Allowed

Gangadhara v. the State of Karnataka

Karnataka HC5 Nov 2024CRL.A/59/2018

Case brief

AI extract

What is this about?

Husband convicted under Sections 498A and 302 IPC for burning his wife to death appealed against conviction resting mainly on two dying declarations. The High Court found both declarations doubtful due to non-examination of the doctor and scribes, timing inconsistencies, and hostile eyewitnesses, and acquitted him.

What did the court decide?

Conviction and sentence set aside; appellant acquitted of Sections 498A and 302 IPC; jail authorities directed to release him forthwith.

Gangadhara Vs the State of Karnataka — Dowry and Cruelty | Karnataka HC (2024)

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NC: 2024:KHC:44512-DB CRL.A No. 59 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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CRIMINAL APPEAL NO. 59 OF 2018 (C)

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BETWEEN:

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GANGADHARA S/O THAYARAPPA AGED ABOUT 40 YEARS, LABOURER R/O MUGALIKOPPA VILLAGE, SHIKARIPURA-577427.

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…APPELLANT

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(BY SRI. P.D.SUBRAHMANYA, ADVOCATE)

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AND:

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Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY SHIRALAKOPPA POLICE, REPRESENTED BY PUBLIC PROSECUTOR SHIVAMOGGA-577 427.

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…RESPONDENT

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(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 16.03.2017 AND SENTENCE DATED 18.03.2017 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.72/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 498(A) AND 302 OF IPC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and

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HON'BLE MR JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE RAJESH RAI K)

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This appeal filed by the convicted accused is directed against the judgment of conviction and order of sentence dated 16.03.2017 and 18.03.2017, respectively, passed in S.C.No.72/2015 by the Court of II Additional District and Sessions Judge, Shivamogga, wherein the learned Sessions Judge has convicted the accused for the offences punishable under Sections 498A and 302 of IPC and sentenced him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5,000/- for the offence punishable under Section 498A of IPC and in default, to undergo simple imprisonment for a period of six months. Further, he sentenced to undergo imprisonment for life and to pay a fine of Rs.60,000/- for the offence punishable under Section 302 of IPC and in default, to undergo simple imprisonment for a period of six months.

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The factual matrix of the prosecution case is as

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follows:

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The accused in this case is the husband of deceased Renukamma. They got married about 6 years prior to death of the deceased. It is further case of the prosecution that about four years prior to the incident, the accused and the deceased were led happy marital life and since two years i.e., prior to death of the deceased, the accused started to harass the deceased Renukamma both physically and mentally by consuming alcohol. It is also the case of the prosecution that the accused was harassing the deceased for the reason that she does not know to cook properly. This being the scenario, on 01.10.2014 at about 8.30 p.m., when the deceased Renukamma was in the kitchen of her house, the accused came home by consuming liquor and when the deceased served food to him, he asked her what is there apart rice. At that time, the deceased replied that he was not earning properly and not providing money to cook varieties of foods. Enraged by the said answer, the accused abused her in filthy language and dragged her to backyard of his house and with an intention to commit her murder, he brought kerosene Can from the kitchen and poured kerosene on her and set her blaze. As a result, the deceased sustained grievous burn injuries and cried for help. At that time, neighbours came and shifted her to Shiralakoppa

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Hospital and thereafter, to Mc.Gann Hospital for higher treatment. She was admitted in the said Hospital as inpatient. Subsequently, on 02.10.2014, PW.19 i.e., PSI, Shiralakoppa received the information about the burn injuries sustained by the deceased Renukamma and accordingly, he visited Mc.Gann Hospital, Shivamogga at about 12.45 p.m. on the same day and recorded her statement as per Ex.P31 and registered FIR against the accused for the offences punishable under Sections 498A and 307 of IPC in Cr.No.253/2014 as per Ex.P33. Subsequently, PW.19 sent a requisition to Taluk Executive Magistrate i.e., PW.21 as per Ex.P32 for recording the dying declaration of injured Renukamma. Accordingly, PW.21 visited the Hospital and recorded the dying declaration of the deceased as per Ex.P41. Thereafter, PW.19 drawn spot mahazar as per Ex.P1, seized Mo.1 to Mo.5 in the spot, recorded statement of all the material witnesses and later, on 08.10.2014 at about 3.00 p.m., arrested the accused. In the meantime, the injured Renukamma died in the Hospital on 08.10.2014 at about 10.30 a.m. Hence, PW.19 sent a requisition to Jurisdictional Magistrate to invoke Sections 302 and 504 of IPC in Cr.No.253/2014 as per Ex.P35. After obtaining such permission, Sections 302 and 504 of IPC have been invoked.

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Subsequently, PW.20-Police Inspector conducted the further investigation. He recorded the statement of the material witnesses and laid charge sheet against the accused for the offences punishable under Sections 498A, 302 and 504 of IPC before the Committal Court.

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After committal of the case before the learned

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Sessions Court, the learned Sessions Judge framed the charges against the accused for the aforesaid offences. However, the accused denied the charges and claimed to be tried.

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In order to prove the charges levelled against the accused before the trial Court, the prosecution examined in total 22 witnesses i.e., PW.1 to PW.22 and got marked 42 documents as per Exs.P1 to P42 and also got identified 5 material objects as MO.1 to MO.5. However, the accused not examined any witness on his behalf.

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After completion of the prosecution evidence, the

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learned Sessions Judge recorded statement under Section 313 of Cr.P.C., wherein the incriminating portion of the evidence read over to the accused and the accused denied the same. The

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defence of the accused is one of total denial and that of false implication.

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After assessment of the oral as well as documentary evidence available on record, the learned Sessions Judge convicted the accused for the offences punishable under Sections 498A and 302 of IPC and sentenced him as stated supra. The said judgment is challenged under this appeal.

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We have heard Sri P.D.Subrahmanya, learned standing counsel, for High Court Legal Services Committee, appearing for the appellant so also Sri Vijayakumar Majage, learned SPP-II for the respondent-State and perused the records i.e., the impugned judgment and the record secured from the trial Court.

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Sri.P.D.Subrahmanya, learned counsel for the appellant that the judgment and sentence challenged under this appeal suffers from perversity and illegality. The learned Sessions Judge has failed to appreciate the evidence on record in a right perspective. He would further contend that the eye-witnesses to the incident i.e., PW.4, PW.5 and PW.7 are totally turned

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hostile to the prosecution case. Nevertheless, the family members of the deceased i.e., PW.12, PW.13, PW.14 and PW.16 also turned hostile to the prosecution case. As such, the prosecution totally relied on the statement of the deceased recorded as per Ex.P31 and dying declaration as per Ex.P41. He would further contend that there is inconsistency in those two dying declarations for the reason that though PW.19 recorded Ex.P31, he deposed that, at the time of recording the said statement of the injured, the duty Doctor was present and he certified that the injured is fit to give such statement. But the prosecution has neither cited the said Doctor as charge sheet witness nor examined before the Court. The prosecution also failed to examine the Doctor, who has certified that the deceased was in fit state of mind while recording Ex.P41. In such circumstances, veracity of Ex.P31 and Ex.P41 cannot be reliable.

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Learned counsel for the appellant would further

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contend that the evidence of PW-3 i.e., the brother of the deceased also not trustworthy to rely for the reason that his statement was recorded after the registration of FIR. As such, there is an inordinate delay in recording his statement. He

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would also contend that the prosecution has totally failed to produce any medical records pertaining to the deceased for having got her treated in Mc.Gann Hospital and for recording of Exhibit P-31 and Exhibit P-41. With these submissions, he prays to set aside the impugned judgment passed by the Sessions Court and to allow the appeal.

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Refuting the above submissions, learned SPP Shri Vijayakumar Majage would contend that the judgment under challenge in this appeal, does not suffer from any perversity or illegality, since the learned Sessions Judge, after meticulously appreciating the evidence on record, has passed a wellreasoned judgment, which does not call for any interference. He would further contend that the prosecution case is based on the evidence of eye-witnesses, the circumstantial witnesses so also the dying declaration of the deceased as per Exhibit P-31 and Exhibit P-41. He would contend that though the eyewitnesses have turned hostile to the prosecution case, nevertheless the family members i.e., PW-3 and PW-13, have supported the case of the prosecution. Among them, PW-3, the brother of the deceased has categorically deposed in his evidence that the deceased made oral statement before him in

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the Hospital that the accused is sole responsible for her death. The said version of PW-3 supports the contents of Exhibit P-31. The learned SPP would further contend that merely not citing the scribe of Exhibit P-41 itself is not a ground to discard the credibility of Exhibit P-41, since the Tahsildar/PW-21 has categorically deposed before the Court about such declarations made by the deceased. He would also contend that the accused has totally failed to put forward a probable defence to disbelieve the case of the prosecution. Though the defence counsel has suggested to the witnesses that the deceased herself poured kerosene on her person and committed suicide, but to prove such defence, the accused has failed to examine any witness nor has stated in his 313 statement. In such circumstances, adverse inference can be drawn against the accused to prove the charges leveled against him.

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Learned SPP also contends that since the alleged incident took place in the backyard of the house of the deceased and accused, the accused being the husband of the deceased, he is duty bound to explain the reason for the homicidal death of his wife. If he fails to explain the reason for the same, then as contemplated under Section 106 of the

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Indian Evidence Act and also Section 114 of the Indian Evidence Act, adverse inference and presumption can be drawn against him. Accordingly, the learned SPP prays to dismiss the appeal by confirming the judgment passed by the Sessions Court.

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Having heard the learned counsel for the respective parties so also on perusal of the evidence and documents placed before us, the points that would arise for our consideration are:

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i) Whether the judgment under challenge in this appeal suffers from any perversity or illegality?

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ii) Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 302 and 498A of the IPC?

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We have carefully examined the entire evidence on

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record so also the documents made available before us. On careful perusal of the above evidence on record, in order to prove the homicidal death of the deceased, the prosecution has relied on the evidence of PW-17/Doctor who conducted autopsy over the dead body of the deceased and issued the postmortem report as per Exhibit P-30. On careful perusal of Exhibit P-30, the Doctor has opined that the deceased has sustained

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burn injuries to the extent of 55% to 60% on her body and all the injuries are ante mortem in nature. The reason for the death stated by PW-17 is that the deceased died as a result of “toxemia secondary to burn injuries sustained.’ Apart from this evidence, the prosecution also relied on Exhibit P-20 i.e., the Inquest panchanama drawn by PW-21/Tahsildar. PW-11, PW12 and PW-16 are the witnesses for Exhibit P-20. They have also identified the burn injuries on the dead body of the deceased. Hence, on a conjoint reading of the contents of Exhibit P-30/P.M. report so also Exhibit P-20/Inquest Panchanama, along with the evidence of PW-17 the Doctor, PW-21/Tahsildar, PWs 11, 12 and 16 being the witnesses for inquest panchanama, we are of the considered view that the prosecution has proved the homicidal death of the deceased beyond reasonable doubt.

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In order to connect the accused for the homicidal death of the deceased, the prosecution has mainly relied on the evidence of eye-witnesses to the incident i.e., PW-4, PW-5, PW7 and PW-9. On a perusal of the evidence of these witnesses, they have totally turned hostile to the prosecution case. Though the learned Prosecutor cross-examined these witnesses

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at length, nothing worthwhile has been elicited from their mouth to substantiate their 161 statement given before the police. Apart from the evidence of these witnesses, the prosecution also relied on the evidence of the family members i.e., PW.11 to 14. Unfortunately, except stating about the strained relationship between the deceased and the accused, these witnesses have totally turned hostile in respect of the actual incident. As such, the learned Prosecutor treated them as hostile witnesses. Though PW-3 i.e., the brother of the deceased has stated that his sister i.e., the deceased gave a statement before him in the hospital that the accused had illtreated her and thereafter poured kerosene on her person and set her blaze, but his statement was recorded by the respondent/police after registration of the FIR i.e., after two days of the incident. It is also pertinent to mention at this juncture that in the evidence of PW-13, the mother of the deceased has stated that though she visited the hospital, the deceased had not stated anything about the alleged incident committed by the accused. In such circumstances, the evidence of PW-3 cannot be believed as gospel truth since there is clear inconsistency between the evidence of PW-3 and PW-13. Though the prosecution relied on the evidence of PW-4 to

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PW-9, these witnesses have also turned hostile to the prosecution case as stated supra. In such circumstances, the only available evidence to the prosecution to prove the guilt of the accused is the statement of deceased recorded by PW-19 on 02.10.2014 as per Exhibit P-31 and the subsequent dying declaration recorded by PW-21 as per Exhibit P-41.

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We have given our anxious consideration to Exhibit P-31 so also Exhibit P-41. On a careful analysis of Exhibit P-31, according to PW-19, the said statement was recorded on 02.10.2014. The same depicts endorsement of the Doctor that the patient is conscious and well-oriented with time, place and person and the patient is fit to give valid statement.

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Strangely, the prosecution has neither cited the said Doctor as a charge-sheet witness nor examined him before the Court in order to prove the contents of Exhibit P-31. Except the evidence of PW-19, absolutely there is no other corroborative piece of evidence available on record to prove the contents of Ex.P31. It is also forthcoming in Exhibit P-31 that the statement of the injured was recorded by one Yashodamma.P.V, W.P.C.No.730 and was written by the Head Constable No.2502. But the prosecution has also failed to cite

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these witnesses in the charge-sheet nor examined them before the Court. In such circumstances, the veracity of Exhibit P-31 creates doubt in the mind of this Court. Moreover, there is no corroborative evidence available on record to rely on Exhibit P-31.

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As far as Exhibit P-41 is concerned i.e., the subsequent dying declaration recorded by the Taluk Executive Magistrate-PW.21, according to the prosecution, the same was recorded on 02.10.2014 at about 4.00 to 5.00 p.m. The requisition sent by PW.19 as per Ex.P32 depicts the crime number. According to PW-19, after recording the statement as per Exhibit P-31, he sent a requisition to PW.21 as per Exhibit P-32 and the Tahsildar visited the hospital and recorded the dying declaration. But the timings of recording the dying declaration as per Exhibit P-31 and P-41 are almost same. This aspect, creates a clear doubt in the mind of this Court about the genuineness of Exhibit P-31 so also Exhibit P-41.

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Nevertheless, though the presence of the Doctor is mentioned in Exhibit P-41, he has not been examined by the prosecution. There is no competency certificate issued by the Doctor by certifying that the injured was in a fit condition to

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give her dying declaration as per Ex.P41. Moreover, Exhibit P-41 is recorded in question and answer format. The scribe of

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Exhibit P-41 is neither cited as a charge-sheet witness nor examined by the prosecution. In such circumstances, it is hard to believe the contents of Exhibit P-41, the alleged dying declaration recorded by PW-21.

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It is the settled position of law by the Hon’ble Apex Court in a catena of judgments that when there are multiple dying declarations, the discrepancy and contradictions in such dying declarations, make them unreliable. The Hon’ble Apex Court has also held that in the absence of any other reliable evidence, the conviction cannot be sustained wholly based on the contradictory dying declarations relied on by the prosecution. The Hon’ble Apex Court in the case of IRFAN @ NAKA vs. STATE OF UTTAR PRADESH reported in (2023 SCC ONLINE SC 1060) has held at paragraph 62 of the said judgment thus:

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“62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be

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considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility:—.

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(i) Whether the person making the statement was in expectation of death?

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(ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”

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(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

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(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

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(v) Whether the statement was not recorded properly?

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(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

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(vii) Whether, the dying declaration has been consistent throughout?

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(viii) Whether, the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired?

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(ix) Whether, the dying declaration was itself voluntary?

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(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

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(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?”

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This Court, in the case of NAZRULLA KHAN @ NAZRULLA vs. THE STATE OF KARNATAKA (ILR 2023 KAR

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152) , held that if there is more than one dying declaration, they should be consistent. In case of inconsistencies between two or more dying declarations made by the deceased, the Court has to examine the nature of inconsistencies, namely, whether they are material or not and in such a situation, the Court has to examine the multiple dying declarations in the light of the various surrounding facts and circumstances.

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The Hon’ble Apex Court, in the case of KAMLA vs.

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STATE OF PUNJAB reported in (AIR 1993 SC 374) , held that, where there are more than one dying declaration and they are inconsistent, it is not possible to pick out one such declaration wherein the accused is implicated and the conviction on the sole basis of that dying declaration.

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Hence, on a careful perusal of the above judgments of the Hon’ble Apex Court and this Court, it is clear that though a dying declaration carries great weightage, but if there is inconsistency in the multiple dying declarations, the same have to be considered with great caution. Further, the Court has to look into the corroborative piece of evidence.

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On a careful perusal of the entire evidence on record, as discussed supra, the prosecution has failed to place any piece of corroborative evidence of the material witnesses in addition to Ex.P31 and Ex.P41. The eye-witnesses have totally turned hostile so also family members namely the mother of the deceased also totally turned hostile to the prosecution case.

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The learned SPP would vehemently contend that the evidence of the Investigating Officer, that is PW-19 who recorded the statement of the victim as per Exhibit P-31, so also the evidence of PW-21 who recorded Exhibit P-41, cannot be discarded for the reason that they are official witnesses.

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The Hon’ble Apex Court, in the case of PRADEEP NARAYANA MADGAONKAR AND OTHERS VS. STATE OF MAHARASHTRA reported in [(1995) 4 SCC 255] held that the evidence of official witnesses cannot be discarded just for the reason that they are official witnesses. However, as a rule of prudence, their evidence should be corroborated with independent evidence. The Hon’ble Apex Court, in paragraph 11, held as under:

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“11. ……….Indeed, the evidence of the officials (police) witnesses cannot be

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discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony……….”

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Unfortunately, the prosecution has failed to lead the evidence of material witness i.e., doctor who issued the fitness certificate in both Ex.P31 and Ex.P41 so also the scribes of Ex.P31 and Ex.P41. Further, the investigation officer also conducted the investigation in a casual manner without citing the above witness in the charge sheet. Hence, the argument of the learned SPP cannot be accepted.

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On an overall perusal of the entire evidence on record, we are of the considered view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The learned Sessions Judge has misread the entire evidence and misinterpreted the contents of Exhibits P-31 and P-41 and has wrongly passed the impugned judgment by convicting the accused for the charges leveled against him.

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Hence, interference in the impugned judgment is very much required by this Court.

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Before parting, we are constrained to express our serious displeasure with regard to the manner in which the prosecution conducted this case before the Sessions Court so also the manner in which the Investigating Officer conducted the investigation. As mentioned supra, the Investigating Officer has failed to cite the material witness, who recorded the dying declaration of the deceased, as charge-sheet witnesses i.e., Yashodamma P.V, W.P.C.No.730 and the scribe being the Head Constable No.2502 and further, the Doctor who had certified the fitness of the deceased to give such statement.

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In that view of the matter, we answer the points raised above in the affirmative and proceed to pass the following:

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ORDER

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Criminal Appeal No.59/2018 is hereby allowed. The judgment of conviction and order of sentence dated 16.03.2017 in S.C.No.72/2015 passed by the II Addl. District and Sessions Judge, Shivamogga, is hereby set aside. The appellant/

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