Shantakumar Bhimasha Kakenavaru vs State

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned Government Pleader.

The appellant is before this Court challenging a judgment of the court below convicting the appellant for offences punishable under Sections 306, 498-A and 504 of the Indian Penal Code, 1860. The facts are as follows:

It was the case of the prosecution that one Mallamma, W/o. Shantakumar had filed a complaint that she had married the accused about two years prior to the complaint and there were no children by the marriage. The appellant -accused was suspecting her fidelity and there was constant harassment by the appellant and that on 24.12.2008 at about 7.30 p.m., the appellant had come home in a drunken state as usual and had picked up a quarrel and started abusing her.

Unable to bear such ill-treatment, the complainant is said to have locked herself inside the house and doused herself with kerosene and set herself ablaze. It is the appellant''s brother who had received information about the incident. He along with the appellant had rushed to their house and had broken open the door and had got the complainant admitted to Hospital. It then transpires that on the basis of the complaint made before the Tahsildar and the Taluk Executive Magistrate, a case was registered in Crime No. 344/2008 for offences punishable under the aforesaid provisions of law under which the appellant has been convicted. It then transpires that a dying declaration was recorded in question and answer format as per Exhibit P-27 at about 1.30 a.m. on 25.12.2008. The appellant was promptly arrested and after further proceedings. The charges having been framed by the Sessions Court, on committal, the appellant had pleaded not guilty and having claimed to be tried, the prosecution had tendered evidence and had examined 21 witnesses and had marked several exhibits and material objects.

On the basis of the said evidence, the court below had framed the following points for consideration:

"1. Whether prosecution proves that on or before 24.12.2008 at about 7.30 p.m. at Srinivas Saradagi village in the house of accused, accused under influence of alcohol, daily used to assault the used to abuse her thereby subjected deceased Mallamma to cruelty and harassment suspecting her fidelity which is of such nature as is likely to drive the deceased to commit suicide and thereby committed an offence punishable under Section 498A, Indian Penal Code?

Whether prosecution further proves that on the said date, time and place deceased Mallamma committed suicide by pouring kerosene and litting fire and while taking treatment in Government hospital, Gulbarga, died and that you abetted its commission by cruel treatment and harassment to deceased under influence of alcohol suspecting her fidelity and thereby committed an offence punishable under Section 306 Indian Penal Code?

Whether prosecution further proves that on the said date, time and place under influence of alcohol accused has intentionally insulted deceased Mallamma suspecting her fidelity knowingly that it will provoke her to commit breach of peace and thereby committed an offence punishable under Section 504 Indian Penal Code?

What Order?"

The court below has answered all the points in the affirmative and convicted the appellant. It is noticed that PW-10 was the mother of the deceased and she has to some extent, supported the case of the prosecution in asserting that her daughter was being ill-treated by the accused. PW-11 who was the father of the deceased has also generally supported the case of the prosecution as to the alleged ill-treatment meted out by the accused to the deceased.

PW-12, the maternal uncle of the deceased has also supported the case of the prosecution and has asserted that the accused was suspecting the chastity of the deceased. PW-18 as well has supported the case of the prosecution. However, the other witnesses namely PWs 6, 7, 8, 9, 13, 14 and 15 have not supported the case of the prosecution. The court below therefore has placed strong reliance on a dying declaration of the deceased which alone has prompted the court to hold that the same has to be given complete credence in bringing home the guilt of the accused and has held that the appellant should be visited with appropriate punishment and has accordingly convicted him and has sentenced him to rigorous imprisonment for a period of 7 years and also has imposed a fine of Rs.5,000/- for the offence punishable under Section 306, IPC; imprisonment for a period of three years and a fine of Rs.5,000/- for the offence punishable under Section 498-A, IPC and imprisonment for a period of three months and a fine of Rs.250/- for the offence punishable under Section 504, IPC. All the sentences were to run concurrently. It is this which is under challenge in the present appeal.

The learned counsel for the appellant would submit that insofar as the evidence of the parents, the maternal uncle and the brother of the deceased are concerned, they have made general allegations against the appellant, which would not establish that there was abetment of commission of suicide by the deceased, nor of the cruelty that was alleged to be meted out to the deceased by the accused. It is not in dispute that the deceased had set herself on fire by locking herself inside the house and it was not also in dispute that she was childless and possibly was frustrated and depressed on account of the fact that she was not able to bear children even after two years of her marriage. Therefore, he would submit that the only material evidence which the court below has relied upon is the dying declaration and if it is to be found that the dying declaration was a valid document it could have been given the significance that it deserved, the appellant would then have had a difficult task in questioning the judgment of the Trial Court. However, on the other hand, if it is pointed out with reference to established principles of law as to the manner in which a dying declaration ought to be recorded and that it is to be noticed that the dying declaration relied upon by the prosecution was not in accordance with law, the appellant would have to be acquitted, as the prosecution would have little positive evidence to bring home the charge of abetment or cruelty insofar as the appellant is concerned.

It is pointed out that the incident had taken place at 7.30 p.m. on 24.12.2008. The deceased was admitted to hospital by about 10.30 p.m. and the dying declaration is said to have been recorded at 1.30 a.m. on 25.12.2008 by the Tahsildar and Taluk Magistrate. The dying declaration does not stand the test of law. In that, it was to be preceded by an endorsement of a Medical Practitioner that the deceased was in a fit state of mind to make the statement. The fad that the deceased had suffered 95% burn injuries, would raise a presumption that she was certainly not in a position to speak and she would have been in severe pain and suffering. Going by the complaint which is said to have been made in a cogent manner and the dying declaration which is recorded in a question - answer format, would indicate that the deceased with 95% burn injuries was incapable of making such clear and cogent statements and hence, the dying declaration would have to be scrutinised more closely in accepting its genuineness and is to be examined whether it conforms to the established principles of law governing dying declarations. In this regard, the certification by a Medical Practitioner as to the person being in a fit state of mind, assumes great significance. As laid down by the Supreme Court in the case of Nallapati Sivaiah v. Sub-Divisional Officer. Guntur, AP, AIR 2008 SC 19 it is the duty of the prosecution to establish a charge against the accused beyond all reasonable doubt. The benefit of doubt must always go in favour of the accused. The dying declaration is a substantive piece of evidence to be relied on, provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. The condition of the deceased to make a voluntary and truthful statement, ought to be certified by a Medical Practitioner. It is not because it is the requirement in law that the Doctor who certified about the condition of the victim to make a dying declaration is required to be examined in every case. But. it was the obligation of the prosecution to lead corroborative available evidence in the peculiar circumstances of the case.

The learned counsel would submit that this proposition would clearly apply to the present case on hand and it is pointed out that the Medical Practitioner who had endorsed at the foot of the dying declaration as to the patient being in a fit condition to make a statement, is improper. The dying declaration should have been preceded by such a certification and it is only after the Doctor has certified that the patient was in a position to make a statement, that it ought to have been recorded. The further peculiarity is that the complaint as well as the dying declaration are both recorded at the same time, namely at 1.30 a.m, which is again practically impossible by PW-17 himself and this is again an indication that there is obvious attempt to set up documents which may not have been authentically generated.

It is also pointed out that the concerned Medical Practitioner has never been examined before the court and having regard to the seriousness of the injuries suffered by the patient and the practical impossibility of the patient having made such cogent statements in her complaint and the dying declaration when she was suffering from such serious burn injuries being difficult to countenance, it was very significant that the Medical Practitioner who had certified the patient ''s state of mind, ought to have been examined at the trial and in the absence of which, to accept such a dying declaration to the detriment of the appellant, would result in a serious miscarriage of justice and the court should have been reluctant to accept the said dying declaration in the face of such discrepancies. Therefore, he would submit that apart from the general evidence of the parents to implicate the accused, there is no other material evidence which could be relied upon by the prosecution to bring home the charges. If the dying declaration is eschewed in the circumstances aforesaid, there is no case made out by the prosecution and accordingly, he would submit that the appeal be allowed and the judgment of the court below be set aside and the accused acquitted.

While the learned Government Pleader would make an effort to sustain and justify the judgment of the court below.

From an overall view of the facts and circumstances and the record of the case, it is evident that apart from the parents, the brother and the maternal uncle of the deceased, there is no other evidence supporting the allegations of the accused meting out cruelty to the deceased or having abetted the commission of suicide by the deceased in which event, it is the dying declaration alone which would implicate the accused and as rightly pointed out by the learned counsel for the appellant, the dying declaration in such a situation would have to be viewed very closely, as it is a substantive piece of evidence and it should be made out that the victim was in a fit state of mind to make such a statement. The Medical Practitioner who had certified such fitness, ought to have been examined before the court below. In the face of the several discrepancies that were pointed out insofar as the dying declaration is concerned, to place reliance entirely on the said dying declaration and to convict the accused, would result in a serious miscarriage of justice. Therefore, it is to be accepted that the court below was not justified in holding that the prosecution has been able to bring home the charges against the accused on the basis of such evidence. Consequently, the appeal is allowed. The judgment of the court below is set aside. The accused shall stand acquitted.