State vs Gopyanaika and Others

Mohan M. Shantana Goudar, J.—Sri S.G. Rajendra Reddy (learned counsel appearing on behalf of respondents 2 and 6) is appointed as Amicus Curiae and to argue on behalf of respondent No. 1 also.

The Judgment and Order of acquittal dated 08.03.2011 passed by Fast Track Court - II, Shivamogga in S.C. No. 50/2010 is called in question in this appeal by the State.

The accused were tried and acquitted of the offences punishable under Ss. 143, 144, 148, 302 read with S. 149 of IPC.

The case of the prosecution in brief is that deceased Nagibai is the wife of accused No. 1; their marriage was performed about fifteen years prior to the incident in question. Out of the wedlock, three children were born; they started leading marital life at Biliki Tanda in Shikaripura Taluk. Accused No. 2 is the sister of Accused No. 1. Accused No. 3 is the husband of Accused No. 2. Accused Nos. 4 to 6 are the sons of Accused Nos. 2 and 3. After the marriage, all the accused started scolding the deceased with filthy language and started torturing her mentally and physically; despite repeated requests by the father of the deceased, the harassment by the accused did not stop as against the deceased; at 7.30 p.m. on 23.11.2009, all the accused formed themselves into an unlawful assembly with a common object to murder Nagibai; Accused Nos. 2 to 6 got hold of the deceased Nagibai and poured kerosene on her body, whereas, accused No. 1 set fire due to which Nagibai sustained burn injuries. Immediately after the incident, she was taken to Shiralakoppa Government Hospital and thereafter to Dist. Govt. Mc Gann Hospital, Shivamogga. She succumbed to the burn injuries at 2.00 a.m. on 28.11.2009 at Mc Gann Hospital. The Inspector of Police completed the investigation and laid the charge-sheet against all the six accused.

The prosecution, in order to prove its case, examined 19 witnesses in all, marked 13 Exhibits and 3 Material Objects. On behalf of the accused, 3 Exhibits were got marked.

As aforementioned, the Trial Court, on evaluation of the materials on record, acquitted all the accused.

Sri Chetan Desai, learned Government Pleader, taking us through the entire material on record, submitted that the court below is not justified in ignoring two dying declarations marked as Exs. P6 and P10; though the Trial Court referred to those dying declarations, it did not evaluate the material on record in respect of the same; the two dying declarations and the related evidence if proved, itself will be sufficient to prove the guilt against the accused for the offence punishable under S.302 of IPC and therefore the Trial Court ought not have acquitted the accused casually.

Sri S.G. Rajendra Reddy, learned advocate/Amicus Curiae appearing on behalf of the respondents argued in respect of the Judgment of the court below and contended that the case fully rests on the two dying declarations; the dying declarations are unbelievable; both the dying declarations are got up; There is nothing on record to show that the victim was in a position to speak at the time of recording the dying declarations; the evidence of doctors - PWs 1 and 15 is untrustworthy in as much as their version is not supported with any other medical record/s. Amongst other grounds, learned Amicus Curiae sought for affirmation of the Judgment of the court below.

PWs 1 and 9 are the brothers and PW-10 is the daughter of deceased Nagibai. PW-11 is the father of the deceased and PW-6 is the relative of deceased. All of them came to the spot after hearing the noise, however, they have not witnessed the accused involving in the incident of setting fire to the deceased. PWs 4 and 5 are the panchanama witnesses for the spot mahazar marked as Ex. P4. PW-6 is the witness for the inquest mahazar, Ex. P5. PWs 7, 14 and 15 are the Medical Officers. PW-14 is the doctor who conducted the Post-mortem examination. PWs 7 and 15 are the doctors who have endorsed their signatures on the dying declarations, Exs. P6 and P10 respectively. PW-8 is the Secretary of the Grama Panchayat who has issued the house extract wherein the incident has taken place. PW-12 is the Executive Engineer who drew the sketch of scene of offence as per Ex. P9. PW-13 is the Taluka Executive Magistrate who wrote the dying declaration as per Ex. P10, as told by the deceased on 24.11.2009. PWs 16 and 18 are the Investigating Officers. PW-19 is the Police Constable.

As per the case of prosecution, PWs 2 and 3 went near the house of PW-1 at the time of alleged incident and they have heard the sounds of shouting in the house of PW-1 and saw burning Nagibai and at that relevant point of time, the accused were allegedly present. It is the further case of prosecution that, on seeing PWs 2 and 3, the accused ran away from the scene. Both PWs 2 and 3 have turned hostile to the case of the prosecution. Hence, their version is of no use either to the prosecution or to the defence.

Prosecution''s case fully rests on the circumstantial evidence. There are no eye-witnesses to the incident in question. As aforementioned, PWs 2 and 3 who were supposed to be the eye-witnesses have turned hostile to the case of the prosecution. They have deposed before the Court that Nagibai died due to accidental burns in as much as she herself doused kerosene and put herself on fire.

As aforementioned, accused Nos. 2 to 6 are of different family. Accused No. 2 is the sister of Accused No. 1 and Accused No. 3 is the husband of Accused No. 2. Accused Nos. 4 to 6 are the sons of Accused Nos. 2 and 3. The house of accused Nos. 2 to 6 is at a distance of about V/2 Kms. from the house of accused No. 1. As per the case of the prosecution, the incident in question has taken place in the kitchen of the house of accused No. 1. The evidence of PW-1, brother of the deceased would clearly reveal that on the date of alleged incident, accused No. 1 and his wife Nagibai only were there in the house. Moreover, there is no reliable material to show that accused 2 to 6 were also present in the house of accused No. 1 during the relevant point of time.

PWs 1, 6, 9, 10 and 11 have deposed that the deceased made oral dying declaration before them when they visited the hospital and talked with the victim. In the cross-examination of these witnesses, a suggestion was made by the defence that these witnesses have not stated before the police with regard to the alleged dying declaration made by the deceased Nagibai. The Investigating Officer has clearly admitted in his evidence before the Court that none of the aforementioned witnesses have stated before him during examination in chief, about the dying declaration. Thus, it is clear that the witnesses PWs 1, 6, 9, 10 and 11 have improved their version before the Court of bringing out a new case that the deceased had made oral dying declaration before them. Since these omissions are material omissions, the Trial Court has rightly not given any credence to such material omissions.

The only other material staring at the accused is relating to the dying declarations. The prosecution relies upon the two dying declarations Exs. P6 and P10. Ex. P6 is stated to have been recorded by PW-16, the Sub-Inspector of Police, in the presence of the doctor - PW-7 on 23.11.2009, in between 10.30 a.m. to 11.15 a.m., based on which, Crime No. 233/2009 came to be registered against the accused. The doctor - PW-14 has admitted that the victim had sustained 90 to 95 percent burns which were of third degree. Injuries sustained by the victim were from head to toe. PW-1 has admitted that it was very difficult to shift the victim to the hospital in the van because of heavy burn injuries. In this context, Sri Rajendra Reddy is justified in arguing that it would not be possible for the victim to state as per the material found in Ex. P6, the dying declaration i.e., immediately within three hours of the incident in question. The said dying declaration is stated to have been recorded in the Government Hospital at Shiralakoppa. PW-7 is the doctor attached to Shiralakoppa Government Hospital.

We have perused Ex. P6, the dying declaration. The same runs to about more than 1 1/2 pages. It has been meticulously mentioned therein as to how many years back the marriage of the deceased took place, which is her parent''s place and about the harassment meted out to her including the incident in question. Though Ex. P6 contains the seal and signature of the doctor of Shiralakoppa Government Hospital, there is no endorsement of the doctor on the dying declaration stating that the victim was in a fit condition to make statement. In a matter of this kind, the prosecution has to prove beyond all reasonable doubts that the victim was in a position to speak. However, Ex. P6 does not disclose that the victim was in a fit condition to make statement during the relevant point of time. The doctor has merely endorsed his signature but has not stated anything with regard to fitness of the victim to make statement.

We may hasten to add here itself that in cross-examination the doctor has deposed that the victim was in a fit condition to make statement at the time of recording Ex. P6. He has also admitted that since the entire body of the victim was burnt, he did not take either the thumb impression or toe impression of the deceased on the dying declaration.

We are also conscious of the fact that there is no reason as to why the version of the doctor before the Court should be disbelieved on the question of fitness of the victim to make statement at the relevant point of time. However, such deposition of the doctor will have to be tested by considering all the attendant circumstances. In para 10 of his cross-examination, the doctor has admitted that the doctor will have to certify about the fitness of the victim while a police or other person records the statement of the victim; which means the said doctor was conscious of the legal position that he will have to give the fitness certificate or at least, he will have to endorse/record that the victim was in a fit condition to make statement at the time of recording dying declaration. However, no such record is forthcoming.

It is the further evidence of doctor PW-7 that the dying declaration, Ex. P6 was recorded about fifteen minutes and at that point of time, the victim was admitted to ward of Shiralakoppa Government Hospital. This version of the doctor is contrary to the evidence of admission of PW-1, the brother of the deceased, who accompanied the victim to Shiralakoppa Hospital and then to Mc Gann Hospital and who was present all through with the victim. PW-1 has deposed that the victim was not shifted from ambulance to Shiralakoppa Government Hospital; on the other hand the doctor at Shiralakoppa Hospital came to the ambulance and examined the victim in the ambulance and she was given an injection; thereafter the victim was taken to Mc Gann Hospital in the ambulance. The evidence of PW-1 clearly reveals that the victim was not shifted into the hospital and she was not admitted to ward. So also there is nothing on record including medical record showing that the victim was admitted to ward in Shiralakoppa Government Hospital. If it is so, there is no question of police writing Ex. P6 in the ward of Shiralakoppa Government Hospital, in the presence of the doctor - PW-7.

The PSI - PW-16 who recorded the dying declaration - Ex. P6 has also deposed that on getting the information, he went to Shiralakoppa Government Hospital directly and at that point of time the victim was on a bed in the ward of Shiralakoppa Government Hospital; he recorded the statement of the victim in the hospital. However, he has not deposed that he recorded the dying declaration in the presence of any of the doctors much less before the doctor - PW-7. The said Police Officer has further admitted that he took about half an hour to write down the dying declaration - Ex. P6 and that the victim was almost dying and that the victim was not being treated in the hospital at Shiralakoppa. The evidence of PW-16 clearly and unequivocally states that the dying declaration - Ex. P6 was not recorded in the presence of doctor - PW-7. Therefore the evidence of PW-7 that he was present at the time of recording the dying declaration is unbelievable, more particularly, when the said doctor has not recorded anything either in the case-sheet or in the dying declaration as to whether the victim was in a fit condition to make statement during the relevant point of time. Therefore the Trial Court is justified in disbelieving the dying declaration - Ex. P6.

The second dying declaration, marked as Ex. P10 is stated to have been recorded on 24.11.2009 by the Taluka Executive Magistrate - PW-13. It is the further case of the prosecution that the Taluka Executive Magistrate came to Mc Gann Hospital, Shivamogga on receiving the information from PW-16, Sub-Inspector of Police and he was also present at the time of recording the dying declaration - Ex. P10.

We find from the said Ex. P10 that there is some interpolation in the date of recording of the said dying declaration. It is relevant to note that only at two places the date of recording the dying declaration has been mentioned and in both the places, interpolation with regard to the date of recording the dying declaration could be made out. Such interpolations have not been explained by the prosecution.

Even in respect of Ex. P10, the doctor, PW-15 who has endorsed his signature, has not certified that the victim was in a fit condition to make statement. No records are produced by the prosecution either in the form of case-sheet of the hospital or any reliable material to show that the victim was in a fit condition to make statement during the relevant point of time. The said doctor - PW-15 has admitted that the victim has sustained third degree burns. Thus, though PW-15 has deposed that the victim was in a position to make statement at the relevant point of time, said fact has not been recorded either in the dying declaration or in the case-sheet maintained by the hospital.

It is relevant to note that the dying declaration - Ex. P10 has reached learned JMFC on 04.01.2010 i.e., after the lapse of 40 days of the alleged date of recording the same. If really the dying declaration - Ex. P10 was recorded on 24.11.2009, there is no reason as to why it should reach learned JMFC after about 40 days. In this context, the argument of the learned advocate for the accused ''that Ex. P10 is created subsequently to suit the purposes of the prosecution case'' deserves to be accepted. In addition to the same, PW-16 Sub-Inspector of Police has deposed before the Court that he was present in the Mc Gann Hospital upto 2.30 p.m. for recording the statements of certain witnesses, but till such time the Taluka Executive Magistrate had not come to the hospital. Per contra, it is the case of the prosecution that the dying declaration -Ex. P10 was recorded at 1.54 a.m.

As aforementioned, the date of recording the dying declaration - Ex. P10 has been tampered at two places. Since the said dying declaration has reached JMFC 40 days after the alleged date of recording and as no explanation is forthcoming from the prosecution with regard to such delay, the Trial Court has rightly not given due importance to the dying declaration - Ex. P10.

From the above discussion, it is amply clear that the prosecution has not proved its case beyond reasonable doubt. The Trial Court has assigned valid reasons while acquitting the accused. The view taken by the Trial Court in the matter on hand while acquitting the accused is the only possible view that could have been arrived at and hence, no interference is called for.

The appeal is dismissed.

We place on record the service rendered by the learned Amicus Curiae. Registry is directed to pay Rs. 10,000/- as honorarium to Sri S.G. Rajendra Reddy, Amicus Curiae.