State of Karnataka vs Vasanth

Mohan M. Shantana Goudar, J—The Judgment & Order of acquittal dated 28th March 2011 passed by the Fast Track Court-IV, Bangalore city in Sessions Case No. 396/2007 is called in question in this appeal by the State.

By the impugned Judgment, the trial Court has acquitted the accused for the offence punishable under Section 302 of IPC.

Case of the prosecution in brief is that the incident has taken place at about 2 p.m. on 19.1.2007; the deceased Sangeetha was a poor lady and was residing on streets; she was eking her livelihood by making coolie; she was a commercial sex worker also; few days prior to the incident in question, on one day, the accused - Vasanth called the victim to cooperate with him for sexual pleasure, but the deceased did not agree for the same; the accused threatened her with dire consequences; at about 2 p.m. on 19.1.2007, the accused came with a kerosene bottle and poured kerosene on her body and set her ablaze in front of the bus stand wherein Tamilnadu buses are being stopped in Bangalore bus station, opposite to Shantala Silk House; when she cried for help, PWs. 1, 5, 6 and 16 (Police Constables) who are on duty rushed to the spot and shifted her to Victoria Hospital, Bangalore for treatment; the deceased made an oral dying declaration as per Ex. P8 which came to be recorded by the doctor P.W. 14 in the case sheet of the hospital; thereafter P.W. 2 being the junior doctor of P.W. 14 sent a memo to the Police informing about admission of the victim to the hospital as per Ex. P1; thereafter the PSI � P.W. 17 came to the hospital and recorded the statement of the victim as per Ex. P2 at 2.30 p.m. on 19.1.2007 in presence of the doctor � P.W. 2; the victim died of burn injuries in the hospital at 11.50 p.m. on 20.1.2007. Based on Ex. P2, Crime No. 20/2007 came to be registered in Cottonpet Police Station, Bangalore for the offence punishable under Section 307 of IPC. After the death of the deceased, Section 302 was added. The Inspector of Police � P.W. 15 completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 17 witnesses and got marked 16 Exhibits and 6 Material Objects. On behalf of the defence, no witness is examined. The trial Court on evaluation of the material on record concluded that the prosecution has not proved its case beyond reasonable doubt and thus acquitted the accused.

Though CWs. 5 to 10 are the alleged eye witnesses to the incident in question and though the incident has taken place in the centre of the Bangalore city wherein KSRTC Bus-stand, city bus station and Railway Station are situated and though the incident has taken place on the footpath abutting the Main Road leading to Railway Station and Bus Station, the prosecution has failed to examine any of the eye witnesses. The prosecution could not secure the presence of CWs. 5 to 10, the alleged eye witnesses to the incident before the Court. Thus the case of the prosecution fully rests on two dying declarations Ex. P8 and Ex. P2 and the versions of the doctors and the various officials connected to the aforementioned two dying declarations.

Ex. P8 is the statement made by the victim at 3 p.m. on 19.1.2007 i.e., immediately at the time of admission of the victim to the hospital. It is not in dispute that the victim sustained 100% burns from face to toe. It is also not in dispute that the lips and other parts of body of the victim were completely burnt. At the time of admission of the patient/victim to the hospital, P.W. 14 was the doctor in-charge of the plastic surgery ward wherein generally such patients are being admitted. He recorded the statement of the victim as given by her at the time of admission as per Ex. P8 (case sheet). The case sheet -Ex. P8 maintained by the Victoria Hospital reveals that the patient/victim came to the hospital at 2.55 p.m. on 19.1.2007 and immediately she was given glucose and penicillin injection apart from TT injection. At the time of admission, the doctor has mentioned that the victim is admitted with the alleged history of homicidal burns on 19.1.2007 at 8 a.m. She has suffered 100% burns including the facial burns. The noting of the case sheet made at 3 p.m. on 19.1.2007 discloses that the patient was alert, conscious, oriented, physically and mentally fit to give statement. The victim has given the history that she suffered homicidal burns on 19.1.2007 at 8 a.m. at Majestic bus stand (Tamilnadu Bus Platform); she was sleeping on the platform and person by name Vasanth, the alleged pick-pocketer called her to have sex with him, which she has refused; Irritated by this, he poured kerosene on her and set her ablaze; she was a commercial sex worker; she was brought to the Victoria hospital by P.W. 5, the Police Constable attached to Cottonpet Police Station. It is also mentioned in Ex. P8 that the said doctor who recorded the aforementioned dying declaration has read over the statement to the victim in her own language and she has accepted the same as true. The left toe impression of the victim was taken apart from her signature on Ex. P8. This has taken place at 3 p.m.

From the aforementioned dying declaration - Ex. P8, it is clear that the incident has taken place at 8 a.m. on 19.1.2007 when the victim was sleeping on the platform, but the case of the prosecution is that the incident has taken place at 2 p.m. on 19.1.2007 and thereafter the victim was taken to hospital. It is not in dispute that the victim was admitted to hospital at 2.55 p.m. or 3 p.m on 19.1.2007. The only confusion is as to when the incident actually occurred. As per the 1st statement of the victim (Ex. P8), the incident has taken place at 8 a.m. on 19.1.2007 and not at 2 p.m. as alleged by the prosecution. If really the incident has taken place at 8 a.m. on 19.1.2007, there are no records to show as to what happened subsequent to the incident till the victim was admitted to the hospital at 3 p.m.. Thus the vacuum lies in the case of the prosecution from 8 a.m. to 2 p.m. As the incident has taken place at 8 a.m. on 19.1.2007 and the victim was admitted only at 3 p.m. on the said day, it is clear that the victim was not provided any help muchless Police help and medical help till she was shifted to hospital at 3 p.m.

Ex. P8, the Dying Declaration is fully supported by the version of doctor - P.W. 14, who recorded the same. P.W. 14 has deposed that the dying declaration is read over to the victim in her own language and she has accepted the same to be true and correct; The victim has put her left toe impression as well as her signature in English on Ex. P8. In the cross-examination, P.W. 14 admits that the victim came to the hospital at 2.50 p.m; at the time of admission, the patient was serious and has sustained 100% burns; she was suffering from dehydration; she has got breathing problem. P.W. 14 further admits that the patient gave the statement in Kannada language, but he wrote it in English language. However, he has not stated in Ex. P8 that the patient has given statement in Kannada language. Be that as it may, the evidence of P.W. 14 makes it amply clear that at the time of admission itself, the patient was serious and she has suffered 100% burn injuries; she was suffering from dehydration; she has got breathing problem etc., Despite the same, P.W. 14 has deposed that the victim gave the history as recorded in Ex. P8 to the effect that she sustained burn injuries at 8 a.m.

The next dying declaration recorded by the Police is at Ex. P2. The same is in the question and answer form. Based on Ex. P2, crime came to be registered against the accused. In Ex. P2, it is mentioned that the incident has taken place at 2 p.m. on 19.1.2007; One Vasanth poured kerosene on her and set her ablaze. It is also mentioned in Ex. P2 that said Vasanth was pressurizing her to have sex with him, but the victim has refused the request of said Vasanth. Ex. P2 is recorded by the Sub-Inspector of Police �P.W. 17 in presence of the doctor P.W. 2.

P.W. 2 is an Assistant Professor working in Plastic Surgery Department. He is the junior doctor to P.W. 14. He sent a memo to the Police as per Ex. P1 requesting the Police to record the dying declaration. At the time of recording the dying declaration Ex. P2, the victim was conscious and was fit to make statement. Doctor - P.W. 2 identified his signature on Ex. P2 as Ex. P2(b). He admits in the cross-examination that he did not mention the time and date of his signature on Ex. P2; He has not heard as to what was stated by victim before the PSI - P.W. 17; He does not know as to what was spoken to by the victim while recording Ex. P2; However he was present at the time of recording her statement; Both the lips of the victim were burnt; Generally, the patient whose lips were burnt is not able to speak, but the victim in this case was in a position to speak. His evidence is supported by the evidence of PSI - P.W. 17 who recorded Ex. P2.

From the aforementioned facts, it is clear that two dying declarations - Ex. P2 and Ex. P8 materially differ with regard to the time of incident. Ex. P8 which is the first in point of time states that the incident has taken place at 8 a.m., whereas Ex. P2 which is recorded after half an hour states that the incident has taken place at 2 p.m. Ex. P8, the first dying declaration contains both the toe impression as well as the signature of the victim, whereas Ex. P2 neither contains the toe impression nor her signature. Absolutely no material is found as to what has happened within the span of 20 to 30 minutes and as to why the PSI - P.W. 17 did not take either the toe impression or the signature on the dying declaration - Ex. P2.

Ex. P8 is recorded by the doctor directly at the time of admission of the patient to the hospital, whereas Ex. P2 is recorded by the Sub-Inspector of Police in presence of the doctor. The said doctor P.W. 2 who was allegedly present at the time of recording Ex. P2 did not know about the contents of the statement made by the victim in Ex. P2. We do not find any reason to prefer Ex. P2 to Ex. P8. So also we do not find any adequate reasons to discard the contents of Ex. P8 since it is recorded by the doctor without intervention of the Police. Therefore in our considered opinion, the contents found in Ex. P8 are rightly believed by the trial Court.

Both the dying declarations contain the name of the culprit as Mr. Vasanth. It is no doubt true that the name of the Accused is also Vasanth. Absolutely no acceptable material is found as to whether the accused -Vasanth has committed the crime. Merely because the victim has uttered the name of Vasanth, the known pick-pocketer in the locality, the Court cannot presume that the accused in this case must have committed the crime. There can be other Vasanth also. As aforementioned, none of the eye witnesses are examined by the prosecution. If the incident has taken place at 8 a.m. on 19.1.2007 as alleged in the first dying declaration - Ex. P8, then the versions of the Police Constables PWs. 1,5,6 and 16 would not help the case of the prosecution inasmuch as according to them immediately after the incident at 2 p.m., they shifted the injured to the hospital. Since the presence of PWs. 1, 5, 6 and 16 on the spot at the time of the incident is doubtful inasmuch as their versions differ from the version as found in Ex. P8 and as the time of offence found in the two dying declarations - Ex. P2 and Ex. P8 is totally different, the trial Court has given the benefit of doubt in favour of the accused. On re-appreciation of the material on record, we find that the view taken by the trial Court while acquitting the accused is a plausible view. Hence no interference is called for. Accordingly, we pass the following:

"Appeal filed by the appellant - State challenging the Judgment and Order of acquittal dated 28th March 2011 in Sessions Case No. 396/2007 fails and the same stands dismissed.

The accused/respondent - Vasanth S/o. late Gangadharappa was sent to judicial custody by this Court by the order dated 7th September 2015. He shall be released forthwith, if he is not required in any other case.

We place on record the valuable services rendered by Sri Dinesh Kumar K. Rao, learned amicus curiae. In token thereof, we direct the Registry to pay Rs. 10,000/- (Rupees Ten thousand only) as honorarium to the learned amicus curiae."