Subramani vs State Of Karnataka

Pankaj Mithal, J

The appellant - Subramani and the deceased Chennamma were husband and wife. They were married for seventeen years before the date of the incident. They had two daughters and two sons. The eldest daughter was aged about sixteen years at the relevant time. They had lived a happy married life for about three years. Thereafter, their relations became strained, and it is alleged that the appellant started ill-treatingthe deceased and kept on raising demands for money, which the father of the deceased fulfilled most of the time. The appellant had even started treating her with cruelty.

On the night of 20.07.2000, the appellant and the deceased as usual again picked up a quarrel. The appellant, in anger, went out  and  fetched  some  kerosene.  The  kerosene  was  poured on the deceased in a bathroom, the appellant lit a candle and threw it upon her, causing serious burn injuries. The appellant, after burning her, left the house. On the alarm raised by the deceased, the neighbours came and tried to save her. They doused the fire by pouring water. The deceased was taken to the Victoria Hospital by the neighbours and the mother of the appellant. She was admitted at around midnight and died after three days on 24.07.2000 in the hospital due to severe burn injuries received by her.

An FIR No. 194 of 2000 under Section 302 and Section 498A of the Indian Penal Code ‘IPC’  was lodged by the father of the deceased on  24.07.2000  after  she  had  died.  The  police  inspector Shiva Murthy, upon investigation submitted a chargesheet against the appellant for committing offences punishable under Section 498A and 302 IPC.

The  appellant  was  put  to  trial.  The  Trial  Court  acquitted  him primarily  on  the  ground  that the  bathroom  where the  incident took place was very small where two persons could not have been accommodated. The testimonies of the family witnesses were inconsistent and unreliable. The medical evidence suggested that deceased had received more than 80 to 90 percent burn injuries and  as such she may not be in a mental state to depose or state anything either to the doctor or the police. The dying declaration, if any, was therefore unreliable.

On an appeal by the State to the High Court, the Division Bench reversed the judgment and order of the Trial Court. The acquittal was set aside, and the appellant was convicted under both the above provisions. He was sentenced to two years of simple imprisonment along with fine of Rs.2,000/- and in default in payment of the same, with a further three months of simple imprisonment under Section 498A. He was also convicted  under  Section  302  IPC  for  killing  the  deceased and was  sentenced  to  life  imprisonment  and  a  fine  of  Rs.10,000/-, and in default, to undergo a further one month of simple imprisonment.

Aggrieved by the aforesaid conviction and sentence, the appellant preferred a Criminal Appeal under Section 379 of Cr.P.C which was admitted on 13.12.2010 after the delay in filing the same was condoned. Thus, the appeal is before us for consideration as to whether the appellant is guilty of the offences  under  Section  302  and  498A  of  IPC  and  whether  the sentence awarded to him is justified.

We have heard Shri Shekhar G. Devasa, learned senior counsel for the appellant-Subramani and Shri Sanchit Garga, Advocate on record for the respondent-State of Karnataka.

Learned  senior  counsel  for  the  appellant  argued  that  the  High Court was not justified in interfering with the order of acquittal passed by the Trial Court, more particularly when the acquittal had been recorded on cogent and valid reasons after considering every piece of the evidence on record. It was submitted that apart from the inconsistencies in the statements of the material witnesses, particularly PW-7 and PW-16, who categorically stated that the deceased was unconsciousand not in a position to speak, there was no credible evidence to prove that the appellant had committed the offence as alleged. It was also submitted  that  the  prosecution  failed  to  prove any  motive  for homicidal death. It was inherently improbable  that the offence could have been committed inside the small bathroom, and that no independent neighbour was examined to prove the commission of the offence. The alleged dying declaration was unreliable, as it was unsupported by any medical certificate and stood contradicted by hospital documents, which record a history  of  self-inflicted  burns.  Furthermore,  the  deceased  had admittedly  received  more  than  80  to  90  percent  burn  injuries and was under heavy sedation. She was not in a position to make any statement. Therefore, the conviction based upon the alleged dying declaration of the deceased was wholly illegal.

There is no dispute as to the fact that the parties were married 17 years prior to the date of the incident and that there used to be frequent quarrels between them with regard to money. It has also  come  on  record  through  evidence  that  the  appellant  used to beat and treat the deceased with cruelty. There were regular demands for money by him. The aforesaid facts and the evidence clearly establish that the appellant was not a satisfied man who suffered from frustration and as such had a motive to kill the deceased.

The testimony of PW-3, Niresha, the eldest daughter of the appellant and the deceased who was aged about 16 year is very crucial and material. She had clearly deposed that on the fateful night, she, her mother, sister and brothers were in their house. Her father  came and  questioned the  mother that when he  had sent her to her paternal home to get money, why she had sent her  father  to  counsel  and  advise  him.  Thus,  they  picked  up  a quarrel  and  her  father  threatened  her  mother  to  wait  and  see what  he  was  going  to  do.  He  went  out  and  brought  kerosene, poured  it  on  her  mother  and  set  her  on  fire.  This  was  done  at around 11:00 p.m. in the night and thereafter, he ran away from the house. On the screams of her mother, the neighbours came and extinguished the fire. Her grandmother and one another person  took  her mother  to  the  hospital  in  the  burnt  state.  Her mother remained in the hospital for three days, undergoing treatment, and thereafter, she died.

The aforesaid witness PW-3 is an eyewitness. She has narrated the  incident  as  was  seen  by  her.  There  is  no  inconsistency  in her statement and there is no reason to disbelieve her. There is no material on record to show as to why she would falsely depose against her father. Her evidence clinchingly proves that the appellant brought kerosene, poured it on her mother and lit the fire.

The other crucial witness in the case is PW-4, Dr. S. Rudramurthy who had conducted the post-mortem upon the deceased.  He  categorically  stated  that  the  death  occurred  due to septicaemia as a result of burn injuries sustained by her. He proved  the  postmortem  report  ‘Exhibit  P-2’  and  his  signatures on it. He further stated that the burn injuries were antemortem and were to the extent of  85 to 90 percent. He reported that septicaemia naturally occurs with such high burn injuries. He opined that the burn injuries received by the deceased were superficial in nature. He further opined that even if the deceased  was given proper  and best treatment, her chances of survival  were  minimal.  Hence,  the  postmortem  report  and  the statement of PW-4 as such establish that the deceased  died  of septicaemia as a result of 80-90% burn injuries which were superficial.

There is another witness named Dr. Gurumurthy, whose statement was recorded as PW-10. He was the doctor who had treated the deceased after she was admitted in the Victoria Hospital, Bangalore. He stated that he was the in-charge of burns  ward  of  the  hospital.  The  deceased  was  brought  to  the hospital on 20.07.2000 at around 11.15 p.m. with  a  history of burns. She was admitted in the hospital at 12:00 midnight. According to the deceased, as informed to him, her husband used  to  quarrel  with  her  frequently.  On 20.07.2000,  he  came home at around 11.00 p.m., assaulted her and then poured diesel over her, set her on fire and ran away. He stated that there is a note to the above effect in the case sheet as well. He had  examined  the  deceased  on  23.07.2000  and  she  made  the said statement at around 12.30 p.m. on the same day. He even proved ‘Exhibit P-11’, the statement of the deceased and his signatures upon it. He further stated that the deceased was in hospital up to 24.07.2000 and expired at 9.35 a.m. on the said date.

One  doctor  named  Dr.  HC  Ramanna,  PW-11,  also  treated  the deceased  when  she  was  admitted  to  the  Victoria  Hospital.  He stated that on 20.07.2000 while he was working in the aforesaid hospital, a patient by name Chennamma was brought to the hospital in a burnt state. He had examined the patient and had noticed that she had 9 per cent burns on the face and neck, 18 per  cent  burns  on  the  chest  and  abdomen,  9  per  cent  on  the upper  right  and  left  limbs,  10  per  cent  on  the  lower  right  and left  limbs  and  that  the  total  burns  received  by  her  were  to  the extent  of  80  per  cent.  The  patient was  conscious  when  he  had examined her. She was admitted by him to the burns ward. On the morning of 21.07.2000 at about 02:45 am (i.e. in the night itself), the police of S.R. Nagar came to the hospital and requested him to give permission to record the statement of the patient.  Since  the  patient  was  conscious and  in  a position to give  the  statement,  he  gave  permission  to  the  police  to  record her statement. The statement was recorded as Exhibit P-12 and he  had  made  an  endorsement  on  it  under  his  signatures  that the  patient  was  in  a  fit  condition  to  give  a  statement.  He  even proved the endorsement and his signatures on Exhibit P-12. In his cross-examination, nothing material turned  up except that he admitted that in the OPD slip, it is mentioned that she herself had poured kerosene and had set fire to herself, but he does not know who recorded the said statement  on the OPD slip/case sheet (Exhibit P-11). He further admitted that though according to his examination the burns were to the extent of 80  per cent but he does not know why the burns were recorded to be 98 per cent. He denied the suggestion that the endorsement on Exhibit P-12  was  made  by  him  to  support  the  prosecution  under  any pressure.

The aforesaid evidence of the two doctors who examined the deceased  clearly proves  that the  deceased  was admitted  to  the hospital as alleged on 20.07.2000 and that despite serious injuries, she was in a conscious state. The attending doctors have certified that she was in a fit position to make a statement and,  therefore,  permission  was  granted  to  the  police  to  record her statement which is Exhibit P-12 which bear the endorsement and  signature of  the doctor.  We see  no reason  to disbelieve the evidence of PW-4, PW-10 and PW-11.

The dying declaration of the deceased was recorded by the Head Constable working in the SR Nagar Police Station. His statement was recorded as PW-15. He categorically stated that he had remained posted in the aforesaid police station from 1997 to May, 2003 meaning thereby that he was posted at the aforesaid police station at the time the alleged incident took place and the deceased was taken and admitted to the hospital. He further stated that on the said date he was on night duty and at about 01:30 am, the Station House Officer having received information of the deceased being admitted in the hospital, had asked him to go and record her statement. He as such reached the hospital at 02:00 am and met the doctor of the burns ward of the hospital. He informed him that he had come to record the statement of the deceased. The doctor after talking to the deceased  for about two minutes  informed  him that the patient was in a position to give the statement. He permitted him to record the statement, whereupon he recorded her statement for about  half  an  hour.  The  deceased  put  her  thumb  (LTI)  on  the statement recorded by him as she was not in a position to put her signatures. The statement was endorsed by the doctor who certified the condition of the deceased and signed the statement. He proved the statement Exhibit P-12, the endorsement and the certificate of the doctor and his signatures upon it.

The translated copy of the statement (Exhibit P-12) was not placed before us, though the original in vernacular language exists in the record. The same was proved by PW-15, as stated earlier. He stated that the deceased told him that she was married to the appellant and had lived happily with him for about 2-3 years but thereafter the appellant had started quarrelling with her demanding her  to bring more money from her parents. He started treating her cruelly by abusing and beating her. On 20.07.2000, he quarrelled with her and forced her to get more money from her parents. In the night, he again picked up a quarrel with her and assaulted her. He then abused her and even threatened to kill her. He poured kerosene on her body and set her  on fire. At  that  time her  four  children were sleeping in the house and on hearing her cries, they went  to their grandmother’s house and called her.

Considering the circumstances and the evidence of  PW-3, PW- 4, PW-10 and PW-11 coupled with the fact that there is no adverse material to doubt the above dying declaration or to suggest that it was not actually or properly recorded or that the deceased was not in a state to make such a statement, there is no reason to disbelieve the dying declaration.

The  fact  that  the  aforesaid  PW-15  admitted  that  there  was  no nurse present at the hospital when he recorded the statement, is  not  enough  to  belie  the  above  dying  declaration.  The  same was recorded in the night at about 02:00-02:30 am with the permission of  the doctor  who  has accepted  having granted  the permission on being satisfied that the deceased was in a fit state to  make  the  statement.  In  the  light  of  the  above  statements  of the doctors and the police officer, the oral evidence of PW-7 and PW-16 that she was not conscious to give any statement, is not reliable. The deceased, may have been momentarily in an unconscious state due to the effect of sedatives, however, by and large, as the burn injuries were superficial, though to great extent, she was conscious most of the time and was in a fit state of mind to get her dying declaration recorded.

This apart, the police had recovered a matchbox, a kerosene tin and burnt cloth pieces from the site of the incident immediately. The Recovery Memo was duly prepared in the form of Exhibit P- 1.  The  said  exhibit  was  proved  by  the  PW-6,  D.  Rangaswamy, one of the neighbours who had visited the house of the deceased immediately  on  the  occurrence  of  the  incident.  He  has  stated that the matchbox, kerosene tin and burnt cloths were lying at the scene, a mahazar was prepared on the spot and the aforesaid items were collected and seized by the police. He had signed the mahazar prepared by the police which is before him as Exhibit P-1 and bears his signatures. He denied the suggestion that he was making a false statement.

The  fact  of  recovery  of  the  kerosene  tin,  matchbox  and  burnt cloth pieces from the scene of the incident, the deposition of PW- 3, the daughter of the appellant and the deceased that she had seen her father bringing kerosene tin, pouring it on her mother and putting her on fire, coupled with the dying declaration and the statements of the doctors PW-10, PW-11 who examined and treated the deceased and PW-4 who conducted the post- mortem, in unequivocal terms prove that the appellant alone is responsible for the commission of the aforesaid offences. He is the person who picked up quarrel with his deceased wife, poured kerosene and burnt her and that his wife died due to the burn injuries after consciously making a dying declaration and naming the appellant as the main culprit.

In view of the above clinching pieces of evidence, there is hardly any scope for the acquittal of the appellant.

The Trial Court was not justified in acquitting the appellant on slight discrepancies in the statements of some of the witnesses, particularly PW-7 and PW-16. PW-7 is a person who carried the deceased to the hospital and his statement is not very trustworthy. He has not deposed about her condition in the hospital. PW-16 is the police inspector who conducted the investigation. He might have deposed that the deceased was not in a conscious state of  mind but  that  would not override the statement  of  the  doctors  who  treated  the  deceased,  especially the one who was on duty and had permitted the police to record the statement of the deceased on being satisfied that she was in a fit condition to make a statement.

In view of the aforesaid facts and circumstances, we are of the opinion that the High Court is perfectly justified in the facts and circumstances of the case that the appellant is guilty of commission of offences both under Sections 498A and 302 IPC and has rightly been convicted and sentenced to the imprisonment awarded.

The  appeal,  as  such,  is  devoid  of  merit  and  is  dismissed.  The appellant is on bail. He is directed to surrender forthwith to undergo the remaining part of the sentence.

Pending application(s), if any, stands disposed of.