State of Karnataka vs Kumara alias Madike

Mohan M. Shantanagoudar, J.—The judgment and order of acquittal dated 30.8.2012 passed by the I Addl. Sessions Court, Mysuru in S.C. No. 44/2012 is called in question in this appeal by the State.

By the impugned order, the trial Court has acquitted the accused Nos. 1 and 3 of the offences punishable under Section 302 r/w Section 34 of IPC.

The case of the prosecution is that the deceased Ravi is the near relative of the accused; the deceased was living in Mole village of Kollegal Taluk along with his mother (P.W.7) and brother (P.W.8); their native place is Mavinahalli village in T. Narasipura Taluk; one week prior to the incident, the deceased had come back to Mavinahalli village and was working as a driver of the tractor in the said village; since his grandfather had expired on 5.3.2011 he went to attend the funeral ceremony of his grandfather and at that point of time, all the accused scolded him in filthy language that he and his mother have left the village and is living elsewhere and as to why he has come on that day; so saying, accused Nos. 1 and 2 poured kerosene on the victim and accused No. 3 Kappanna set the deceased ablaze with the help of match stick; the incident has taken place at about 11 a.m. on 5.3.2011; after hearing the hue and cry, the villagers of Mavinahalli extinguished the fire and admitted the victim to T. Narasipura Government Hospital and thereafter, victim was shifted to K.R. Hospital, Mysuru for higher treatment.

The statement of the victim was recorded at 4.30-5.00 p.m. on 6.3.2011 in burns ward of K. R. Hospital, Mysuru as per Ex.P21 by Assistant Sub-Inspector of Police (P.W.26); based on the said statement of the victim, Crime No. 32/11 came to be registered by P.W.27, the Sub-Inspector of Police attached to Talakadu police station for the offences under Section 307 r/w Section 34 of IPC. Though the crime was registered at about 7.00 p.m. on 6.3.2011, the first information report was handed over to the police constable P.W.30 for delivering the same to jurisdictional Magistrate at 8.00 a.m. on 07.03.2011. However, the first information report reached the Magistrate at 10.30 a.m. on 8.3.2011; by then the victim had died at 9.00 a.m. on 8.3.2011.

It is relevant to note that on 6.3.2011 itself, another statement of the victim was recorded as per Ex.P22 by Taluka Executive Magistrate (P.W.29) in the presence of the Doctor P.W. 19. Both the statements of the victim Exs.P21 and P22 are treated as dying declarations. P.W. 18 the Inspector of Police completed the investigation and laid the charge-sheet.

Though the charge-sheet was filed against Accused Nos. 1 to 3, the trial was conducted only against Accused Nos. 1 and 3 and case against Accused No. 2 was split up.

In order to prove its case the prosecution in all examined 30 witnesses and got marked 29 exhibits and 4 material objects. On behalf of the defence, 2 exhibits got marked. The trial Court, on evaluation of the material on record, acquitted the accused by giving benefit of doubt in favour of the accused.

Sri. Rachaiah, learned Government Pleader taking us through the entire material on record and the judgment of the Court below argued that the Court below is not justified in relying upon the two dying declarations Exs.P21 and P22, which are consistent and cogent; the evidence of P.Ws.26 and 29 who have recorded the dying declaration fully supports the case of the prosecution; both the dying declarations are supported by the versions of the Doctor P.W. 19 who has certified about the fitness of the victim to make statement during the relevant point of time; since the dying declarations are trustworthy and as the dying declarations are supported by the testimony of related witnesses, according to him, the trial Court ought to have convicted the accused solely relying upon the dying declarations.

Per-contra, Sri. Somashekhar Kashimath, learned advocate for respondent No. 1 and Sri. M. Ramanjaneyulu, learned Amicus Curiae argued in support of the judgment of the Court below.

There cannot be any dispute that the accused can be convicted for the offence under Section 302 of IPC etc., in case, if the dying declaration is believed. However, the Court can rely upon the dying declaration only if the same is trustworthy and is supported by the versions of the person who has recorded the dying declaration and the fitness of the victim to make statement, apart from other attending circumstances. It is needless to observe that each case has to be judged based on the facts and circumstances of that particular case. It is the duty of the Court to take into consideration the entire material on record while coming to the conclusion. Undisputedly, the proved dying declaration can be the sole basis for conviction of the accused. Since the case on hand fully rests on the dying declarations Exs.P21 and P22, we have meticulously perused and reassessed the entire material on record before coming to the conclusion.

Before proceeding further it would be relevant to note the version of each of the witnesses, which is as under: -

P.Ws. 1 to 6 are the villagers of Mavinahalli village; they are said to be present during the relevant point of time and extinguished the fire. All these witnesses have turned hostile to the case of the prosecution and did not support the case of the prosecution despite lengthy cross-examination by the Public Prosecutor; the prosecution was not able to get any relevant material from the said witnesses in support of the case of the prosecution. All these witnesses have deposed that the deceased himself came out of the house with burn injuries and that the deceased himself was responsible for his death, in as much as, he set himself ablaze. The evidence of P.W section 1 to 6 was not shaken by the Public Prosecutor in the cross-examination.

P.W.7 and P.W.8 are the mother and brother of the deceased respectively. After receiving the information about the incident, they went to K.R. Hospital and talked to the injured at about 2.00 p.m. on 5.3.2011. They also talked to the police at 2.00 p.m. in the hospital. According to them, their statements have been recorded at 2.00 p.m. by the police in the hospital.

P.W.9 is the Doctor who conducted autopsy over the dead body of the deceased. Ex.P 12 is the post-mortem report. The Doctor has opined that the death is due to septicaemic shock as a result of extensive burns sustained to an extent of 85-90%.

P.W. 10 is the Doctor attached to K.R. Hospital, Mysuru. He informed about the death of the deceased to the police as per Ex.P 13.

P.Ws.11 to 16 are the witnesses for scene of offence mahazar and inquest mahazar. They have turned hostile to the case of the prosecution.

P.W. 17 is the woman police constable attached to Talakadu police station. She went to Devaraja police station and obtained the death memo and handed over to P.W.26-Assistant Sub-Inspector of Police.

P.W. 18 is the Inspector of Police, lie completed the investigation and laid the charge-sheet.

P.W. 19 is the doctor. He was present at the time of recording both the statements viz., Ex.P21 and Ex.P22 in K.R. Hospital by Assistant Sub-Inspector of Police and by Taluka Executive Magistrate.

P.W.20 is the scientific officer of Forensic Science Laboratory, Bangalore. On examination of M.Os.1 to 4, he has issued the certificate as per Ex.P18.

P.Ws.21 to 25 are all police constables who participated during the investigation at different levels.

P.W.26 is the Assistant Sub-Inspector of Police, Talakad police station. He recorded the statement of the injured on 6.3.2011 at about 4.30 p.m. to 5.00 p.m. as per Ex.P21.

P.W.27 is the Sub-Inspector of Police of Talakad police station. He registered the first information based on Ex.P21 sent through Police Constable P.W. 30. He conducted part of investigation.

P.W. 28 took the injured to the hospital with the help of ambulance.

P.W. 29 is the Taluka Executive Magistrate. He recorded the second dying declaration Ex.P22 at about 6.30 p.m. on 6.3.2011.

P.W. 30 is the Police Constable. He carried the first information report to the jurisdictional Magistrate.

As mentioned supra, the first information report reached the jurisdictional Magistrate at about 10.30 a.m. on 8.3.2011. According to P.W. 30, though the first information report was handed over to him by P.W.27 in the morning at 8.00 a.m. on 7.3.2011 with instructions to deliver the same to jurisdictional Magistrate, he delivered the same to jurisdictional Magistrate only at 10.30 a.m. on 8.3.2011, in as much as, he went to his native place to see his mother who was unwell.

From the aforementioned narration, it is apparent that the case of the prosecution fully ; rests on the dying declarations Exs.P21 and P22 and the evidence of P.Ws. 19, 26 and 29 apart from other attending circumstances.

It is not in dispute that the incident has allegedly taken place at 11.00 a.m. on 5.3.2011 in the house situated at Mavinahalli village. It means, the incident has taken place in the middle of the village. At that point of time, the grandfather of the deceased had died and number of persons had gathered to attend the funeral ceremony in front of the house. Since the victim sustained 85-90% bum injuries all over the body, the fire was extinguished by the villagers and he was immediately taken to T. Narasipura hospital and thereafter to K.R. Hospital, Mysuru with the help of ambulance for treatment. Thus, it is amply clear that the incident was known to one and all in the village. Ex.P17, the case sheet maintained by K.R. Hospital, Mysuru clearly discloses that the patient Ravi was admitted to the said hospital at 12.35 p.m. on 5.3.2011. It is not in dispute that K.R. Hospital is in Mysuru city. It is also undisputed that the patient was first taken to T. Narasipura hospital and thereafter to K.R. Hospital, Mysuru. Since it is a medico legal case, the intimation must have been sent by the hospital authorities to the police intimating the police about the matter. P.Ws.7 and 8. mother and brother respectively of the deceased have admitted in their evidence that on hearing the news they came to K.R. Hospital to attend the patient and at about 2.00 p.m., the police came to the said hospital and enquired them about the incident; their statements were recorded at 2.00 p.m. on 05.03.2011 in the K. R. Hospital. Thus it is admitted by the prosecution witnesses that the police came to know about the crime in and around 2.00 p.m. on 05.03.2011. Despite the same, no attempt is made by the police to register the crime till Ex.R21 was recorded by the Assistant Sub-Inspector of Police from 4.30 to 5.00 p.m. on 06.03.2011. Absolutely no records are forthcoming as to what has happened from 12.30 p.m. on 05.03.2011, at which point of time the victim was admitted to hospital, till 04.30 p.m. on 06.03.2011. Only the first page of the case sheet is produced and the same is marked as Ex.P. 17. No other medical records are forthcoming to find out as to whether the victim was really in a fit condition to make statement or not. Since the aspect of dying declaration will be discussed later by us, we confine ourselves to the non-explanation on the part of the prosecution in not registering the case at the earliest, as of now.

Since the victim was admitted at 12.35 p.m. on 05.03.2011 in the District Government Hospital (K.R. Hospital) at Mysuru and as the police came to the hospital at 2.00 p.m. on 05.03.2011, it was the duty of the police to register the crime. Absolutely no explanation is forthcoming as to why the crime was not registered against anybody. If really the victim was in a position to speak and if really the victim had spoken to his mother and brother (P.Ws. 7 and 8), and if really those two persons had talked to police at 2.00 p.m. in K.R. Hospital, the police would be knowing the complicity of any of the accused in the crime. The non-explanation by the prosecution about the delay in registering the crime needs to be taken serious note of. In this context, the defence is justified in arguing that the prosecution has tried to buy time for concocting false stories against the accused.

The case sheet Ex.P. 17 clearly reveals the history recorded by the doctor who is an independent Government servant attached to K.R. Hospital, Mysuru. The history recorded discloses that it is the case of self bums and the patient himself had poured kerosene and set himself ablaze at 11.00 a.m. on 05.03.2011. Even the date "05.03.2011" is tampered in as much as some corrections are made on the said date. It seems the date was earlier mentioned as 03.03.2011 and the same was rewritten/over-written as 05.03.2011. The initial is not made by the doctor certifying the correction made by him on the case sheet. Moreover, it is clearly mentioned by the doctor that the general condition of the patient was not satisfactory though the patient was conscious. At the time of admission itself doctor has clarified that the general condition of the victim was not satisfactory. Firstly, it is not clear as to whether the patient was admitted on 03.03.2011 or 05.03.2011 (in view of the alteration in the date). Secondly, even assuming that the victim is admitted to K. R. Hospital on 05.03.2011, the general condition of the victim was not satisfactory during the said period. It is also mentioned in the case sheet that the victim sustained superficial to deep burns over the face, scalp, neck, front and back of the chest, abdomen and both the lower and upper limbs. It seems, the external genitalia and both the soles have remained unburnt, which means body of the victim was completely burnt from top to bottom. Except the soles and external genitalia both the limbs, face, scalp and neck were burnt.

In addition to delay in registering the crime by the police, further delay is caused by the investigating authority for reaching the first information report to the jurisdictional Magistrate. As mentioned supra, the incident has taken place at 11.00 a.m. on 05.03.2011. The police came to the hospital at 02.00 p.m. and allegedly recorded statements of P.Ws.7 and 8. However, crime came to be allegedly registered at 07.00 p.m. on 06.03.2011. Though the crime was registered at 07.00 p.m., according to P.W.30, the first information report was handed over to him at 08.00 a.m. on 07.03.2011 for delivering the same to jurisdictional Magistrate. Absolutely no reasons are assigned and no explanation is given by the police officer as to why the first information report was not handed over to the jurisdictional Magistrate forthwith immediately after the registration of the crime. Curiously and more astonishingly, P.W.30 was supposed to immediately deliver the first information report to jurisdictional Magistrate. After receiving the same he has delivered the same at 10.30 a.m. on 08.03.2011. The only explanation offered by P.W.30 is that his mother was unwell and therefore he went to his native place to see his mother and he could reach the Magistrate Court only at 10.30 a.m. on 08.03.2011. The said explanation by public servant is unacceptable, more particularly, having regard to the background under which the crime is belatedly registered and the first information report was handed over belatedly to P.W.30. From the aforementioned facts it is amply clear that though the incident has taken place at about 11.00 a.m. on 05.03.2011 and though the police came to know about the incident at about 02.00 p.m. on 05.03.2011, the first information report has reached the jurisdictional Magistrate at 10.30 a.m. on 08.03.2011. Such a long delay which has remained unexplained, gives rise to grave suspicion in the mind of the Court about the veracity of case of the prosecution, more particularly, in the light of the history recorded by the doctor at K.R. Hospital, Mysuru at the time of the admission of the victim in the said hospital. In this context, the defence may be justified in arguing that only after the death of the deceased at 09.00 a.m. on 08.63.2011, the entire process of investigation was started by the police and that the dying declarations are created subsequently, to suit the purposes of prosecution.

Coming to the two dying declarations Exs.P21 and P22, after having assessed the material on record in depth, we agree with the reasons assigned by the trial court in disbelieving the dying declarations. Firstly, the material contained in Exs. P21 and P22 differ to certain extent. Ex.P21 is recorded from 4.30 to 05.00 p.m. on 06.03.2011, whereas Ex.P22 is recorded from 06.30 to 07.00 p.m. on 06.03.2011, which means both the dying declarations are recorded within a span of two hours. In the first dying declaration Ex.P.21 it is stated that accused Nos. 1 and 2 poured kerosene and accused No. 3 lit fire, whereas in the second dying declaration Ex.P.22 it is (omnibus statement) stated that all the three persons poured kerosene and set the victim ablaze. In the first dying declaration Ex.P21, the victim has clearly stated the names of P.Ws. 1 and 2 as the persons who extinguished fire and P.W.28 as the person who took him to the hospital with the help of ambulance whereas, in the second dying declaration Ex.P22, victim has allegedly stated that villagers extinguished the fire and he did not know as to who took him to the hospital.

Moreover, both the dying declarations are in a detailed form; they not only narrate the incident in question, but also they narrate the native place, motive behind the incident, about the avocation of the victim etc., They even mention as to how the victim was taken to hospital and to which hospital etc. There cannot be dispute that even a person who has suffered 90-95% burn injuries can state about certain facts and it all depends upon the health condition and the facts of each case. But in the case on hand, while admitting the patient to the hospital the doctor has clearly mentioned in the case sheet that the general condition of the victim was not satisfactory, though he was conscious. Merely the victim was conscious, it cannot be deemed or presumed that he was fit to make statements. In the matter on hand, it is clear from the medical records that the victim has suffered superficial to deep burns over the face, scalp, neck, front and back of the chest, abdomen, both lower and upper limbs, etc. The doctor has opined that the victim has suffered 85-90% of bums. In view of the non-availability of the case sheet maintained by the K.R. Hospital, it is not possible for the Court to find out as to whether victim was in a position to speak during the period in which the dying declarations were recorded. Though the first page of the case sheet is produced and the same is marked as Ex.P 17, the other pages of case sheet are not produced and the same was suppressed. The prosecution, in all fairness, ought to have produced the entire case sheet maintained by the hospital for perusal of the Court to find out as to whether the victim was in a fit condition to make statement or not. Even otherwise, as mentioned supra, in the first page itself the history recorded by the doctor clearly states that it is a case of suicide and that the general condition of the victim was not satisfactory.

P.W. 26 the Assistant Sub-Inspector of Police has recorded the dying declaration Ex.P21. The Assistant Sub-Inspector has deposed that he met the doctor on 06.03.2011 in K.R.Hospital and asked him as to whether the victim was in a position to give statement; P.W. 19 told him that the victim was in a position to give statement and accordingly, he recorded the statement of victim in the presence of P.W.19 as per Ex.P.21. He identifies Ex.P. 19 as the right thumb impression of victim. In the cross-examination, he admits that before recording the statement of the victim, he went through the case-sheet maintained by the hospital. It was mentioned in the case-sheet that he sustained bums on 05.03.2011 at his residence. However, immediately thereafter, P.W.26 withdraws from his earlier statement to further depose that he did not go through the case-sheet and in the memo received from the hospital, it was mentioned so. From the afore-mentioned facts, it is clear that the Assistant Sub-Inspector of Police is blowing hot and cold at the same time. There is no reason for him to go through the case-sheet of the hospital at that time. Moreover, he has not deposed that he was satisfied about the fitness of the victim to make statement. On the other hand, according to him, the doctor told him that the victim is in a fit condition to make statement and after recording the statement, he has taken right thumb impression of the victim.

P.W.29 is the Taluka Executive Magistrate who recorded the second dying declaration at Ex.P.22. He admits that the victim had told before him that all the four accused poured kerosene and set him ablaze and the doctor told him that the victim was in a position to give statement. In the cross-examination, the Taluka Executive Magistrate admits that he has not filled up the relevant columns in Ex.P.22 personally and his assistant filled the same in his presence. He further admits that the said dying declaration at Ex.P.22 did not contain the signature of his assistant who has scribed the dying declaration. In paragraph 5 of his cross-examination, P.W.29 has deposed that though the victim was knowing as to how to sign, but as his hands were burnt, he could not sign. However, he put his right thumb impression. It is further admitted by P.W.29 that he has not made any endorsement at Ex.P.22 that the hands of the victim were burnt and he was unable to sign.

We have already mentioned in the earlier paragraphs as to the deficiencies found in the two dying declarations. Both the dying declarations has a finger print impression. According to P.Ws.26 and 29, the victim had put his right thumb impression on both the dying declarations (though his hands were burnt).

P. W. 19 was the doctor who was allegedly present at the time of recording the two dying declarations by the concerned officers. It is no doubt true that P.W.19 has deposed in the examination-in-chief that both the dying declarations were recorded in his presence and that the victim was conscious at the time of recording his oral statement. Nowhere in his dying declaration, it is stated that victim was in a fit condition to put thumb impression. However, it is deposed that the victim was conscious and well-oriented. Be that as it may. It is clearly admitted by the doctor that all the ten fingers of victim were burnt and he could not sign or affix the marks of the fingers and hence, the impression of right great toe was taken on Ex.P.21. He further deposes that the right thumb mark was taken on Ex.P.22. We are at a loss to understand as to how the right thumb mark or left thumb mark can be taken on the two dying declarations since all the ten fingers were burnt fully. Though it is specifically admitted by the doctor that right great toe impression was taken on Ex.P.21, in Paragraph 3, he improves himself to depose that on going through Ex.P.21, he finds the right thumb mark and not right great toe mark. This clearly means that the two right thumb marks found in the two dying declarations are generated and they do not actually belong to the deceased. Since all the ten fingers were burnt and as the victim was not in a position to affix any of his finger mark on the dying declarations, his right thumb impressions could not have been found on the dying declarations. In the cross-examination, he admits that in Ex.P. 17 (case-sheet) maintained in the hospital, it is mentioned as heavy burns and the said case-sheet bears the left thumb impression of one Ravi. These facts would clearly reveal that the thumb impressions are manufactured liberally by the Investigating Officer just to suit the case of the prosecution. Since the noting is found on Ex.P. 17 at the time of admission of the patient at 12.30 noon on 05.03.2011 that the victim''s condition was not satisfactory, it is incumbent upon the prosecution to show as to when the victim''s condition improved and as to when he was in a position to give statement. It is also incumbent on the prosecution to show satisfactorily as to why, no statement of the victim was recorded though the police were very much present in the hospital from 2.00 p.m., of 05.03.2011 onwards and though the victim was allegedly in a talking condition. Looking to the facts narrated supra, it is clear that the first information report reached to the jurisdictional Magistrate only at 10.30 p.m.. on 08.03.2011 and not earlier to that though the police were very much present in the hospital from 2.00 p.m., onwards on 05.03.2011. In this regard, the defence may be justified in arguing that both the statements vide Ex.P.21 and Ex.P.22 were recorded by the Investigating Officer only after the F.I.R reached the jurisdictional Magistrate and that too only after the death of the deceased. The deceased died at 9.00 a.m., and only thereafter, the first information report reached the jurisdictional Magistrate.

On re-assessing the entire material on record, we find that the reasons assigned by the Trial Court are just and proper and the conclusion taken by the Trial Court is a possible view in the facts and circumstances of the case. Hence, no interference is called for. Appeal fails and the same stands dismissed.

We place on record the valuable assistance rendered by learned Amicus Curiae and the Registry is directed to disburse Rs.7,500/-(Rupees seven thousand five hundred only) to learned Amicus Curiae as honorarium.