State of Karnataka vs Lakshmanan

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 30.10.2010 passed by the Sessions Court, Bangalore City (CCH. No. 46) in SC. No. 477/2007 is appealed against by the State.

The sole accused is charged, tried and acquitted of the offences punishable under Sections 324, 326, 498A, 307 and 302 r/w. Section 34 of IPC.

Case of the prosecution in brief is that the accused and the deceased Shanthi are the married couple; their marriage was performed about 20 years prior to the incident in question; out of the said wedlock three children were born; all of them were living under the same roof along with the sister of the deceased (P.W. 2); the accused was a drunkard and he was not doing any work properly; consequently, the deceased who was earning as a maid servant used to look after the family including the expenses of the accused; whenever the deceased used to question the accused about his bad habits and his conduct of non-earning, he used to assault her mercilessly.

It is further case of the prosecution that about 6.00 p.m. on 11.1.2006 when deceased Shanthi was preparing the food along with P.Ws. 1 to 3 on a kerosene stove, accused came there and asked for food; deceased Shanthi told him that the food is under preparation and may take some time; being enraged by the same, the accused abused the deceased in filthy language and suddenly, took the kerosene stove which was burning and assaulted with the said stove on the head of the deceased consequent upon which the kerosene spilled over and the deceased got fire; P.Ws. 1 and 2 who were also assisting the deceased in preparation of the food, intervened and they were also assaulted by the accused by the very stove and consequently they have sustained certain injuries; the deceased and P.Ws. 1 to 3 were admitted to Victoria Hospital.

It is further case of the prosecution that accused also sustained certain injuries in the incident in question. However, the medical records pertaining to the accused are not marked as Exhibits. Ultimately, the deceased succumbed to the burn injuries at 3.05 p.m. on 17.1.2006 while she was taking treatment in Victoria Hospital.

During the course of treatment, the statements of the victim came to be recorded on 12.1.2006, 13.1.2006 and 14.1.2006 as per Ex. P20, P13, P14 and P7 in the presence of the doctors. Based on Ex. P20, dated 12.1.2006 (recorded at 1.00 a.m.), Crime No. 11/2006 came to be registered in Jeevanabhima Nagar Police Station. P.W. 15, the Investigating Officer completed the investigation and laid the charge sheet.

Smt. Anitha, learned Government Pleader appearing on behalf of the State taking us through the entire material on record including the judgment of the Court below, submits that the Court below is not justified in brushing aide the four dying declarations; the dying declarations clearly reveal the complicity of the accused for causing the death of the deceased; it is well settled principle of law that the dying declaration if proved alone will be sufficient to bring home guilt against the accused; since the dying declarations are supported by the evidence of the doctor, who has issued certificate relating to the fitness of the victim to make statement, the Court below ought to have convicted the accused for the offences with which he was charged.

Per contra, Smt. Padmavathi, learned advocate for the defence argued in support of the judgment of the Court below by contending that none of the circumstances is proved by the prosecution; the dying declarations are not reliable as they are got up documents; none of the doctors, except P.W. 8 supported the dying declarations by supporting that they were present while recording the said dying declarations; the evidence of P.W. 8 cannot be the sole basis for convicting the accused, inasmuch as all other attending circumstances are not proved by the prosecution beyond reasonable doubt. On these among other grounds, she prays for confirmation of the judgment of the Court below.

In order to prove its case, the prosecution in all has examined 18 witnesses and got marked 20 Exhibits. On behalf of the defence no evidence is let in. On evaluation of the material on record, the trial Court acquitted the sole accused.

P.Ws. 1, 2, 3 4 are the eye witnesses to the incident in question. All of them have turned hostile. Among them, P.Ws. 1 and 2 are the injured eye witnesses.

P.W. 4 is the owner of the house wherein the accused and deceased were living. He lives in the adjoining house.

P.W. 5 is the witness for seizure panchanama at Ex. P3, under which the kerosene can is recovered. He has turned hostile.

P.W. 6 is the witness for scene of offence panchanama at Ex. P5. He has also turned hostile.

P.W. 7 is the brother of the deceased. According to the prosecution, he came to the spot subsequent to the incident. However, he has not deposed anything against the complicity of the accused in the crime. He has turned hostile.

P.W. 8 is the doctor working in Victoria Hospital during the relevant point of time. He has endorsed his signature to the effect that the victim was in fit condition to make statement at the time of recording the dying declaration at Ex. P7 in the afternoon of 14.1.2006.

P.W. 9 is the Chemical Expert. He has examined the articles sent for examination and gave his report as per Ex. P8.

P.W. 10 is another witness for seizure mahazar at Ex. P10 under which kerosene stove and burnt clothes of the deceased were seized. He has turned hostile.

P.W. 11 is the witness for inquest mahazar at Ex. P11.

P.W. 12 is the Police Constable who carried the articles to Forensic Science Laboratory.

P.W. 13 is the brother of the deceased. He came to the spot after the incident and took the victim to the hospital for treatment. He has deposed that the accused was drunkard and that he was not earning; he used to frequently torture the victim both physically and mentally. P.W. 13 is practically the witness for motive for commission of offence.

P.W. 14 is the doctor who has certified on the dying declaration at Ex. P13 to the effect that the victim was in fit condition to make statement.

P.W. 15 is the Investigating Officer who completed the investigation and laid the charge sheet.

P.W. 16 is the Police Constable who recorded all the dying declarations in the presence of the Investigating Officer on 12.1.2006, 13.1.2006 and 14.1.2006.

P.W. 17 is the doctor who conducted the postmortem examination. Postmortem report is at Ex. P16.

P.W. 18 is another doctor, who treated P.Ws. 1 and 2 as well as the deceased after the incident at Victoria Hospital, i.e., on 11.1.2006 at 9.20 p.m. One Mahadeva admitted all the patients to the hospital and said Mahadeva has given the history of incident as stove burst. She is also the witness for dying declaration at Ex. P20. She has sent medico-legal information to the police as per Ex. P17 and issued wound certificates at Ex. P18 and P19 pertaining to P.Ws. 1 and 2 respectively.

From the aforementioned, it is clear that all the eye witnesses have turned hostile. The case fully rests on the dying declarations at Ex. P20, P13, P14 and P7. According to the case of the prosecution, P.W. 16-Police Constable has recorded all the dying declarations in the presence of the Investigating Officer-P.W. 15 and the doctors (P.Ws. 8, 14 and 18). It is also relevant to note that the brother of the deceased Kanik Raj-P.W. 13 has deposed about the motive for commission of the offence.

We do not find any ground to believe the version of P.W. 13 in the light of the version of P.Ws. 1, 2 and 3. P.Ws. 1 and 2 are none other than the injured eye witnesses. P.Ws. 1 is the daughter of the deceased and P.W. 2 is the sister of the deceased. Both were present at the time of the incident. Both these witnesses have emphatically deposed that no quarrel used to take place between the accused and the deceased and that the incident has taken place due to stove burst. The evidence of P.W. 3 also supports the evidence of P.Ws. 1 and 2 to show that there was no ill-will between the accused and the deceased at any point of time and they were living cordially. However, P.W. 13, the brother of the deceased has deposed that he came to know about the harassment by the accused through P.W. 1 over phone, which means that P.W. 13 did not have personal knowledge about the alleged harassment by the accused towards the deceased. It is needless to observe that P.W. 2, the sister of the deceased has not deposed anything against the accused. So also another brother of the deceased, namely, Jayaraj (P.W. 7) has not deposed about the alleged harassment by the accused towards the deceased. In the light of such material on record more particularly, the evidence of P.Ws. 1 and 2, we are of the opinion that the evidence of P.W. 13 loses its importance and no credibility can be attached to the hearsay evidence of P.W. 13 on the question of motive. On the contrary, the evidence on record clearly reveals that there was no ill-will between the accused and the deceased.

The four dying declarations relied upon by the prosecution are Ex. P20, P13, P14 and P7.

Ex. P20 is recorded at the first instance. The victim was admitted to hospital at 9.20 p.m. on 11.1.2006. P.W. 18 (doctor) admitted the deceased and P.Ws. 1 and 2 simultaneously as patients in Victoria Hospital. The statement of the deceased came to be recorded as per Ex. P20 at 1.00 a.m. on 12.1.2006. The doctor-P.W. 18 has made an endorsement on the said dying declaration to the effect that the victim was in fit condition to make such statement. However, while deposing before the Court, P.W. 18 in her examination-in-chief itself has stated that she made an endorsement on Ex. P20 at 1.00 a.m. on 12.1.2006 to the effect that the victim was in a position to make statement. Nowhere in her examination-in-chief P.W. 18 has deposed that the said dying declaration (Ex. P20) was recorded in her presence. It is categorically admitted by the said doctor in the cross-examination that she gave such an endorsement based on the request of the police. This admission of P.W. 18 that she has made an endorsement as per the request of the police would destroy the dying declaration at Ex. P20 to a maximum extent. In addition to the same, the Investigating Officer-P.W. 15 has not deposed about recording of this dying declaration at all during the course of his deposition before the Court. So also, the Police Constable (P.W. 16) who scribed the dying declarations does not depose about the dying declaration at Ex. P20. He has simply deposed about two dying declarations which are at Ex. P7 and P14. Thus, we are at a loss to understand as to who has recorded the dying declaration at Ex. P20 at the first instance, i.e., at 1.00 a.m. on 12.1.2006. More over, the doctor herself admits that she has made endorsement relating to fitness of the victim based on the request of the police. Therefore, in our considered opinion, the dying declaration at Ex. P20 cannot be relied upon, more particularly when there is nothing on record to show as to who has recorded the said dying declaration and because of the fact that the doctor has given her endorsement on the said dying declaration as per the request of the police.

The next dying declaration relied upon by the prosecution is at Ex. P13 said to have been recorded on 12.1.2006 in the presence of the doctor-P.W. 14. Neither in the dying declaration at Ex. P13 nor in the deposition of the doctor-P.W. 14 it is mentioned as to at what time the said dying declaration (Ex. P13) came to be recorded. The endorsement of the doctor-P.W. 14 reveals that the victim was in physically and mentally fit condition to give statement. The said statement is allegedly recorded in the presence of the doctor-P.W. 14. Neither in the evidence of the Investigating Officer-P.W. 15 nor in the evidence of the Police Constable-P.W. 16 who allegedly recorded the dying declaration, we find that they recorded the dying declaration at Ex. P13. There is nothing on record to show as to who scribed the said dying declaration. None of the Police Constables who allegedly recorded the dying declaration at Ex. P13 is examined before the Court. The Investigating Officer, as aforementioned has merely deposed about the dying declarations recorded on 13.1.2006 and 14.1.2006 as per Ex. P14 and P7 respectively. So also, the Police Constable-P.W. 16 has deposed only about Ex. P14 and P7. Though it is deposed by P.W. 16 that he has recorded the dying declaration on 12.1.2006, he has not deposed about Ex. P13. Thus, there is nothing on record to show as to who has recorded the dying declaration at Ex. P13. In the absence of the version of the scribe of the dying declaration at Ex. P13 before Court it, would be very difficult for the Court to believe the said dying declaration more particularly when the evidence of the doctor is not believable.

It is the case of the prosecution that the said dying declaration at Ex. P13 is recorded in the presence of P.W. 14 (Dr. Kusuma). In her examination-in-chief before the Court, the said doctor has not deposed that she was present at the time of recording the said dying declaration. On the other hand, in the cross-examination she further clarifies and admits that she was not present when the dying declaration-Ex. P13 was recorded. The evidence of P.W. 14 is further corroborated by the Investigating Officer-P.W. 15 who has also admitted that Dr. Kusuma-P.W. 14 was not present at the time of recording the said dying declaration at Ex. P13. In the light of the fact that the doctor-P.W. 14 was not present at the time of recording the dying declaration at Ex. P13 and as the scribe of Ex. P13 is not examined before the Court, the trial Court is justified in disbelieving the dying declaration at Ex. P13 also.

The next dying declaration stated to have been recorded by the police during the course of investigation is at Ex. P14, dated 13.1.2006. Though we find that the doctor has certified on the said dying declaration (Ex. P14) that the patient was in fit condition to make statement, there is nothing on record to show as to which doctor has made such an endorsement and at what time. So also, there is nothing on record to show as to at what time Ex. P14 came to be recorded. It is relevant to note that Ex. P14 is marked through the Investigating Officer-P.W. 15. The investigating Officer though has stated that he has recorded the dying declaration in the hospital on 13.1.2006, he did not depose that the same was recorded in the presence of the doctor or that he has taken the endorsement of the doctor, etc. So also, curiously, P.W. 15 has not deposed about the fitness condition of the victim to make statement. However, it is the deposition of P.W. 16, the Police Constable that he recorded Ex. P14. But he has also not deposed about the fitness of the victim to make statement during the relevant point of time or that he has taken the endorsement of the doctor to that effect. Nothing is deposed by P.W. 16 to show that Ex. P14 was recorded by him in the presence of the doctor. In view of the aforementioned material, the trial Court is justified in disbelieving the dying declaration at Ex. P14 also.

The next dying declaration relied upon by the prosecution is at Ex. P7. The dying declaration - Ex. P7 discloses that the same was recorded from 12.00 noon to 1 p.m. on 14.1.2006. The doctor P.W. 8 who issued the Fitness Certificate at the time of recording dying declaration - Ex. P7 on 14.1.2006 has also deposed that the said dying declaration was recorded from 12 noon to 1 p.m. it is no doubt true that the said dying declaration - Ex. P7 fulfils all the formalities which are required in law as to the recording of dying declaration. The doctor -P.W. 8 has certified that the victim was in a fit condition to make statement. In the normal course, the said dying declaration would have been relied upon by the Court. However the genuineness of the dying declaration and the contents therein as well as the veracity of the doctor who issued Fitness Certificate are to be tested by considering all the attending circumstances.

It is relevant to note that four dying declarations Ex. P20, Ex. P13, Ex. P14 and Ex. P7 are recorded by the Police in the hospital one after the other. Improvements are made in the consecutive dying declarations. Whenever the improvement is needed, a separate dying declaration seems to have been recorded by the Investigating Officer. Thus the version as found in Ex. P20 (earliest dying declaration) recorded on 12.1.2006 is improved to greater extent in subsequent dying declarations and ultimately, the final version is putforth by the prosecution in Ex. P7. If really, the dying declarations are recorded as per law and if really the victim has provided the version as found in the first dying declaration, generally the Investigating Officer would not have ventured to record three more dying declarations one after the other, that too by improving the versions. It is also relevant to note that the victim was admitted to the hospital by one Mr. Mahadev who is not examined before the Court. He is none other than the neighbour of the deceased. He has given the history of stove burst while admitting the victim to the hospital. Said Mahadev is an independent witness. He has no grouse either against the accused or the deceased. It is also the case of the prosecution that P.W. 13, the brother of the victim viz., Kanik Raj came to the house of the deceased after hearing the news and admitted her to the hospital. If it is so, the first version as given by either P.W. 13 or Mr. Mahadev appears to be without any manipulation. However all the declarations recorded are incriminating against the accused. Though the victim was in the hospital from 11.1.2006 to 17.1.2006 (on which day she expired), the Investigating Officer has not taken steps to summon the Taluka Executive Magistrate to record the dying declaration. On the other hand, the Investigating Officer and the Police Constables themselves have proceeded to record the dying declarations, which are virtually not supported by the doctors version as observed supra. Absolutely no reason is forthcoming as to why the Taluka Executive Magistrate is not summoned to record the dying declarations. In matters of this kind, generally the Taluka Executive Magistrates are being summoned for recording the dying declarations. Ex. P7 is recorded after about three days of the incident in question. Meanwhile, the brother of the deceased viz., Kanik Raj and others have talked with the deceased. They were taking care of the deceased in the hospital. Under these circumstances, learned advocate appearing on behalf of the accused is justified in contending that there is every likelihood of tutoring the deceased, if really she was in a position to talk.

The victim has admittedly suffered burn injuries to the extent of 68 to 72%. The death has occurred within three days of recording the dying declaration - Ex. P7. Though the victim has taken treatment for about six days in the hospital, curiously, the Investigating Officer has not taken care to place the medical records before the Court to find out as to whether the victim was really in a position to speak or not. The suppression of the material documents viz., the case sheets maintained by the hospital during the course of treatment of the victim would lead the Court to draw adverse inference against the prosecution. If really the victim was in a position to speak during the relevant point of time, the prosecution would not have failed to place on record the said records pertaining to the treatment provided to the victim and as to the health condition of the victim. In addition to the same, the doctor (P.W. 8) who has certified about the fitness of the victim on Ex. P7 is not the doctor who treated the victim. He has merely examined the victim on 11.1.2006 at the time of admission and thereafter he has not given any treatment to the victim. The doctor who treated the victim or the doctor who was in-charge of the victim has not certified about the fitness. In the absence of the medical records, the defence is justified in arguing that the presence of P.W. 8 while recording the dying declaration is unnatural.

We also find from the evidence of P.W. 13, the brother of the deceased that the victim had attempted to commit suicide at an earlier point of time. However the said attempt was frustrated. In that view of the matter, the defence is contending that the victim has developed suicidal tendency also.

Be that as it may, having regard to the material as mentioned supra, we are of the opinion that such dying declaration i.e., Ex. P7 alone cannot be made the basis for conviction of the accused for the serious offence punishable under Section 302 of IPC, more particularly when Ex. P7 is surrounded with suspicious circumstances.

The aforementioned discussion of us would lead to only conclusion that the trial Court is justified in acquitting the accused inasmuch as the prosecution has not proved its case beyond reasonable doubt.

Accordingly, the appeal fails and the same stands dismissed.