State of Karnataka vs Ramesh Babu

Mohan M. Shantana Goudar, J.

The Judgment and Order dated 31st May 2011 passed by the Fast Track Court-I, Tumkur in S.C. No. 106/2009 is called in question in these two appeals. By the said Judgment, the trial Court has convicted the accused for the offences punishable under Sections 498-A and 304 Part-II of IPC and sentenced him to undergo imprisonment for one year and three years respectively apart from imposing fine. By the very Judgment, the Court below has acquitted the accused for the offences punishable under Sections 302 and 201 of IPC.

Criminal Appeal No. 946/2011 is filed by the State questioning the acquittal of the accused for the offences under Sections 302 and 201 of IPC.

Criminal Appeal No. 591/2011 is filed by the convicted accused challenging his conviction for the offences under Sections 498-A and 304 Part II of IPC.

It is relevant to note that the State has not filed any appeal praying for enhancement of sentence imposed on the convicted accused.

Case of the prosecution in brief is that accused -Ramesh Babu married the deceased Manjula about 8 to 9 years prior to the incident in question; out of their wedlock, a son by name Dhanush was born; the married couple lived happily for a period of about 4 to 5 years after the marriage and thereafter matrimonial discord started; the accused started to have illicit relationship with one Shalini (CW.17); the deceased came to know about such relationship between the accused and Shalini and hence she started pressurizing the accused to part the company of Shalini and to lead matrimonial life with her in usual manner; the accused did not agree for the said proposal of the deceased and he started quarrelling with the deceased Manjula; he used to assault her and ill-treat her; he used to drink alcohol everyday while returning home and abuse Manjula in filthy language; since one year prior to the incident, the accused was not coming to the matrimonial house regularly inasmuch as he used to stay back in the house of Shalini in her company; in other words, the deceased was mentally and physically tortured by the accused as aforementioned.

During the night of 4.1.2009, the accused did not come back to the matrimonial house and he stayed with Shalini; at about 9.30 a.m. on 5.1.2009, the deceased was taking her son - Mr. Dhanush to his school from the house; at that point of time, the accused started climbing steps to come to his house; on being asked by the deceased, the accused did not give any answer; however the deceased went with Mr. Dhanush and left him in school and came back; after coming back to her house, the deceased asked him as to where he had gone and stayed on the previous night; on being pressurized, the accused replied that he had been to the house of Shalini and slept there with her; the deceased Manjula was upset on hearing such answer; with an intention to threaten the accused, she brought a plastic can containing kerosene and told the accused that he should choose one among her and Shalini; she started pretending that she would pour kerosene on her, only to threaten the accused; however the accused suddenly took the kerosene can and poured kerosene on the body of the deceased and set her ablaze by saying that she should die so that he would live peacefully with Shalini; at that time, the accused was wearing only under-garments; when the deceased caught fire, she told the accused that he should also die alongwith her and so saying, she threw burning portion of her sari on him and consequently the accused sustained burn injuries; the deceased started screaming; the accused took her to Government Hospital, Tumkur and admitted her in the said hospital; at the time of going to the hospital, the accused had taken the assistance of one Chikkathimmaiah, his neighbour; after admitting the victim to the hospital, the accused did not turn up; ultimately, the deceased succumbed to the injuries on 10.1.2009;

It is relevant to note that after admitting the deceased to the hospital, the accused went to Kurnool in the Andhra Pradesh State and got himself admitted to Government Hospital for taking treatment for the burn injuries suffered by him; he got himself discharged against the medical advice on 16.1.2009 and he was arrested at Tumkur on 17.1.2009; in the meanwhile, the Sub-Inspector of Police (PW.20) recorded the dying declaration made by the victim in the Government Hospital at Tumkur on 5.1.2009 at 12.15 p.m. as per Ex. P51 in presence of the doctor (PW.15); based on the said dying declaration, Crime No. 3/2009 came to be registered for the offences under Sections 498-A and 307 of IPC; on the next day of the incident i.e., on 6.1.2009, another dying declaration came to be recorded as per Ex. P63 by the Taluka Executive Magistrate in presence of the doctor while the victim was taking treatment in the hospital; after completion of the investigation, the Inspector of Police (PW.18) filed the charge sheet; part of the investigation was done by another Inspector of Police, PW.25.

In order to prove its case, the prosecution in all examined 25 witnesses and got marked 64 Exhibits and 8 Material Objects. On behalf of the defence, no witness is examined. As aforementioned, the trial Court on hearing did not convict the accused for the offences under Sections 302 and 201 of IPC. However the trial Court convicted the accused for the offences under Sections 498-A and 304 Part II of IPC.

Sri A.H. Bhagawan, learned advocate appearing for the accused taking us through the entire material on record submits that the Court below is not justified in relying upon two dying declarations viz., Ex. P51 and Ex. P63 inasmuch as the versions contained in those dying declarations are highly exaggerated and are not fruitful; the deceased was very much annoyed by the conduct of the accused and she had developed so much of ill-will that she was happy if the accused were to die by suffering burns; in this view of the matter, the deceased herself had thrown the burning sari on the accused, consequent upon which the accused has sustained burn injuries. According to him, these facts will have to be kept in mind before evaluating the dying declaration. However he fairly submits that the two dying declarations are proved in accordance with law by the prosecution. As aforementioned, he merely disputes the contents of the two dying declarations inasmuch as he submits that the contents are not truthful. He further submits that the reasons assigned and the conclusion arrived at by the trial Court are not proper and correct. PWs.4,5 and 9 (Mother, brother and aunt of the deceased) did not know about the actual relationship between the accused and the deceased inasmuch as they did not attend the marriage and they did not even go to the matrimonial house of the accused and the deceased after the marriage; He draws the attention of the Court to the evidence of PW.4 to contend that the accused and the deceased were living amicably and there was no ill-will between them. On these, among other grounds, he prays for acquittal of the accused. Alternatively, he submits that the trial Court is justified in convicting the accused for the offence under Section 304 Part II of IPC inasmuch as it is not a case of murder simplicitor in view of the fact that the incident has taken place on the spur of the moment without premeditation and that the accused has not taken helpless condition of the deceased. He further relies upon the medical evidence relating to the accused to contend that the accused also sustained 57% superficial burns and hence according to him, the accused has tried to save the victim immediately after the incident and thus has admitted her to the hospital.

Per contra, Sri Vijayakumar Majage, learned Government Pleader appearing on behalf of the State submits that the Court below ought to have convicted the accused for the offence under Section 302 of IPC. The facts on record cannot fit in Exception 4 of Section 300 of IPC. The two dying declarations amply reveal the intention on the part of the accused to commit the murder of the deceased inasmuch as he has pronounced that the deceased should die so as to enable him to continue his relationship with Shalini. Relying upon the evidence of the doctor - PW.24 who treated the accused at Victoria hospital on 21.1.2009, he submits that the accused has sustained 10% of burns and not 57% of burns. According to him, if really the accused had got any intention to save the life of the deceased, he would have stayed back in the hospital wherein the victim was admitted and would have looked after health of the deceased.

PW.1 is the doctor at Tumkur hospital. He admitted the victim to the hospital and he also reported the Police about the death of the deceased on 10.1.2009 as per Ex. P1.

PWs.2 and 3 are the hostile witnesses. PW.2 is the neighbour of the accused and PW.3 is the landlord of the accused. Their evidence is of no consequence in the matter.

PWs.4 and 5 are mother and brother of the deceased. They have deposed about the ill-treatment of the deceased by the accused. They have also deposed about the oral dying declaration stated to have been made by the deceased before them.

The evidence of PWs.6,7 and 8 is also of no use either to the case of the prosecution or to the defence. Among them, PWs.6 and 8 have turned hostile. PW.7 is the first landlord of the accused.

PW.9 is the aunt of the deceased. She is a hearsay witness regarding ill-treatment by the accused.

PW.10 is the photographer who took photographs of the dead body.

PW.11 is the witness for inquest panchanama Ex. P42.

PW.12 is the Junior Engineer who drew the sketch of scene of offence as per Ex. P43.

PW.13 is another brother of the deceased. He has deposed about the photographs Ex. P45 to P.49. His evidence also may not be of much help to the case of the prosecution.

PW.14 is the Revenue Officer who produced the house assessment list as per Ex. P50 pertaining to the house wherein the incident has taken place.

PW.15 is the doctor before whom the dying declaration Ex. P51 is recorded by the Sub Inspector of Police (PW.20).

PW.16 is the doctor attached to Tumkur Government Hospital. She has secured the medical report from the hospital at Kurnool in Andhra Pradesh state as per Ex. P52.

PW.17 is the Medical Officer who conducted autopsy over the dead body. The post-mortem report is at Ex. P55.

PW.18 is the Inspector of Police. He completed the investigation and laid the charge sheet.

PW.19 is the doctor working in Government Hospital, Kurnool, Andhra Pradesh. He has treated the accused and issued a letter as per Ex. P57 which shows that the accused has taken treatment from 6.1.2009 to 16.1.2009 and that the accused has sustained burns to the extent of 57%.

PW.20 is the Sub-Inspector of Police who after getting intimation from the hospital, rushed to the hospital and recorded the dying declaration as per Ex. P51 in presence of the doctor PW.15 and based on which he registered the case in Crime No. 3/2009 in the new Extension Police Station, Tumkur. He has also deposed about the dying declaration recorded by the Taluka Executive Magistrate as per Ex. P63.

PW.21 is the Police Constable. He also participated during the course of investigation.

PW.22 is the hostile witness. He was supposed to depose about the ill-treatment by the accused. But, he has turned hostile to the case of the prosecution.

PW.23 is the Taluka Executive Magistrate who recorded the dying declaration as per Ex. P63 in presence of the doctor.

PW.24 is the doctor attached to Jail Hospital. She got the accused treated in the Victoria hospital on 21.1.2009. However the accused did not continue to take treatment in the Victoria hospital inasmuch as he wanted to take treatment at Tumkur hospital.

PW.25 is the Investigating Officer who conducted the investigation in part and handed over the investigation to PW.18, who filed the charge sheet.

The incident has taken place in the matrimonial house of the accused and the deceased. Admittedly, the house of the accused and the deceased is rented house and situated in the first floor of the building. It is also not in dispute that except the deceased and the accused, no other person was there in the house at the time of the incident. The incident has taken place somewhere at about 9.30 to 9.45 a.m. on 5.1.2009 within the house. The accused does not dispute his presence on the scene of offence. He also cannot dispute his presence inasmuch as he has also sustained certain burn injuries. The aforementioned admitted facts will have to be kept in mind before proceeding further.

Case of the prosecution is that the accused started illicit relationship with one Shalini about six months to one year prior to the incident and in that context, there used to be quarrel between the accused and the deceased. Even on the date of the incident also, quarrel took place between the two on the said ground. In order to threaten the accused, the deceased took out a plastic can containing kerosene and told the accused that he should choose either of the two i.e., deceased or Shalini. At that point of time, the accused immediately took the kerosene can and poured kerosene on the body of the deceased and set her ablaze. The accused with the help of Chikkathimmaiah admitted the victim to the Tumkur Government Hospital at about 10.30 a.m. After admitting her to the hospital, the accused fled away from the scene.

After admission of the victim to the hospital, the intimation was sent by the hospital to the Police Station and immediately after receipt of the same, the Sub-Inspector of Police (PW.20) rushed to the hospital and recorded the dying declaration of the victim as per Ex. P51. Based on the said dying declaration, the crime came to be registered and thereafter first information as per Ex. P59 was sent to the jurisdictional Magistrate. The said dying declaration - Ex. P51 specifies in detail about the relationship between the accused and the deceased, about interference of Smt. Shalini in the matrimonial life of the accused and the deceased, about the quarrel between the accused and the deceased because of Smt. Shalini. The dying declaration also states as to how the incident has taken place at about 9.30 a.m. on 5.1.2009. The dying declaration states that on 4.1.2009 the accused did not come back to the house. He came to the house only at about 9.15 to 9.30 a.m. on 5.1.2009. When the deceased was taking child - Dhanush to the school, the accused was coming up to the first floor of the house. On being asked, the accused did not answer anything as to his absence on the previous night. However after leaving the child to the school, the deceased came back to the house and started pressurizing the accused to answer her question as to where he had gone on the night of 4.1.2009. Thereafter quarrel ensued between the two. In order to threaten the accused, the deceased held can of kerosene in her hand and told the accused that he should stop his relationship with Shalini and he should choose either the deceased or Shalini, but the accused poured kerosene on the deceased and set her ablaze immediately. It is also mentioned in the dying declaration that the deceased threw piece of burning sari on the accused with a view to see that the accused also should not survive and consequently, the accused also sustained certain burn injuries.

We do not find any artificiality in the dying declaration made by the victim. She has narrated entire incident naturally. There is no exaggeration found in the dying declaration. If really the victim wanted to exaggerate the facts, she would have simply said that the accused came with the preparation of pouring kerosene and set her ablaze. Per contra, it is stated by her in natural manner that it was she who quarreled with the accused because of the aforementioned facts and it was she who wanted to threaten the accused pretending that she would commit suicide by pouring kerosene and set her ablaze. It is also stated in the dying declaration that it was she who threw burning sari on the accused in order to see that the accused also should suffer. Therefore it is clear that even the negative aspects i.e., the aspects which are against the case of the prosecution are also stated in the dying declaration Ex. P51, which is recorded immediately after the incident in presence of the doctor.

Another dying declaration is recorded on the next date i.e., on 6.1.2009 as per Ex. P63 by the Taluka Executive Magistrate in presence of the doctor. The said dying declaration is almost on par with the 1st dying declaration. Virtually, there is no conflict in between the two dying declarations and the facts tally with each other.

Sri A.H. Bhagavan, learned advocate appearing for the appellant fairly submits that he cannot make any comment on the validity of recording of the dying declarations. According to him, the dying declarations are recorded in presence of the doctor and therefore same are admissible in law. However according to him, the contents of the dying declarations are not fruitful and are exaggerated by the victim. According to him, the victim was bent upon to see that the accused is somehow harassed. The victim was mentally depressed because of the attitude of the accused in continuing to have illicit relationship with Shalini. The deceased somehow wanted to see that the accused should die and therefore she herself threw burning sari on him. Based on these facts, learned advocate submits that the victim was having gross hatredness against the accused and thus has exaggerated the facts in the two dying declarations.

Such submissions are difficult to be accepted. As aforementioned, the deceased has come out with her version in the natural manner. All the positive and negative aspects are spoken to by the deceased. Her dying declarations, as aforementioned, depict that she herself wanted to threaten the accused by pouring kerosene on herself. She has even disclosed that it was she who threw burning sari at the accused in order to see that the accused should not survive. These facts would reveal that all was not well between the deceased and the accused. One was at the logger head against the other. The trouble had started because of the intervention of Shalini in the matrimonial life of the accused and the deceased. It reached pinnacle on the date of the incident and consequent upon which the incident has taken place. May be, the victim was frustrated because of the conduct of the accused since one year prior to the incident. MO.5 is the note book which contains the handwriting of the deceased. The handwriting of the deceased was identified by PW.4, the mother of the deceased. The said note book narrates certain events on day to day basis i.e., the events as to how accused behaved with the deceased. The contents of Mo.5 clearly disclose that the deceased was worried about the accused having relationship with Shalini. The deceased has studied upto 2nd year PUC. The contents of Mo.5 are also not disputed by the defence. The aforementioned facts clearly reveal motive on the part of the accused to commit the offence. It does not mean that the deceased has exaggerated the facts in the dying declarations because of such hatredness. It is well settled principle of law that the admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man''s mind the same feeling as that of a conscientious and virtuous man under oath - nemo mohturus praesumitur mentire i.e., a man will not meet his Maker with a lie in his mouth. Such statements are admitted, upon consideration that their declarations are made it extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. So also it has to be kept in mind that though the dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. {see the judgment in the case of UKA RAM.vs. STATE OF RAJASTHAN reported in (2001)2 SCC (Crl) 847}

In the matter on hand, we find that the dying declarations are true, voluntary and are not influenced by any extraneous consideration. PWs.4 and 5 being the mother and brother of the deceased clearly admit that they did not even attend the marriage of the accused and the deceased. PW.4, mother of the deceased goes further to depose that she did not visit the house of the deceased atleast once after the marriage till death, which means that PWs.4 and 5 were also not liking the deceased marrying the accused. Hence there would not have been any intervention by anybody including mother and brother of the deceased at the time of recording of the dying declarations. Both the dying declarations are true, voluntary and are not influenced by any extraneous consideration. As aforementioned, a man will not meet his Maker with a lie in his mouth. We are also conscious of the fact that if the dying declarations are not voluntary, then such voluntary declarations need further corroboration. We are also conscious of the fact that the declarant cannot be subjected to cross-examination and hence we have evaluated the entire material on record, more particularly dying declarations with the greatest scrutiny. We find that the dying declarations inspire full confidence of the court in their correctness. We also do not find any possibility of statements being the result of tutoring, prompting or vindictive or a product of imagination. The victim was in a fit condition during the relevant point of time to make statement. In this view of the matter, Court below is justified in relying upon two dying declarations for coming to the conclusion.

In addition to the above, it is curious to note that though the accused admits his presence on the scene of offence at the time of offence, he does not explain as to how the incident has taken place. Admittedly, he has suffered injuries atleast to an extent of 10% in the incident in question. The deceased has sustained grievous burn injuries, consequent upon which she died. Since the accused was the only person with the deceased at the time of the incident in the house, it is incumbent upon him to explain the strong incriminating circumstances against him. In the matter on hand, the accused has not come out with any explanation either in the form of suggestion to the witnesses while the witnesses were in the witness box or while recording his statement under Section 313 of Code of Criminal Procedure. The purpose of examination of the accused is to give an opportunity to the accused to explain the incriminating circumstances appearing against him. It is by now well settled that adverse inference can be drawn where the accused does not explain the incriminating circumstances against him or gives false explanation. It forms a link in the chain of circumstances which points towards his guilt. In the matter on hand, the accused has remained silent. He has not explained as to how the incident has taken place. Such conduct of the accused also tilts the balance in favour of the prosecution case to certain extent.

On looking to the entire material on record, we are of the opinion that the Court below is justified in convicting the accused for the offence under Section 304 Part II of IPC and not under Section 302 of IPC. The quarrel between the deceased and the accused was persisting since one year prior to the incident. It had reached the pinnacle on the date of the incident. Even on number of previous occasions, the accused had not come to his matrimonial house, but was staying with Shalini or elsewhere. On the previous day of the incident, the accused had not come to his house. He came to the house only at about 9.30 a.m. on 5.1.2009. On being asked by the deceased, the quarrel has ensued once again. The deceased brought the kerosene can in order to threaten the accused. Till such time, the accused did not have any intention to harm the deceased physically. However on the spur of the moment, without any premeditation, it seems the incident has taken place. The trial Court has in detail narrated as to how the offence falls under Section 304 Part II of IPC. There was no premeditation or intention on the part of the accused to murder the deceased till the last minute. The incident has taken place in a sudden quarrel in the heat of passion. The accused did not run away from the scene immediately after the incident, whereas he admitted the victim to the hospital and at that point of time, the presence of brother of the deceased was also secured. The evidence on record, more particularly the suggestions made by the defence to the prosecution witnesses would reveal that the accused was scared for his life inasmuch as relatives of the deceased allegedly wanted to take revenge against him (accused). Therefore the accused fled away from the scene after admitting the deceased to the hospital and got himself admitted to the hospital at Kurnool in Andhra Pradesh by giving a wrong name in the hospital. Even at the time of admission, it is noted by the hospital authorities at Kurnool that he was accompanied by his wife. Actually, the wife of the accused was admitted at Tumkur and therefore it is clear that another lady must have accompanied the accused till Kurnool hospital.

Be that as it may, looking to the totality of facts and circumstances of the case, we are of the opinion that the trial Court is justified in holding that the case falls within the Exception 4 of Section 300 of IPC. Even on reconsidering the entire material on record, we do not find any ground to disagree with the conclusion reached by the trial Court.

Hence, the appeals filed by the State as well as the accused are liable to be dismissed and accordingly, the same are dismissed.

It is needless to observe that the accused is entitled for the benefit of set off as provided under Section 428 of Code of Criminal Procedure.

The trial Court is directed to secure the presence of the accused to serve the remaining portion of the sentence.