Chikkanna Shetty vs The State Of Karnataka on 11 October, 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF OCTOBER 2017

PRESENT

THE HON’BLE MRS.JUSTICE RATHNAKALA
AND
THE HON’BLE MRS.JUSTICE K.S.MUDAGAL

CRIMINAL APPEAL NO.345/2012

BETWEEN:

CHIKKANNA SHETTY
S/O LATE SIDDASHETTY
35 YEARS
RESIDING AT BILUGALI VILLAGE
NANJANGUD TALUK
MYSORE TALUK
MYSORE DISTRICT. …APPELLANT

(BY SRI GANGADHAR SANGOLLI, ADV.)

AND:

THE STATE OF KARNATAKA
BADANAVALU POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE – 560 001. …RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)

 

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED BY THE II ADDITIONAL SESSIONS JUDGE, MYSORE IN S.C.NO.206/2009 DATED 29/7/2011 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES P/U/S 498A AND 302 OF IPC.

THIS CRIMINAL APPEAL HAVING BEEN RESERVED ON 16.09.2017 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, RATHNAKALA J. DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is by the accused assailing the judgment of conviction and sentence dated 29.7.2011 passed by the II Additional Sessions Judge, Mysore, in S.C.No.206/2009, thereby convicting the appellant/accused for the offences punishable under Sections 498A and 302 of IPC and sentencing him to undergo imprisonment for life.

2. Succinctly stated, the respondent/Police charge sheeted the accused/appellant herein for the offences under Sections 498A and 302 of IPC. The case of the prosecution is, the accused was married to deceased Rathnamma for about 12 years; one year after marriage, he started harassing the deceased for money to quench his thrust for alcohol and gambling. However, the deceased was bearing with him; twice or thrice panchayat was held and he was advised; still he persisted his harassment to the deceased. On 6.5.2009, he immolated her by setting fire on her to snatch her gold ear-stud and silver anklet;

3. After committal of the case, the accused was procured and charge for the offences under Sections 498A and 302 of IPC, when read over to him, he pleaded not guilty. Prosecution entered into trial, examined 31 witnesses as PW-1 to PW-31 and produced documents Exs.P1 to P29 and material objects M.O.1 to M.O.5. During the evidence of the prosecution witnesses, a portion of Ex.P10 was marked as Ex.D1. The accused denied the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, during his statement recorded under Section 313 CrP.C. He opted not to adduce defence evidence. After giving audience to both, the learned Sessions Judge held him guilty on both counts of Sections 498A and 302 of IPC. After hearing the accused on sentence, he was sentenced to undergo Rigorous Imprisonment of 6 months and to pay a fine of Rs.5,000/- with default clause in respect of offence under Section 498A of IPC and life imprisonment with fine of Rs.5,000/- with default clause in respect of offence under Section 302 of IPC.

4. Sri.Gangadhar Sangolli, learned Counsel appearing for the appellant submits, the allegation of the prosecution was, the accused was demanding money to meet his expenses and it was never the case of the prosecution that he was demanding money as dowry. All the kith and kin of the deceased examined as prosecution witnesses turned hostile. That by itself was sufficient to extend the benefit of doubt in favour of the accused. The alleged dying declaration was unreliable for the simple reason that she had suffered 70% – 80% burns and in all probability was under sedation. Hence, it is unlikely that she was in a position to talk; as per the Post Mortem report, her entire face was burnt, that is another factor which creates doubt about the capacity of the victim to speak. The dying declaration is said to have been attested with the thumb impression of the deceased. If really she had burns all over the body, where is the question of the victim affixing her thumb impression? Since there was no burn on the scalp, front portion of the abdomen, on the back and both feet, it cannot be a homicidal death. The appreciation of evidence by the court below was not from a proper perspective. The relatives of the deceased in their examination-in-chief evidence had clearly stated that the deceased and the accused were in good terms and there was no dispute between them. This evidence ought to have been appreciated by the court below though they had turned hostile to the prosecution case. The Trial Court has erroneously opined that PW-2 was won over and evidence of PW-11 (mother of the deceased) also falls in line with that of PW-2. But it was a wrong observation. The mother had stated that the accused used to assault deceased but not for dowry. PW-3 and PW-4 had stated only to the extent that whenever there was trouble, they used to be summoned by the accused but that cannot be imagined that accused was demanding money. None of the mahazars are proved by the evidence of independent witnesses. PW- 6/Dr.Shanmukha had stated that the accused tried to save deceased and had sustained burn injury. PW- 25/Dr.Mohan had stated that pain killer was administered to subside the pain and the same will have the effect of sedative. The evidence of PW-21/Tahsildar cannot be believed since the victim was under sedation. No investigation was done in respect of the allegation that the accused had snatched the gold ear-stud and silver anklet from the deceased. The medical records pertaining to the treatment given to the deceased was not made available which could have thrown light on the nature of the medication administered on the victim to subside her pain. Since it was a case of third degree burn, it is highly impossible that the deceased could state in the language as is recorded in the printed proforma Ex.P16. Another brother of the deceased by name Shiva Shetty was not cited as a witness whose evidence could have been crucial.

Learned Counsel continues to submit, when there is inherent weakness in the dying declaration, no initial presumption can be drawn that the dying declaration reveals truth only (placing reliance on the judgment of the Apex Court in Dandu Lakshmi Reddy -vs- Stte of A.P. reported in (1999) 7 SCC 69.

The dying declaration is not recorded in question and answer form but it is recorded as a continuous narration by the deceased that renders the dying declaration suspicious. The dying declaration can be relied to base conviction if only it is found reliable as held by the Apex Court in AIR 2004 SC 1616 (Narain Singh and Another -vs- State of Haryana). When all the circumstantial witnesses have turned hostile to the prosecution case, it is unsafe to convict the accused as held by the Apex Court in AIR 2001 SC 2124 (Arvind Singh -vs- State of Bihar). Looking from any angle, the judgment of conviction cannot be sustained. Hence, the impugned judgment is liable to be quashed.

6. In reply, Sri.Vijaykumar Majage, learned Addl.SPP, while seeking to sustain the judgment of the court below submits that though the family members of the deceased had turned hostile to the prosecution case to certain extent, the remaining part of their examination-in-chief evidence was sufficient for the court below to infer the harassment / cruelty inflicted by the accused on the deceased. Since it was only the deceased and the accused, who are present in the house at the time of the incident, the statutory burden under Section 106 of Evidence Act is cast on the accused to explain the circumstances, which is exclusively within his knowledge. The evidence of the hostile witnesses cannot be thrown away in its entirety only for the reason that they have turned hostile to the prosecution case to a little extent. The time gap between the incident and dying declaration, from dying declaration to date of death, makes it probable the capacity of the deceased to give statement as per Ex.P16, the statement is precise and there is no ambiguity; PW-2 at the first instance supported the case of the prosecution but he was not cross-examined on the same day. On the next day, when he was cross-examined by the defence, he turned hostile to the prosecution case however, during cross- examination by the Public Prosecutor, he admits that on the previous date of hearing, he had given evidence supporting prosecution case. Though PWs-4 and 11 turned hostile, learned Sessions Judge inferred from their evidence that the deceased was subjected to harassment by the accused. There was no suggestion to PW-25/the Doctor, who conducted Postmortem, while he was in the witness box about injury to the thumb of the deceased disabling her to affix her thumb impression on Ex.P16. The judgment of the Sessions Court is on proper appreciation of evidence not warranting interference.

7. In the light of the above rival submissions and on perusal of the judgment impugned with the evidence recorded by the Sessions Court, the sole point that arises for our consideration is:

“Whether the dying declaration/Ex.P16 on which judgment of conviction is founded is legal?”

8. It emanates from the records that though the interested witnesses and independent witnesses turned hostile to the prosecution case, the learned Sessions Judge emphasized on the evidence of one of the brothers of the deceased, PW-2, who during his examination-in- chief evidence had testified that the accused after 1 – 2 years of marriage developed bad habits like drinking, playing cards, etc. and was pressurizing the deceased to bring money from her parents and was assaulting her; he used to send her to the maternal home to get money; panchayat was convened and they had sent her back to the maternal home; during the panchayat, the brothers of the accused/CW-13 and 14 had assured to take care of the deceased and took her to the house of the accused, but accused did not take care of the deceased; she was working as a coolie and the accused used to snatch her money. On receiving information on the next day morning he went to the Hospital and was told by the deceased about the incident that the accused asked her money for his drink, when she declined, he told her that it is better for her to die and saying so, he poured kerosene and lit fire and after setting fire, he stood near the door to restrain her from moving out of the house. In that process, he sustained burns. She had also told him that about 15 days prior to the incident, he had snatched her ear studs and on the date of the incident, he had snatched her anklets. During the cross-examination, it was elicited that he is not in talking terms with his mother. He admitted the suggestion that deceased was insisting the accused to get share in the family properties and was quarreling with him in that regard, after quarrel, she used to go to her parents’ house and stay there and panchayats were convened in this regard. Neither his mother nor the deceased had told him that the accused developed bad habits and was harassing the deceased. When he went to the hospital, nobody from his family was present and deceased was not in a position to take food.

The learned Sessions Judge has drawn adverse inference against the accused from the stand taken by him during his 313 Cr.P.C. statement wherein he stated that by the time he returned home, his wife had suffered burns. The defence that the accused suffered injury while trying to save his wife was brushed aside with the reasoning that the Doctor PW-6 who had treated the accused had testified that he had not disclosed how he sustained burns and he had not shifted the injured immediately after the incident to the hospital. The evidence of Police witness that he was apprehended in his village on 12.5.2009 had its bearing while upholding the prosecution case.

9. Learned Sessions Judge was prompted to place reliance on the evidence of the Doctor/PW-25, who was present at the time of recording the dying declaration by the Tahsildar, since he had denied the suggestion that if the sedatives are given, the patient becomes drowsy and will not be mentally stable. The evidence of the Magistrate was sufficient for him to hold that the deceased was mentally fit while her dying declaration was recorded and inferred that PW-21 went on questioning and the answers given by the deceased is recorded in chronological manner and for the question No.21, she has given detailed answer in a narrative form about the incident; the dying declaration is voluntary and contains a ring of truth and none of the portion has to be excluded. Thus, dying declaration was made basis for conviction.

10. We have carefully gone through the dying declaration/Ex.P16 in the light of the fact that the evidence of family members of the deceased more particularly the mother of the deceased, the panchayatdaars, the independent witnesses and the brothers of the accused did not lend assurance to the case of the prosecution. Of course, the formal questions like her name, age, profession, etc., are recorded in question and answer form in the printed proforma. The question No.21 pertains to the motive for the incident wherein she has narrated as below and for beneficial appreciation, we reiterate in its original:

 

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Translated version of the above would be –

“I am married
for 12 years, dowry was not given during marriage and
there was no demand from them. For one year after the
marriage, my husband was cordial with me.

Subsequently, he was harassing me physically and
mentally to get Rs.5,000/- – Rs.10,000/- from my maternal
home for his drinking habit and gambling. At that time,
my parents and mother-in-law had deplored and advised
him. Thereafter he was cordial for some time. On
6.5.2009 at 5 p.m., he came home drunk, tortured me for
money for his gambling, snatched my gold studs and
silver anklet, doused me with kerosene and set fire by
saying that better I die than being alive; I shouted. My
brother-in-law Puttamadashetty and neighbours set off the
fire by pouring water and covering with blanket, they
admitted me to the Hospital at Mysore for treatment. My
husband Chikkanna Shetty is responsible for my plight;
action may be taken against him as per law.”

11. On the showing of the prosecution itself, the deceased was an illiterate, coolie with rustic background, it cannot be presumed or assumed that she would have narrated the motive for the incident as above in a sophisticated language which was not familiar to her. Had if the vital portion of the dying declaration, as answered to question No.21 was recorded verbatim in the language of the declarant and was the actual version of her statement, then same could have been acted upon dehors corroboration to record conviction. The sophisticated bookish language employed above raises reasonable doubt, as to whether declarant’s mind was translated into writing in its true sense?

12. As per Criminal Rules of Practice in the neighbouring State, the declaration should be taken down in the words of the declarant as far as possible. There is no such corresponding provision in Karnataka Criminal Rules of Practice. However, the rule of wisdom would caution that the declarant’s version shall be recorded in the language expressed by him/her.

13. The learned Sessions Judge has failed to notice the contradiction between answer to question No.21 of Ex.P16 wherein she has stated that he snatched her gold ear studs and anklet, poured kerosene on her body saying that it is better for her to die rather than to live. The statement of PW-2 on whose evidence learned Judge has placed reliance is otherwise. His evidence was silent about snatching her gold and silver ornaments before setting fire on her. If really the accused snatched her ear stud and silver anklet, unfortunately the Investigating Officer has let the same untraced. While the dying declaration is silent about the accused restraining her from moving out of the house, the statement of PW-2 was to the effect that after setting fire, the accused stood near the door of the house so as to prevent the deceased from going out of the house and in the said process, he sustained burns.

14. Leaving aside the evidence of PW-2 also, we have noticed that the case sheet pertaining to treatment given to the victim was not received in evidence though the doctor had stated that he has brought the case record to the court. Whether the said record was not marked due to oversight or for the reason that it was not convenient for the prosecution, cannot be imagined at this length of time. While the incident was of 6.5.2009, the Doctor PW-25 was examined on 18.3.2011 and he categorically stated that he is deposing on the basis of the case sheet. It is not his statement that he was the Doctor who treated the victim during her hospitalization. Thus, an important piece of evidence is lost to the court about the medication administered on the victim prior to recording of her statement Ex.P16. Another factor which catches our advertence is, as per Ex.P16, the incident occurred while accused and the deceased were in confrontation with each other. Though it is not specifically stated so, the tone of Ex.P16 is, after snatching her valuables, accused poured kerosene on her and set fire from the front, but does not correlate with the Postmortem report that “second and third degree burns present all over the body except scalp, front of the abdomen, back of the chest and abdomen and both feet”. There is some missing link between the injuries noticed in the Post Mortem and the mode, the victim suffered burns as narrated at Ex.P16. Of course, the wounds noticed on the accused unequivocally establish his presence at the spot during the incident but to say that the fatal burn injury suffered by the injured happened, due to voluntary overt act of the accused requires corroboration in view of the discrepancy noticed supra.

15. It is the trite that dying declaration is a substantive piece of evidence and can be made a basis of conviction once the Court is convinced that dying declaration is made voluntarily and is not influenced by any extraneous circumstance. But in the present case, the dying declaration not only suffers from non- corroboration but also falls short of reliability. The judgment of the Sessions Court which overlooked the dent in the case of prosecution cannot be endorsed.

16. In that view of the matter, it is in the interest of justice to extend benefit of doubt to the accused, both in respect of the charge under Sections 498A and 302 of IPC. Consequently, the impugned judgment requires to be set aside and the appellant be acquitted of the said charges.

Appeal is allowed. The judgment of conviction and sentence dated 29.7.2011 passed by the II Additional Sessions Judge, Mysore, in S.C.No.206/2009 is set aside. The appellant is acquitted of the charges under Sections 498A and 302 of IPC. He shall be set at liberty, if he is not required in judicial custody in respect of any other criminal case.

 

Sd/-
JUDGE
KNM/-

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