Parameshappa and Others vs State of Karnataka

Mohan M. Shantana Goudar, J.—The Judgment and Order of conviction dated 21.3.2011 passed by the Fast Track Court, Chitradurga in S.C. No. 88/2010 is called in question in this appeal by the convicted accused/appellants.

The accused were tried and convicted for the offence under Section 302 r/w 34 of IPC.

The case of the prosecution in brief is that wife of the deceased is the sister of Accused No. 1; Accused No. 2 is the maternal uncle of the deceased; the family of the deceased Chandrashekar was owning five houses in a row which are constructed on a single plot; in one house deceased and his family were living; the other four houses were given on rent to four separate tenants; all the four houses were gifted by the deceased in favour of the 3rd younger sister of the deceased by name Neelamma w/o. Parameshwarappa (Accused No. 1); Such gift deed was also registered; Having come to know of such gift deed made by the deceased in favour of his younger sister Neelamma, the wife of the deceased viz., Nirmala (P.W. 2) and the daughter of the deceased viz., Ms. Anitha (P.W. 1) had objected for transferring khatha in the name of Neelamma; so also they had filed suit before the Civil Court, Chitradurga in that regard; Mr. Syed, Mr. Iliyaz, Mr. Muneer and Mr. Rijwan started mediating between the deceased and his sister Neelamma with regard to the said property; those four persons were pressurizing Neelamma to re-transfer the property in favour of the deceased; However such re-transfer was not made by Neelamma; The wife of the deceased viz., Nirmala being aggrieved by the action of the deceased in gifting the property to Neelamma, started living in her relative''s house and she used to come to the house of the deceased once in 2 to 3 days; about 6 to 7 months prior to the incident in question, the said Neelamma, her husband - Parameshwarappa (Accused No. 1) and uncle of the deceased N.V. Jayadevappa (Accused No. 2) had abused the deceased and quarreled with him and in that regard, the deceased had lodged the complaint before the Police.

At about 8.30 p.m. on the date of the incident i.e. 27.10.2009, there was no electricity supply in the area including the house of the deceased; the deceased alone was in the said house; at that time i.e., at about 8.30 p.m. somebody knocked the door two to three times; when the door was opened by the deceased, two persons who were standing outside splashed acid on the face of the deceased and ran away from the scene in the darkness. At that point of time, there was pitch darkness. Consequently, the deceased could not identify the faces of the assailants. Thereafter the deceased came out of the house and called his friend Sayeed Zamil - P.W. 3 and his wife Nirmala - P.W. 2 from the coin booth phone, who came to the spot immediately and thereafter the deceased was shifted to Chitradurga District Hospital. The statement of the deceased was recorded in the hospital as per Ex. P7 at 11.15 p.m. on 27.10.2009 by the Sub-Inspector of Police (P.W. 14), based on which Crime No. 142/2009 was registered in Kote Police Station, Chitradurga for the offence under Section 307 of IPC. It is relevant to note that the statement Ex. P7 was stated to have been recorded in presence of the doctor - P.W. 17 in the hospital. The said information given by the deceased discloses that he suspected both the accused persons in commission of the crime. The injured died on 26.1.2010.

During the course of investigation, the Police not only recorded the statement of the witnesses, but also recorded the dying declarations. Ultimately, the Inspector of Police (P.W. 20) laid the charge sheet after completion of the investigation.

In order to prove its case, the prosecution in all examined 21 witnesses and got marked 15 Exhibits. On behalf of the defence, one Exhibit is marked. The trial Court on evaluation of the material on record, convicted the accused for the offence under Section 302 of IPC.

Though the crime was earlier registered for the offence under Section 307 of IPC based on the information given by the Police as per Ex. P7 on 27.10.2009, later, the crime was converted for the offence under Section 302 of IPC in view of death of the deceased on 26.1.2010. Therefore the charge sheet came to be filed for the offence under Section 302 r/w. Section 34 of IPC against both the accused.

Sri Mohan Das, learned advocate appearing on behalf of the appellants taking us through the entire material on record submits that the case of the prosecution mainly rests on three dying declarations and the evidence of the Sub-Inspector, doctor and the Taluka Executive Magistrate who participated in recording the dying declarations; there are no eye-witnesses to the incident in question; the deceased also did not know about the reason for the occurrence inasmuch as there was pitch darkness during the relevant time; the two dying declarations Ex. P7 and Ex. P13 clearly reveal that merely on presumption or suspicion, the allegations are made against both the accused; the names of the two accused figure only in Ex. P9 recorded on 9.1.2010; Recording of Ex. P9 is an after thought and it was done after due deliberation only with a view to implicate the accused. According to him, the prosecution has not proved its case beyond reasonable doubt.

Sri B.T. Venkatesh, learned SPP argued in support of the judgment of the Court below contending that the three dying declarations are believable and since the deceased was in a position to make statement, the trial Court is justified in relying upon the dying declarations for coming to the conclusion.

P.W. 1 is the daughter of the deceased. The death of the deceased occurred on 26.1.2010. About two days prior to his death, the deceased got himself discharged from the hospital and proceeded to Hospet wherein P.W. 1 was living in her matrimonial house; he breathed his last within one or two days thereafter. P.W. 1 has clearly deposed about the aspect of motive and the death of the deceased at the hospital. She is not the eye-witness to the incident.

P.W. 2 is the wife of the deceased; she came to the spot after the incident i.e., after getting information from the deceased over phone about the acid attack on him; She has also deposed about the motive.

P.W. 3 is the friend of the deceased; He took the deceased to the hospital after coming to the house of the deceased subsequent to the incident in question.

P.Ws. 4 and 5 are working in the same place where deceased was working. The evidence of these two witnesses may not be relevant inasmuch as they do not depose about the incident in question. However their evidence may be useful only to show the motive.

P.W. 6 is the mother of P.W. 2 i.e., the mother-in-law of the deceased. She has deposed that the deceased made oral dying declaration before her that the accused has splashed acid on him.

P.W. 7 is the husband of sister of the deceased. He is also not the eye-witness.

P.Ws. 8 and 9 are neighbours of P.W. 1 and they are residents of Hospet. They have not deposed about the incident in question.

P.W. 10 was known to the deceased and he visited the hospital and saw the dead body of the deceased.

P.Ws. 11 and 18 are the witnesses for scene of offence panchanama. They have turned hostile.

P.W. 12 is the witness for the inquest panchanama - Ex. P4. He has also deposed that he has signed the mahazar as per the instructions.

P.Ws. 13 to 21 are all official witnesses. P.W. 13 is the Police Constable and he escorted the dead body and handed over the same to his relatives. P.W. 14 has registered the FIR as per Ex. P8 and conducted spot mahazar as per Ex. P2; He recorded the earliest statement of the deceased as per Ex. P7, based on which crime was registered; He has also recorded the statement of the deceased as per Ex. P9 on 9.1.2010. P.W. 15 is the Sub-Inspector of Police who registered the complaint as per Ex. P1 in Crime No. 142/2009 after demise of the deceased. P.W. 16 is the Police Constable; He took the articles to the FSL for examination. P.W. 17 is the Senior Doctor who attested the statement of the deceased as per Ex. P7. P.W. 19 is the Taluka Executive Magistrate; He received the requisition as per Ex. P11 and thereafter went to the hospital and recorded the statements of the deceased as per Ex. P12 and Ex. P13 on 28.10.2009. P.W. 20 is the Investigating Officer who completed the investigation and laid the charge sheet. P.W. 21 is the doctor who certified the statement of the deceased as per Ex. P9.

From the aforementioned facts, it is clear that the evidence of P.Ws. 1 to 12 may not be of much relevance to prove the guilt against the accused. However the evidence of these witnesses, more particularly the evidence of P.Ws. 1, 2 and P.W. 6 may be used by the prosecution for the purpose of proving the motive for the incident. There is no dispute that there was civil dispute between the family members. Even the wife of the deceased was aggrieved by the action of the deceased in gifting the property in favour of sister of the deceased. Thereafter the mediation started between the parties. Thus the fact remains that the parties were litigating before the Civil Court in respect of the civil dispute relating to the property.

The case of the prosecution fully rests on three dying declarations Ex. P7, Ex. P13 and Ex. P9 and the evidence of the witnesses who participated in recording the said dying declarations. Except the three dying declarations, there is no incriminating material against the accused.

Ex. P7 is recorded at the earliest point of time at 11.15 p.m. on 27.10.2009. The incident had occurred on 27.10.2009 at 8.30 p.m. Immediately thereafter P.W. 3 shifted the deceased to the hospital. P.W. 2 also rushed to the hospital immediately after the incident. As per the case of the prosecution, Ex. P7 is recorded by the Sub Inspector of Police (P.W. 14) before the doctor P.W. 17. It is no doubt true that Ex. P7 explains the motive for commission of the offence and as to how the acid was splashed on the deceased. The deceased has stated in Ex. P7 that two male persons splashed acid on his face and body and ran away from the scene. At that point of time, there was no electricity supply in the area including in the house of the deceased since 7 p.m. Except stating that two male persons splashed acid, the deceased has not named anyone. However he has raised the suspicion against both the accused in Ex. P7.

As aforementioned, Ex. P7 was recorded by P.W. 14. Nowhere in examination-in-chief, P.W. 14 has stated that the deceased was in a fit condition to make statement. Though P.W. 14 did not depose anything with regard to the fitness of the deceased to make statement in his examination-in-chief, the defence counsel has suggested P.W. 14 that the injured was not in mentally fit condition to make statement. He has admitted in the cross-examination that the said statement is not recorded by him in presence of the doctor, but he has taken the signature of the doctor subsequently in the emergency ward. The fact remains that P.W. 14 admits that Ex. P7 was not recorded in presence of the doctor.

Even P.W. 17 the doctor before whom Ex. P7 was allegedly written, has not stated in his examination-in-chief that such statement was recorded in his presence. Again the defence advocate has suggested to the said witness that he was not present at the time of recording. Such suggestion is denied by the doctor.

According to the prosecution, the next two dying declarations Ex. P12 and Ex. P13 were recorded on 28.10.2009 by the Taluka Executive Magistrate (P.W. 19). It is relevant to note that Ex. P12 does not bear any endorsement of the doctor much less the Fitness Certificate relating to the mental condition of the deceased. However the Taluka Executive Magistrate in his deposition has stated that he has recorded both Ex. P12 and Ex. P13 in presence of Dr. Nayak. Nowhere in the evidence of the Taluka Executive Magistrate, he has deposed that the victim was in a fit condition to make statement. Thus it is clear from the evidence of P.W. 19 - Taluka Executive Magistrate that the victim was not in mentally fit condition to make statement. In the cross-examination, he has specifically admitted that in the dying declarations Ex. P12 and Ex. P13 the deceased has not specified the names of the assailants. Thus the evidence of P.W. 19 completely takes away the effect of Ex. P12 and Ex. P13.

According to the prosecution, Ex. P12 and Ex. P13 are recorded in presence of Dr. Nayak. The said Dr. Nayak is not examined before the Court. Not even an endorsement of the doctor is found on Ex. P12 that the victim was in a fit condition to make statement. Even the Taluka Executive Magistrate (P.W. 19) who is stated to be recorded Ex. P12 and Ex. P13 has not deposed that the victim was in a fit condition to make statement. In the light of such material on record, the dying declarations Ex. P12 and Ex. P13 could not have been completely relied upon by the trial Court to convict the accused. Then what remains is the next dying declaration i.e., further statement of the victim as per Ex. P9.

As aforementioned, the incident has taken place on 27.10.2009 at about 8.30 p.m., whereas Ex. P9 was recorded on 9.1.2010 i.e., almost after about 2 1/2 months from the date of the incident. The same is stated to have been recorded by the PSI (P.W. 14) in presence of Dr. Raghavendra (P.W. 21). Absolutely no reason is mentioned as to why such statement is once again recorded, that too after 2 1/2 months of the incident. It is also relevant to note that P.W. 14 who recorded Ex. P9 no way has deposed that the victim was in a fit condition to make statement on 9.1.2010 as per Ex. P9. Even Dr. Raghavendra (P.W. 21) before whom the said statement was recorded has merely deposed that the statement of the injured was recorded in his presence. He clearly admits that he is not the doctor who has treated the victim. He has also admitted that he has not treated the victim on day to day basis. He has clearly admitted that when he went near the victim for the purpose of recording his statement, the saline was being administered to him since his condition was critical. He has specifically deposed that the victim was in a semiconscious state. Thus the evidence of the doctor takes away the effect of further statement of the deceased. Since the victim himself was in semi-conscious state and as there is nothing on record to show that he was in a fit condition to make statement as per Ex. P9, such statement also could not have been relied upon by the Court below.

From the above, it is clear that the evidence in respect of first dying declaration Ex. P7 is highly doubtful. The PSI who recorded Ex. P7 has stated that the said statement is not recorded in presence of the doctor, but he has taken the signature of the doctor subsequent to recording the statement, that too in a ward. The said statement Ex. P7 merely discloses that the same is recorded in presence of the doctor. But, there is no endorsement of the doctor on Ex. P7, which is the earliest document to show that the victim was in a fit condition to make statement. Ex. P13 and Ex. P9 also cannot be relied upon in view of the aforementioned reasons assigned. Since the three dying declarations are not believable and unreliable in view of the evidence of the doctor, the Taluka Executive Magistrate and the Police who recorded the dying declarations, the accused cannot be convicted. Absolutely no other material is found against the accused for convicting them in respect of the crime in question. In the absence of any legal evidence found against the accused, they are entitled for acquittal.

On going through the material on record, we find that the trial Court has proceeded merely on assumptions. The aforementioned aspects of the matter highlighted by us are completely ignored by the trial Court. The Judgment of the trial Court is not based on legal evidence. The reasons assigned and consequently conclusions arrived at by the trial Court are improper and incorrect.

In view of the above, the Judgment and Order of conviction and sentence passed by the trial Court is liable to be set aside. Accordingly, the following order is made:

The Judgment and Order of conviction and sentence passed by the trial Court in S.C. No. 88/2010 dated 21st March 2011 stands set aside;

The accused/appellants are acquitted of the charge levelled against them. They shall be set at liberty forthwith, if not required in any other case.

The appeal is allowed accordingly.