Allowed

Anant S/O. Mahadev Gouda v. the State of Karnataka

Karnataka HC8 Oct 2020CRL.A/2527/2012

Case brief

AI extract

What is this about?

Criminal appeal challenging conviction under Section 304 IPC for causing death by burning. High Court found dying declarations unreliable due to delay and lack of medical verification regarding victim's conscious state. Appeal allowed, conviction set aside, and accused acquitted.

What did the court decide?

Impugned judgment set aside; accused acquitted under Section 304 IPC; bail bonds cancelled; fine refunded.

Anant S/O. Mahadev Gouda Vs the State of… — Murder and Culpable Homicide | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 08^TH DAY OF OCTOBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL.A. NO. 2527 OF 2012

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BETWEEN:

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ANANT S/O. MAHADEV GOUDA AGE: 34 YEARS, OCC: AGRICULTURIST R/O. B.K. HALLI, TQ: HALIYAL, DIST: KARWAR. ….APPELLANT

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(BY SHRI.SRINAND A PACHHAPURE, ADV.)

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AND

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THE STATE OF KARNATAKA THROUGH C.P.I. HALIYAL P.S., NOW REP. BY SPP. ... RESPONDENT

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(BY SMT.SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND ORDER OF SENTENCE DATED 07.12.2010 PASSED BY THE P.O. FAST TRACK COURT, SIRSI, IN S.C.NO.68/2009, FOR THE OFFENCES P/U/S 304 OF IPC AND ACQUIT THE APPELLANT.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by the sole accused in SC No.68/2009 on the file of Fast Track Court Sirsi, at Sirsi, wherein he is convicted for the offence punishable under Section 304 of IPC.

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Heard the learned counsel for the appellant and learned HCGP for the respondent – State.

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Brief facts: deceased Savita is the wife of the

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accused. Her marriage was solemnized about 2½ years prior to the date of incident. In their wedlock, she had a son aged about one year. Deceased was living in her matrimonial house along with her husband, son, parents-in-law and brothers-in-law. On 03.09.2009 there was a quarrel between the deceased

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and her mother-in-law regarding heating of milk. Her

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husband as well as her mother-in-law abused her. Again on 04.09.2009 at about 8.00 a.m., her mother-

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in-law abused her stating she is not serving Tea to her. When the deceased tried to answer her motherin-law, the accused abused her as to why she is arguing with his mother and told her to go out of the house if she is not willing to stay with them. The deceased objected to the same. At that time, the accused brought a kerosene-can and at the instigation of his mother, poured kerosene and set fire to her. Thereafter, the accused put off the fire and took her to the hospital.

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On receiving the intimation, PW.11-P.S.I of Haliyal Police Station visited the hospital. Since the deceased was unconscious, he could not record her statement and he once again visited the hospital on the next day i.e. on 05.09.2019 and after confirming with the doctor about her physical and mental condition to give the statement, he recorded her statement as per Ex.P.11 and registered a case in

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Crime No.113/2009 under Sections 498A, 307, 109 read with Section 39 of IPC against accused Nos. 1 and 2. On the same day, at about 9.45 p.m, the statement of the deceased was recorded as per Ex.P.12 by the Taluka Executive Magistrate. On 06.09.2009 PW.11 visited the spot and conducted spot mahazar as per Ex.P3 and seized M.Os.1 to 6. On the same day he arrested the accused. The deceased succumbed to the burn injuries sustained by her on 13.09.2009 at about 8.45 p.m. in the hospital. Thereafter, investigation was taken over by PW.10, who on completion of investigation filed charge sheet against the accused-appellant under Section 304 of IPC.

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The accused was charged under Section 304

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of IPC to which he pleaded not guilty and claimed to be tried. Before the trial Court, the prosecution got

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examined PWs.1 to 11 and got marked exhibits Ex.P1 to P12 and M.Os. 1 to 6.

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The learned Sessions Judge after considering the oral and documentary evidence on record convicted the accused for the charged offence and sentenced him to undergo simple imprisonment for a period of five years with fine of Rs.5,000/-, in default of payment of fine, to further undergo S.I. for a period of six months.

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The learned counsel for the appellant has vehemently contended that the material witnesses have turned hostile and they have not supported the prosecution case. The doctor who made an endorsement in Ex.P11 and the Taluka Executive Magistrate who recorded the dying declaration of the deceased as per Ex.P12 have not been examined. The deceased has sustained 80% of injuries and from the

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material on record it cannot be said that she was conscious and in a position to give her statements as per Ex.P11 and Ex.P12. There are no medical records produced by the prosecution regarding the treatment given to the deceased for a period of 10 days till she breathed her last. The oral dying declaration stated to have made before PW.7 and PW8 is not believable. The said witnesses are closely related to the deceased. At the time of incident accused was not present in his house. He has clearly stated in his statement recorded under Section 313 of Cr.P.C. that he was in his land along with his brothers and mother, and immediately after receiving the information he rushed to the house and shifted the injured to the hospital. The learned counsel further submits that the trial Court without appreciating the entire evidence in its proper perspective has erroneously convicted the

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accused; therefore seeks to set aside the impugned judgment and allow the appeal.

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Per contra, the learned HCGP has contended that Exs.P11 and P12 are the dying declarations wherein, the victim has clearly stated that it is her husband who poured kerosene and set fire to her. She contends that the deceased has made oral dying declaration before PWs.7 and 8. The said witnesses have supported the case and their evidence corroborates Exs.P11 and P12. The medical evidence also shows that the deceased was in a fit condition to give her statement and therefore she submits that the conviction is based on the conclusive nature of the evidence adduced by the prosecution and seeks to dismiss the appeal.

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The prosecution has examined P.Ws 1 to 11

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to establish the guilt of the accused. Among the said

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witnesses PWs.1, 2 and 9 have not supported and they have turned hostile. PWs. 3 and 6 are the panch witnesses to Ex.P3 under which MOs.1 to 6 were seized. PW.4 is the inquest panch. Inquest mahazar is marked as Ex.P4. PW.5 is the doctor who has conducted the postmortem. Ex.P5 is the postmortem report. PW.7 is the mother of the deceased and PW.8 is the cousin of the deceased. PW.10 is the investigating officer who laid charge sheet. PW.11 is the PSI who recorded the statement of the deceased as per Ex.P11 and registered the case. He conducted the spot mahazar-Ex.P3.

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According to the prosecution on hearing the

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hue and cry of the deceased, neighbors namely PWs.1, 2 and 9 came to the spot and they saw the deceased with burn injures. On enquiry, deceased told them that it is the accused who poured kerosene and set fire to her. PWs.1, 2 and 9 have not

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supported the prosecution case. Except saying that they have seen the deceased with burn injuries, their evidence is not helpful to the prosecution.

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The incident has taken place at about 8.00 a.m on 04.09.2009. It is the case of prosecution that the victim was shifted to the Government Hospital, Haliyal. PW.11 has stated that on 04.09.2009 at 11.15 a.m. on receiving the intimation, he went to the hospital along with Head Constable-1143. The injured was not in a position to speak. The doctor informed him in writing that the victim was not in a position to speak and therefore on 05.09.2009 at about 6.00 p.m., he once again went to the hospital. After confirming from the doctor that the victim is conscious and oriented, he recorded her statement as per Ex.P11. Thereafter, he sent intimation to the Taluka Executive Magistrate to record the statement of the victim. On 06.09.2009, he visited the sport and

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conducted spot mahazar as per Ex.P3 under which M.Os.1 to 6 were seized. He has stated that on 10.09.2009 he received the dying declaration recorded by the Taluka Executive Magistrate, marked as Ex.P12.

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It is not in dispute that Savita died on account of burn injuries sustained by her. The prosecution is relying on her dying declarations namely Exs.P11 and P12 and the evidence of PWs.7 and 8. It is relevant to see that the incident took place at about 8 a.m on 04.09.2009. On receiving the intimation from the hospital at about 11.15 a.m., PW.11 visited the hospital. As per the evidence of PW.11, deceased was not in a position to give her statement on 04.09.2009 when he visited the hospital. He has clearly stated the doctor gave in writing that the deceased was not in a position to talk. Ex.P11 came into existence on 05.09.2009

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between 6 a.m. to 7 p.m. PW.11 in his crossexamination has stated that when Ex.P11 was recorded, one doctor namely Kiran Kulkarni was present. He has stated that on 05.09.2019 he has not taken any certificate from the said doctor that the victim is in a position to speak.

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It is pertinent to see that PW.11 has made a requisition to the doctor on 06.09.2009 to ascertain the condition of the victim to give her statement for further enquiry. If the victim was conscious and oriented on 05.09.2019 and her statement was already recorded on that day as per Ex.P11, then there was no reason for PW.11 to give a requisition to the doctor on 06.09.2009 to know the condition of the patient. In the said requisition which is marked as Ex.P6, there is an endorsement made by the doctor on 07.09.2009 that the victim is in a stable condition to give her statement. However, no statement has been

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recorded subsequent to 07.09.2009 though she was alive till 13 . 09.2009.

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According to the prosecution, the Taluka Executive Magistrate recorded the dying declaration of the victim as per Ex.P12. The said dying declaration was recorded on 05.09.2009 at about 7.30 p.m., in the presence of doctor. Both Exs.P11 and P12 are recorded in the presence of doctor – Kiran Kulkarni. The said doctor has not been examined by the prosecution.

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As already discussed, in Ex.P6, PW.5 has made an endorsement saying that the deceased is in a fit condition to give her statement. The said endorsement is made on 07.09.2009. As already observed, subsequent to 07.09.2009 statement of the deceased has not been recorded even though an endorsement is made by the doctor regarding the fit

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condition of the victim to give her statement. The doctor who made the endorsement in Ex.P11 and Ex.P12 and the Taluka Executive Magistrate who recorded Ex.P12 are not examined by the prosecution.

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A careful perusal of the evidence of PW.7 and PW.8 go to show that, when they visited the hospital, deceased was not conscious and she was not in a position to speak. They have stated that on the next day when they enquired with the deceased, she informed them that there was a quarrel between her mother-in-law and herself and therefore her husband poured kerosene and set fire to her. PW.7 is the mother and PW8 is the cousin of the deceased. They are the close relatives of the deceased. When they have stated that the deceased was not in a fit condition to speak on the previous day then it is difficult to believe their evidence that on the next day

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when they enquired the deceased, she informed that the accused poured kerosene and set fire to her. In Ex.P6, doctor has endorsed on 07.09.2009 that the victim is oriented and in a position to give her statement, which raises a reasonable doubt that till 07.09.2009 the victim was not in a position to give any statement. If that is so, the evidence of PWs.7 and 8 that the victim made a statement before them on the next day of admitting to the hospital is difficult to believe. Admittedly, the victim has sustained about 80% burn injuries. The prosecution has not placed any medical records to show as to what was the treatment given to the victim immediately after her admission to the hospital till she succumbed to the burn injuries.

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In the statement of accused recorded under Section 313 of Cr.P.C., he has stated that on 04.09.2009 when he was in his land along with his

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brothers and mother at about 8.00 a.m., he was informed by someone that his wife has sustained burn injuries. So he immediately rushed to the house. At that time she was unconscious. He shifted her to the hospital and she did not regain her conscious till her death. PW.2 is an independent witness. According to her when she heard the cry of the deceased, she rushed to her house and saw the deceased in the backyard of the house with burn injuries. They poured water and changed her clothes. Thereafter, the accused came and shifted her to the hospital. Her evidence goes to show that the accused was not present at the time of incident and he came subsequently and shifted the victim to the hospital.

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A dying declaration is no doubt considered credible and trustworthy evidence. A true and voluntary declaration needs no corroboration. From the percentage of burns, no inference can be drawn

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that the victim could not have been capable of making the statement. Certificate from the doctor is also not a requirement in law. However, it is necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubt and that it was recorded when the victim was in a fit state of mind. The prosecution must establish convincingly that the victim was conscious, well oriented, physically and mentally capable of making the dying declaration.

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In the instant case the dying declaration recorded as per Exs.P11 and P12 are not free from doubt. A reasonable doubt arises as to whether the injured was in a fit disposing state of mind at the time when Exs.P11 and P12 are recorded. Therefore, the

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same does not inspire the confidence of the Court.

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The trial Court has placed reliance on Exs.P11 and P12 and the evidence of PWs.7 and 8, to

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convict the accused for the offence punishable under Section 304 of IPC. However, for the foregoing reasons, I am of the view that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. Hence, the following.

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ORDER

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a) Appeal is allowed.

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b) The impugned judgment and order dated 07.12.2010 passed in SC No.68/2009 on the file of Fast Track Court Sirsi, at Sirsi is hereby set aside.

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c) Accused is acquitted of the offence under Section 304 of IPC.

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d) His bail bonds stands cancelled.

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e) Fine amount if already deposited, shall be refunded.

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Sd/JUDGE

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lad

Anant S/O. Mahadev Gouda v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Anant S/O. Mahadev Gouda v. the State of Karnataka

Case brief

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What did the court decide?

What the court decided

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