Gopala vs The State of Karnataka

Ajit J. Gunjal J.

We notice that this is a legally aid brief. We appoint Vishwanatha Poojari K. as Amicus curie to assist the Court. The appellant-accused is before this Court. He has been convicted by the learned Sessions Judge for the offence punishable u/s 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. . 5,000/-. We notice that the accused is in judicial custody since 6.4.2003.

The matrix of the prosecution case is that complainant PW1 Chikka Hanumaiah is the elder brother of one Huliyappa and is the resident of Kenchana Kuppe village. The said Huliyappa is no more and during his life time he solemnized marriage of his daughter Muthamma with the accused Gopala and during the wedlock deceased Muthamma gave birth to a son and a daughter. The accused and the deceased wife Muthamma were also the residents of Kenchana Kuppe village. The accused was eking out his livelihood by doing coolie work and most of the time was under the influence of alcohol and he was abusing and assaulting deceased Muthamma. The deceased Muthamma complained of the attitude of the accused to her neighbours and also about the cruelty meted to her by the accused. On 3.4.2003 at about 10.00 a.m. the accused who was under the influence of alcohol came to the residence and started abusing his wife. When she questioned as to the reason of abusing her the accused all of a sudden took out a knife and assaulted and inflicted injury on her abdomen. She fell un-conscious and the accused fled away from the house. The deceased Muthamma created a hue and cry, which attracted the attention of the neighbors and PW2 Dasappa brother of accused and PW5 Sannamma wife of PW2 came and they immediately took the deceased Muthamma who was then only injured to Bidadi Primary Health Centre. There she was treated by Medical Officer PW3 Dr. Suma attached to the Primary Health Centre. On 5.4.2003 on the information received from the medical officer PW3, Dr. Suma, the PSI PW10 M.K. Thammaiah then attached to Bidadi Police Station rushed to the Bidadi Primary Health Centre and in the presence of the officer recorded the statement of injured Muthamma as per Ex.P7 and after coming to the police station based on the statement of injured registered a case in Crime No. 140/2003 for the offence punishable u/s 307 of Indian Penal Code and submitted the First Information Report to the Court as per Ex.P17. The PS1-PW10 had also made arrangements to shift the deceased Muthamma immediately to Victoria Hospital, Bangalore and on the same day on 5.4.2003 he visited the scene of occurrence and conducted the spot mahazar as per Ex.P18 in the presence of PW6 Mutturaja brother of the injured. He also deputed his staff for apprehending the accused and accordingly the accused was arrested on 6.4.2003. After his arrest his voluntary statement was recorded as per Ex.P19, which led to the discovery and recovery of the knife. The knife, which was used in the commission of the offence, was found in a canal. It is marked as M.O. No. 1. The accused was produced before the Court on the same day with a remand application and he has been in custody as observed since then. PW10 received another information on 10.4.2003 that, the injured Muthamma had died and another case was registered and a second First Information Report as per Ex.P21 was sent to the Court for the offence punishable u/s 302 of Indian Penal Code. The second First Information Report was registered on the basis of a complaint lodged by PW12. PW10 handed over the further investigation to CPI, PW9- H. Rudrappa who took up further investigation on 11.4.2003 and after verifying the investigation papers he visited Bidadi hospital mortuary and conducted inquest proceedings on the body of the deceased as per inquest mahazar Ex.P15. At the time of conducting the inquest proceedings, he examined the witness i.e., PW6 Mutturaju, CW17 Ramakrishna, CW13- Honappa and recorded the statements. After the autopsy on the body on 11.4.2003 and issued a post mortem report as per Ex.P16. On the same day the knife M.O. No. 1 as per Ex.P13 was recovered from the canal and PW7 is the signatory and witness to the said recovery. Thereafter the CPI examined the witness on 13.4.2003 and recorded the statement of brother of the accused and PW5 the sister-in-law. After due investigation charge sheet is filed alleging that the accused had committed the offence punishable u/s 302 of Indian Penal Code. The matter was committed to sessions.

During trial the prosecution has examined PW2 brother of the accused and PW5-sister-in-law of the accused who in the first instance took the deceased Muthamma to the hospital. PW7 is the witness for recovery of the knife. PW3 is the Doctor who initially treated the deceased and PW11 is the one who conducted autopsy.

Mr. Vishwanatha Poojary K, learned counsel appearing for the accused-appellant submits that the so-called dying declaration itself cannot be believed inasmuch as there are two different versions as to how the incident has happened. He submits that in the first instance injured makes a statement indicating that the accused inflicted the injury. But however, the continuation of the said statement would disclose that it was self-inflicted injury. In the circumstances, he submits that the dying declaration itself cannot be relied upon to drive home the guilt of the accused. He further submits that apart from the dying declaration the prosecution has not produced any evidence. He submits that all the witnesses have turned hostile including PW7 who was a signatory to the recovery mahazar. Another contention raised by him is that the FSL report though produced was not marked during the course of trial Hence, the same cannot be looked into for any purpose. In the alternate he submits that if this Court were to come to a conclusion that the accused had inflicted those injuries, it cannot be a case of Section 302. But however, it is required to be dealt as one u/s 304 Part 1 or Part 2. He submits that since the date of the arrest i.e., on 6.4.2003 the accused is in custody.

Mr. Bhavani Singh, learned State Public Prosecutor supports the judgment of conviction. He submits that the dying declaration itself would be a conclusive factor to show that the accused had inflicted the injury, which resulted in the death of his wife. He submits that notwithstanding the fact that the other witnesses have turned hostile will not take away the rigor of the dying declaration.

We have given our anxious consideration to the submissions made by the learned counsel appearing for the accused as well as the State.

The point that would arise for consideration is whether the judgment of conviction can be sustained or it can be brought u/s 304 Part 1 or Part 2?

PW1 is the uncle of the deceased. He would speak about the marriage of the deceased with that of wedlock. He would depose that the relationship inter se between the accused as well as the deceased was cordial and he is wholly unaware as to the reason of the death of Muthamma. He would also depose that he had not seen the accused or his wife quarreling. He is wholly oblivious as to who has stabbed the deceased Muthamma. Indeed, the said witness has turned hostile and he has been cross-examined by the prosecutor. He would deny the statement made before the police to the effect that the accused was addicted to alcohol even before the marriage. He would deny that he has made such a statement.

PW2 is the brother of the accused. He would also speak about the relationship between the accused and the wife and would say that they were cordial. The accused was doing coolie work and he was maintaining his wife and children and there was no animosity between the husband and wife. He has also turned hostile.

PW3 is the medical officer of Primary Health Centre, Bidadi who initially treated the deceased. She would depose that Muthamma was brought on 5.4.2003 at about 10.45 a.m. by her mother-in-law with a history of stab injury by her husband on 3.4.2003. But however, what is significant is that during the cross-examination while narrating the incident the deceased Muthamma informed her that the injuries were self-inflicted. The injury, which was recorded by her, made a case as if a person has fallen on a sharp object, Indeed, in this regard, we are required to look into Exs. P8 & P9 on which the prosecution proposes to rely and construe it as a dying declaration.

Ex. P7 is the complaint. A perusal of the complaint would disclose that as on the date i.e., on 3.4.2003 at about 10 a.m. in the morning the accused had come completely drunk and picked up a quarrel with the deceased in respect of the provision not being brought by him. She would also complain that he had come drunk. The accused was enraged and took out a knife and stabbed her stating that if she were not to be there his life would be much easier. But however, Exs.P8, P9 & P10 are the extracts of the accident register, which give somewhat; different picture as to what constitutes a dying declaration. The Apex Court in the case of Muthu Kutty and Another Vs. State by Inspector of Police, Tamil Nadu, has observed thus;

"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in fit state of mind."

In the case of Rasheed Beg and Others Vs. State of Madhya Pradesh, has observed thus:

"Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.

Ex.P8 is dated 5.4.2003. The time is 10.45 a.m. It states that the deceased was brought by her mother-in-law with a history of stabbed injury with a knife by her husband. But however, the subsequent information would disclose that she had taken treatment on 3.4.2003 for the said injuries and she has not revealed the time and history to the Doctors. She had given it as ''sell-inflicted'' injury.

Indeed, we notice that there is a variance in the evidence of PW3-the Doctor and also as to who took the deceased to the hospital. But however, we find that there is one consistent thread in the statement made by the deceased that it was the husband who inflicted the injuries i.e., with a knife. That would be the gist of the complaint and also the first statement made by the deceased when she was hospitalised.

The next question would be for the said act of the accused can the accused be convicted for the offence punishable u/s 302 of Indian Penal Code. Indeed, in this regard we notice that the deceased herself had stated that the accused was addicted to alcohol and on the date of the incident he picked up a quarrel with her for not bringing the provisions. Indeed, this enraged the accused and in a spur of the moment has stabbed his wife that is the deceased Muthamma. The doctors evidence and the post mortem report would indicate that the wound was 3 cms in depth. We are of the view that this is not a case where the accused can be convicted for the offences punishable u/s 302 of Indian Penal Code, More so, having regard to the state of mind in which he was at the time of inflicting the injuries. We also notice that the deceased survived for almost seven days alter being stabbed with injury. Having regard to the evidence, we are of the view that the offence can be also brought to our notice that the accused is in custody since 6.4.2003 i.e., for a period of eight years. Having said so, following order is passed:

(i) The appellant-accused is convicted for the offence punishable u/s 304 Part II of Indian Penal Code and directed to undergo rigorous imprisonment for eight years.

(ii) The period of imprisonment undergone shall be given set off as period of punishment is reduced to the period already undergone.

(iii) The accused-appellant is set at liberty forthwith if not required in any other case.

Appeal is accepted in part & disposed of accordingly.

The fee of the Amicus Curie is fixed at Rs. .7,500/-