Allowed

Smt Lakshmamma v. the State of Karnataka

Karnataka HC25 May 2023CRL.A/1877/2019

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction for murder based on a dying declaration. The High Court allowed the appeal, holding that the dying declaration was suspicious due to uncorroborated allegations, lack of medical fitness certification, and conflicting medical records. The court acquitted the appellant as the prosecution failed to prove the victim's fitness to speak or corroborate the stat

What did the court decide?

Impugned conviction and sentence set aside; appellant acquitted of offence under Section 302 IPC and set at liberty.

Smt Lakshmamma Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2023)

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CRL.A No.1877/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MAY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL NO. 1877/2019 (C)

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BETWEEN:

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SMT LAKSHMAMMA W/O RAMANAYAK AGED ABOUT 59 YEARS OCC: COOLI R/AT HAMPASANDRA TANDA HOSUR HOBLI, GOWRIBIDANURU TALUK CHIKKABALLAPURA DISTRICT - 561 208 …APPELLANT

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(BY SRI.BALAKRISHNA M R, ADVOCATE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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THE STATE OF KARNATAKA BY GOWRIBIDANURU RURAL POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU - 560 001 …RESPONDENT

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(BY SMT.RASHMI JADHAV, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 10.09.2015 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA IN S.C.NO.71/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the order of conviction and sentence passed

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against her, the accused in SC No.71/2013 on the file of the Prl. District and Sessions Judge, Chickballapur has preferred this appeal.

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The appellant was the sole accused in SC

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No.71/2013 before the trial Court. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.

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The accused was prosecuted in SC No.71/2013 for the charge for the offence punishable under Section 302 of IPC on the basis of the charge sheet filed by Gowribidanur Rural Police in Crime No.205/2012 of their Police Station. Crime No.205/2012 was initially registered for the offence punishable under Section 307 of IPC on the basis of the alleged dying declaration as per Ex.P7 given by injured Shobhabai, w/o Thimma Naika. She died on 25.09.2012. Therefore, the case was converted from 307 to 302 IPC. The case of the prosecution in brief is as follows:

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i) The accused is the aunt of deceased Shobha bai. PW.1 is the son of deceased Shobha bai. PW.3 is the fostered

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son of the deceased. PW.2 is the wife of PW.3. PW.4 is the neighbour of the deceased and PW.5 is resident of the same village. There was illwill between the accused and the deceased due to some land disputes between them. About 3 days prior to the incident i.e., on 21.09.2012 PW.1, who was working in Bengaluru had given Rs.5,000/- to the deceased. She had given that to PW.2. On the date of incident, the deceased asked PW.2 to return Rs.5,000/-. PW.2 returned only Rs.4,000/- and said that somebody has stolen the balance of Rs.1,000/-.

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ii) On 21.09.2012 at 9. p.m. the deceased was abusing the persons who have stolen Rs.1,000/-. The accused picked up quarrel saying that the deceased is abusing her only and with an intention to commit her murder poured kerosene oil on the deceased and set her ablaze. The victim suffered burn injures and raised alarm. Listening to her commotion PW.1 and Tulsi Naika S/o Rama Naika rushed to the spot and put off the fire. She was shifted to Gowribidanur hospital. PW.8 gave her preliminary treatment. When she was being treated in the said hospital, on receiving the information PW.6 the head constable of Gowribidanur Rural Police Station visited

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the hospital and recorded the statement of the victim as per Ex.P7 in the presence of PW.8.

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iii) On the basis of Ex.P7 he registered the FIR Ex.P8 in Crime No.205/2012 for the offence punishable under Section 307 of IPC. He visited the spot, conducted spot mahazar and when he was investigating the matter, on 26.09.2012 PW.1 appeared before the Investigating Officer and gave statement as per Ex.P1 reporting the death of Shobha Bai. Based on that he converted the case from 307 of IPC to 302 IPC. PW.6 conducted part of the investigation and handed over further investigation to PW.7. PW.7 on partly conducting the investigation handed over to PW.9, PW.9 conducted further investigation and filed the charge sheet.

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The trial Court on hearing the parties framed the charge against the accused for the offence punishable under Section 302 IPC. The accused denied the charge and claimed trial. Therefore, the trial was conducted. In support of the case of the prosecution, PWs.1 to 11 were examined, Exs.P1 to 14 and M.O.1 were marked. After her examination under Section 313 Cr.P.C. the accused did not file any defence statement nor lead any defence evidence.

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The trial Court on hearing the parties by the

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impugned judgment and order convicted the accused for the charge for the offence punishable under Section 302 IPC and sentenced her to life imprisonment and fine of Rs.3000/-, in default to pay fine amount to undergo rigorous imprisonment for one year.

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The trial Court held that though PWs.1 to 4 the material witnesses turned hostile, Ex.P7 the dying declaration of deceased was found to be unimpeachable. The trial Court further held that since dying declaration is proved to the satisfaction of the Court, the conviction can be based solely on the dying declaration. Challenging the said judgment and order of conviction and sentence the accused is before this Court.

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Submissions of Sri M.R.Balakrishna, learned counsel for the appellant:

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In Ex.P7 the alleged dying declaration and in Ex.P11 the Medico Legal Case register extract, there are many unexplained alterations. In Ex.P7 the doctor has not certified the fitness of the victim to give statement. As per PW.8 the victim had suffered 80% to 90% burns. The alleged eye

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witnesses PWs.1 to 5 and 10 who are the close relatives of the

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deceased herself did not support the case of the prosecution that the burns were homicidal one. As against that they claimed that the deceased suffered burns due to electrocution and thus they were accidental burns. The evidence of PWs.6 and 8 regarding recording of the dying declaration Ex.P7 was unreliable. There was no evidence in proof of the fitness of the victim. The victim died after 4 days of the incident, no efforts were made to get her statement recorded by Executive/Judicial Magistrate. Under the circumstances the trial Court committed grave error in convicting the accused solely based on Ex.P7 accepting the evidence of PWs.6 and 8.

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In support of his submissions, he relies on the

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following judgments:

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1) Jayamma & Anr. Vs. State of Karnataka¹

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2) Paparambaka Rosamma and Ors. Vs. State of A.P.²

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3) Surinder Kumar Vs. State of Haryana³

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4) K.Ramachandra Reddy and Anr. Vs. The Public Prosecutor⁴

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5) Rasheed Beg and Ors. Vs. State of M.P.⁵

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1 (2021)6 SCC 213

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2 (1999) 7 SCC 695

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3 2012 AIR SCW 494

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4 AIR 1976 SC 1994

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5 AIR 1974 SC 332

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Submissions of Smt.Rashmi Jadhav, learned HCGP for respondent:

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There is no mandate that dying declaration shall be recorded by the Executive/Judicial Magistrate and the same shall be in the question and answer form. The victim died after five days of the incident. The statement was recorded on the date of the incident itself. Though PW.8 did not certify the fitness of the victim in Ex.P7, during the course of the statement she said that she was in a fit condition to give the statement. There was no reason to disbelieve her fitness. Certification of the fitness on the dying declaration is not mandatory. PWs.1 to 5 and 10 might have been turned hostile for several reasons. But the same PW.1 had given statement as per Ex.P1 before the police. That goes to show that after the death of victim they have turned hostile for mysterious intervening reasons. PWs.6 to 9 had no animosity or ill will against the accused to falsely implicate her. Therefore the trial Court rightly relied on their evidence and convicted the accused. The said judgment does not warrant interference of this Court.

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In support of her submission she relies on the

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following judgments:

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1) Dhan Singh Vs. State of Haryana⁶

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2) The State of Jharkhand Vs. Shailendra Kumar Rai @ Pandav Rai⁷

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Having the regard to the rival submissions and the material on record, the question that arises for consideration

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is:

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i) Whether the trial Court committed illegality and perversity in convicting the accused for the offence punishable under Section 302 of IPC ?

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Analysis

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There is no dispute that the deceased is the mother of PW.1 and the accused is the aunt of the deceased. It is also not disputed that PW.3 is the fostered son and PW.2 is his wife and they were residing with the deceased. As per the prosecution itself PW.1 was working in Bengaluru during the relevant period. The case of the prosecution is that there were land disputes between the deceased and the accused and therefore accused had grudge against the deceased.

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6 (2010) 12 SCC 277

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7 AIR 2022 SC 5393

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The other cause for commission of the offence

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according to the prosecution is that PW.1 had given Rs.5,000/to PW.2-Reethamma and out of that Rs.1000 was stolen by somebody. On learning that, the victim was abusing the thief. In the background of previous illwill and under the impression that the deceased is abusing her only, on 21.09.2012 at 9.00 p.m. the accused poured kerosene on the victim and set her ablaze. According to the prosecution the incident was witnessed by PWs.1 to 5, the victim in that regard gave statement Ex.P7 to Gowribidanur hospital.

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The case of the prosecution is based on:

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i) The circumstance of motive; ii) The evidence of PWs.1 to 5 the eyewitnesses; iii) The dying declaration Ex.P7 said to have been given by the victim;

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iv) The evidence of PW.10 inquest Mahazar witness;

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v) The evidence of PWs.8 and 11 the doctors who treated the victim in Gowribidanur Hospital and conducted postmortem examination in Victoria Hospital respectively; and

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vi) The evidence of Police Officers PWs.6, 7 and 9.

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Reg: Cause of death .

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As per the evidence of PW.11 the doctor who conducted post-mortem examination and issued Ex.P12 postmortem report, victim died due to septicemia as a result of burn injuries sustained by her. Therefore even as per the prosecution’s own case the burns were not the direct cause of death. But, it was septicemia the secondary cause which led to the death. On that issue there is no dispute between the parties. Therefore the evidence of PW.11 is formal.

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Reg: Motive

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To substantiate the allegation of motive the

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prosecution relied on the evidence of PWs.1 to 5. PWs.1 to 5 totally turned hostile and denied the allegation that they have given any statement regarding the alleged land dispute between the accused and the deceased. Even in Ex.P1 the alleged complaint by PW.1 there is no whisper about any dispute or the accused pouring kerosene, setting the deceased ablaze in connection with loss of money or the deceased abusing the thief for such loss of money. Therefore the prosecution absolutely failed to prove the motive circumstance.

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Reg: Commission of Crime by the accused

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To prove the fact that on 21.09.2012 at 9.00 p.m.

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the accused in front of her house in Shravandahalli village poured kerosene on the victim and set her ablaze, the prosecution relied on the evidence of PWs.1 to 5 the alleged eye witnesses and the dying declaration Ex.P7. The eye witnesses who are the close relatives of the deceased herself totally turned hostile to the case of the prosecution. They contended that on 21.09.2012 there was Ganesha Festival celebration in their village and there were lighting arrangements, on that day there was electrocution, thus she suffered the injuries. It was vehemently contended that PW.1 himself gave the complaint Ex.P1 implicating the accused and later he has turned hostile to help the accused.

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Learned HCGP relying on the judgment of the Hon’ble Supreme Court in Shailendra Kumar Rai ’s case referred to supra submits that even the Supreme Court has taken note of the fact that witnesses turn hostile for several reasons. Therefore, this Court has to hold that the witnesses have turned hostile for some obvious reasons. It is true that in para 53 of the said judgment referring to its earlier judgment,

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the Hon’ble Supreme Court has set down the circumstance

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under which the witnesses may turn hostile. The grounds noted

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therein are;

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i) Threat or intimidation;

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ii) Inducement;

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iii) Use of muscle and money power;

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iv) Use of stock witnesses;

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v) Protracted trials; and

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vi) Hassles faced by the witnesses during investigation and trial.

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In the cross examination of PWs.1 to 5 the prosecution did not suggest any of those grounds to PWs.1 to 5 for they turning hostile. As against that it was suggested that since the accused is related to them to help her they are deposing falsely which they denied.

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So far as PWs.2 to 5 it was suggested that they have entered into compromise with the accused, therefore they are deposing falsely which they have denied. In fact the deceased was the near and dear one of PWs.1 to 3, but nothing was elicited to show that despite such close relationship, they preferred to save the accused, at the cost of losing their own mother/mother-in-law. So far as PW.1 filing the complaint

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Ex.P1, he disowned that Ex.P7 & FIR Ex.P8 shows that by the time Ex.P1 was allegedly given, the law was already set into motion. In one case there cannot be two First Information Reports. Therefore Ex.P1 amounts to the statement made before the Investigating Officer under Section 161 of Cr.P.C. which is inadmissible in evidence under the law. Therefore, no sanctity can be attached to Ex.P1. For the aforesaid reasons the evidence of PWs.1 to 5 eye witnesses fail.

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As per the prosecution, PWs.4 and 5 were the neighbour and resident of the village of the deceased. It becomes hard to accept that neighbour rather prefers to keep murderer by his side at the cost of death of another neighbour or he gains anything by deposing falsely. PWs.4 and 5 gained nothing by the alleged compromise with the accused. There is nothing on record to show that accused, a lady aged 55 years in rural area was in a position to either intimidate the witnesses or induce them. It is not even the case of prosecution that she had any wealth to influence the prosecution witnesses.

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So far as PW.10, he had allegedly given statement during inquest mahazar implicating the accused who is also the relative of the deceased. He denied having given any such

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statement. Even in his cross examination the only suggestion

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by the prosecution was, he has compromised with the accused and therefore he was deposing falsely, which he denied. The same analogy applies to his evidence also and the contention that the witnesses were tampered by the accused, cannot be accepted.

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Reg: Dying declaration.

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The other evidence that remained for the prosecution is Ex.P7 dying declaration of the victim. Soon after the incident the deceased was taken to Gowribidanur Hospital and her statement Ex.P7 was recorded by PW.6 in the presence of PW.8 the doctor. It is the contention of the accused that the victim was not in a fit condition to give the statement. To prove that victim was in a fit state to give statement, the prosecution did not produce her medical case sheet. As per the prosecution itself the victim’s condition was not manageable at Gowribidanur Hospital. Therefore, she was referred to Victoria Hospital and she died on 25.09.2012 at 3.30 p.m. i.e., within four days after the incident. To show that she was in a fit state the medical records of the Victoria Hospital were also not collected and produced in the case nor the doctors who treated

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the victim in Victoria Hospital were cited as charge sheet witnesses.

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Coming to Ex.P7, according to PW.6 the doctor told that the victim had suffered 60% burns. Whereas PW.8 the Doctor himself states that victim had suffered 80% to 90% burns. The doctor does not depose the degree of burns. Apparently Ex.P7 does not bear the certification of PW.8 on it regarding the fitness of the victim to give statement. Ex.P12 the post-mortem report and the evidence of PW.11 the victim had suffered the following external injuries:

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“External injuries:- Infected burns injuries present over face in patches , both upper limbs in patches including palms front and back of chest in patches front and back abdomen in patches, both lower limbs in patches except feet. Sinking of hairs present over scalp hairs, eyebrows and eyelashes. Pockets of pus present over chest of the burnt injuries.”

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Even according to Ex.P7 and the evidence of PW.6, the victim’s left thumb was burnt. Therefore, the impression of her middle finger was taken. As per the entries in Ex.P11 MLC register extract, when she was brought to the hospital the victim had suffered 80% to 90% burns. Ex.P11 further shows that she was kept on Intravenous fluids and she was administered some

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drugs. In Ex.P11 while recording history of burns the date is altered from 21.09.2012 to 22.09.2012. As per the prosecution the accused inflicted burn injuries on 21.09.2012 at 9.00 p.m. But in Ex.P11 the date is corrected as 22.09.2012. The entry of time of admission into the hospital is also corrected from 11.30 p.m. to 12.30 a.m. and again 00.30 is mentioned. The names of assailants were shown as Umdevi, Laxmamma, Tulsinayaka and Naveen. Ex.P11 states that the victim was brought by PW.1. If really the victim had given the said statements in Ex.P7 the aforesaid four persons should have been shown as the assailants.

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Reading of Ex.P7 shows that the time of offence was initially written as night seven hours and that was altered as nine. When Ex.P11 shows that Tulasinayaka is the culprit, in Ex.P7 it is stated that Tulasinayaka on hearing her cries came and rescued her. In Ex.P7 initially the age of the victim is mentioned in the top portion as 35 years and the same is corrected as 39 years. Having regard to the aforesaid infirmities and doubtful circumstances, it was incumbent for the Investigating Officer to collect the case sheet of the victim from

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the Gowribidanur hospital as well as from Victoria hospital to

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show that she was fit to give statement.

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Having regard to such infirmities and alterations in Ex.P7 there is much force in the submissions of the Counsel for the accused/appellant that the Investigating Officer should have got recorded the statement of the victim atleast subsequently through the Executive/Judicial Magistrate. Despite she surviving for four days thereafter such attempt was not made by the Investigating Officer. There cannot be any dispute with regard to legal position that the dying declaration can be the sole basis for placing conviction of the accused provided such dying declaration should be clear, cogent and trustworthy and that should inspire confidence of the Court.

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In para 41 of the judgment in Shailendra Kumar

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Rai ’s case relied on by learned HCGP herself, the Hon’ble Supreme Court held that as follows:

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“41. There is no rule to the effect that a dying declaration is inadmissible when it is recorded by a police officer instead of a Magistrate. Although a dying declaration ought to ideally be recorded by a Magistrate if possible , it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the

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police is admissible must be decided after considering the facts and circumstances of each case .”

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(Emphasis supplied)

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Therefore, there is no fundamental rule that the moment there

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is any dying declaration, the accused shall be convicted based on that. The prosecution has to prove by cogent and consistent evidence that the victim was fit to give statement and she has given such statement. Those conditions were not established in this case. Further the same was not corroborated by the evidence of alleged eye witnesses or PW.10. The trial Court without proper evaluation of the evidence only on the ground that dying declaration can be the sole ground for conviction proceeded to convict the accused.

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Perusal of the judgments relied on by Trial Court shows that in those cases there was certification about the fitness of the victim to give statement and there was evidence to corroborate such dying declaration. The trial Court without noticing the facts of those cases convicted the victim by omnibus application of those judgments which is incorrect.

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The judgment in Dhan singh ’s case relied on by the learned HCGP shows that even in that case the dying

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declaration was recorded after the doctor declaring the victim fit to make the statement. Therefore, the said judgment also cannot be justifiably applied to the facts of the present case.

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In the similar circumstances, the Hon’ble Supreme Court in Jayamma ’s case referred to supra held that unless the medical condition/fitness of the victim is established, where the victim’s own close relatives deny the homicidal burns the dying declaration cannot be relied. In the similar circumstance, the Hon’ble Supreme Court disbelieved the dying declaration on eight grounds, two amongst them were victim being illiterate, old aged and her fitness to give statement not being established and her own relatives denying the homicidal burns and claiming the burns as suicidal burns.

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In this case also, as already observed, the victim’s fitness to give statement was not established, withholding her medical case sheet. There were several alterations in dying declaration and MLC register entries. More over the names of assailants did not match with MLC history recorded in MLC register.

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The Hon’ble Supreme Court in the judgment in Paparambaka Rosamma’s case relied on by the learned

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counsel for the appellant disbelieved the dying declaration on

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the ground that the victim had suffered 90% burns and the certification of the doctor was only about the consciousness of the victim and not about her fitness to give statement. In that case the doctor had certified at the end of the dying declaration that the patient was conscious while recording the statement. In the case on hand there is not even such certification. It is only said that the statement was recorded before the doctor/PW.8.

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In para 6 of the judgment in Ramachandra

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Reddy ’s case the Hon’ble Supreme Court held that while great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It was further held that the Court must be satisfied that the deceased was in a fit state of mind to make the statement and the dying declaration is true and voluntary.

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In Rasheed Beg ’s case relied on by the learned counsel for the appellant it was held that the dying declaration recorded under the suspicious circumstances should not be acted upon without corroborative evidence. In this case also, the evidence discussed above shows that the dying declaration was shrouded with suspicion. Therefore, that required corroboration. But, PWs.1 to 5 and 10 the alleged eye witnesses did not corroborate the same.

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The trial Court in relying on such suspicious dying declaration, acted contrary to the other evidence on record and the aforesaid judgments of the Hon’ble Supreme Court. Therefore, the impugned judgment and order of conviction and sentence is not sustainable in law. Hence the following:

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ORDER

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i) The appeal is allowed.

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ii) The impugned judgment and order of conviction

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and sentence dated 10.09.2015 passed by the Prl. District and Sessions Judge, Chikkaballapur in SC NO.71/2013 is hereby set aside.

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iii) The appellant/accused is acquitted of the charge for the offence punishable under Section 302 of IPC.

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