner, who is said to be serving in military, I am of the opinion that it is not fit case to exercise the discretion by this Court.

Accordingly, the petition is hereby rejected. However, the observations made in the body of this order are only for the purpose of disposal of this bail petition and the Trial court shall not be influenced by the said observation while conducting trial and disposing of the matter on merits.

As the learned counsel made the submission that since from the date of his arrest, the petitioner/accused is in custody nearly for a period of 10 months and as the petitioner is serving in the military, the Trial Court shall take up the matter on priority basis and dispose of the same as early as possible.