State of Karnataka vs M.H. Suresha

Mohan M. Shantana Goudar, J.

The judgment dated 7th March 2007, passed by the Presiding Officer, FTC-V, Mysore, in S.C. Nos. 44/2005 and 117/2005 is the subject matter of both these appeals.

The trial Court by the impugned judgment, convicted accused No. 1 for the offences punishable under sections 498-A and 306 of IPC and acquitted accused Nos. 2 to 6 for the said offences. So also, the trial Court acquitted all the accused including accused No. 1 for the offence punishable under sections 3 and 4 of the Dowry Prohibition Act.

Crl. A. No. 1207/2007 is filed by the State challenging the acquittal of accused No. 1 for the offence punishable under section 302 of IPC, whereas, Crl. A. No. 626/2007 is filed by accused No. 1, questioning the judgment and order of conviction for the offences punishable under sections 498-A and 306 of IPC. Since both the appeals arise out of the same judgment, they are taken up for final hearing together and are decided by this common judgment.

Case of the prosecution in brief is that accused No. 1 is the husband of deceased Rangalakshmi. A child was born out of wedlock; accused Nos. 2 to 6 are the near relatives of accused No. 1; accused No. 1 used to torture victim Rangalakshmi by pressurizing her to bring additional amount of dowry after the marriage; the torture continued for long time; of late accused No. 1 with the abetment of accused Nos. 2 to 6 started pressurizing the deceased to bring additional amount of dowry; he was also of the opinion that in case if the deceased dies, he would be in a position to marry once again; with this motive and background, the offence has taken place on 18.11.2004.

It is alleged that accused No. 1 poured kerosene on victim Rangalakshmi and set her ablaze; when she was suffering from burn injuries, he pushed the child also towards the deceased and consequently, the child also sustained certain burn injuries. Immediately after the incident, accused No. 1 fled away from the scene on the motor cycle; the deceased tried to save herself by jumping into the water tank in her house; she raised hue and cry; consequently, P.Ws. 1 to 4 came to the spot immediately and tried to save the life of the victim by shifting her to the hospital; the victim was taken to H.D. Kote hospital at the first instance and thereafter, to K.R. hospital, Mysore, on the instructions of doctors of H.D. Kote hospital. The deceased succumbed to the burn injuries on 20.11.2004.

During the course of treatment, the statement of the victim came to be recorded by P.W. 23-Police Sub-Inspector, in the presence of the doctor-P.W. 6, as per Ex. P7, based on which Crime No. 160/2004 of H.D. Kote police station was registered, for the offences punishable under sections 498-A and 307 of IPC read with section 34 of IPC and sections 3 and 4 of the Dowry Prohibition Act. The Sub-Inspector of Police sent first information report as per Ex. P33 to jurisdictional Magistrate immediately thereafter. Subsequently the victim expired due to burn injuries. Consequent upon which the offence under Section 302 was introduced. The police after investigation laid charge sheet.

Shri Tomy Sebastian, learned Senior Advocate appearing on behalf of the accused submitted that the trial court is justified in acquitting the accused for the offence under section 306 and 498A of IPC; this is not a fit case to convict the accused under section 302 of IPC. There is a vital insertion in Ex. P5 and if the said insertion is removed from consideration, the case definitely falls under section 306 of IPC and not under section 302 of IPC. He further submits that the prosecution has tried to improve its case from time to time.

Shri Venkatesh, learned Addl. SPP submits that it is clear case wherein it can be safely said that the accused has committed an offence under section 302 of IPC inasmuch all the dying declarations point towards guilt of the accused No. 1 and none else, it is not a case of suicidal death but it is a clear case of homicidal death.

The case mainly rests on the evidence of P.Ws. 1 to 4 who are the neighbouring witnesses and who rushed to the spot immediately after the incident and saw the accused running away from the scene.

Ex. P5, P7, P15 and 19 are the four dying declarations found on record. All the four dying declarations are recorded on 18.11.2004 itself, i.e. on the date of incident. P.Ws. 6 and 23 are the witnesses who deposed about Ex. P7 and out of them, P.W. 6 is the doctor and P.W. 23 is a police officer who recorded Ex. P7. Ex. P15 is the dying declaration recorded by the Taluka Executive Magistrate (P.W. 14) in the presence of the doctor (P.W. 15.)

It is not in dispute that the offence has taken place in the matrimonial house of accused and deceased. The material on record amply discloses that except deceased and accused, the only other person in the house was child aged about 1� years. Thus, virtually, the accused and deceased only were present on the scene of offence. The place of incident is not in dispute. P.Ws. 1, 2, 3 and 4 rushed to the spot immediately after hearing the hue and cry raised by the injured victim. All of them have deposed consistently that the accused No. 1 was very much present at the scene of offence and he went away immediately on the motor cycle from that place. P.Ws. 1 to 4 are the independent witnesses. None of them are related either to the accused or to the deceased.

P.W. 1 is an LIC agent. He has deposed about the motive inasmuch as he knew about the happenings in the house of accused and deceased. He was residing in the neighbouring house. He has deposed that the accused No. 1 was suspecting the fidelity of the deceased; he used to torture the victim by pressurizing her to bring the money from her parents; at an earlier point of time, the deceased had lodged complaint against accused No. 1 before the police station. All these facts were known to the residents of locality, wherein accused No. 1 and deceased were living. He has further deposed that after hearing the cries, he went in front of the house of accused, wherein he found accused running away from the scene. He tried to talk with accused No. 1, but he did not talk with him, as he went away from the scene on the motor cycle. On the other hand, accused No. 1 is alleged to have behaved rudely with P.W. 1.

Same is the evidence of P.Ws. 2, 3 and 4. All of them have deposed that when they reached the spot immediately after hearing the hue and cry of the victim, they saw accused No. 1 going away from the scene on the motor cycle. P.Ws. 1 to 4 have specifically deposed that deceased had orally stated to them that accused No. 1 poured Kerosene on her and set her ablaze. At the time they went to the house, the victim was trying to save her life by sitting in the water tank. Immediately, the victim was shifted to hospital by P.W. 3.

P.W. 3 is the person who shifted the victim to the hospital. She has also deposed about the oral dying declaration said to have been made by the deceased before her as well as P.Ws. 1, 2 and 4. At the first instance, she was taken to H.D. Kote hospital and thereafter, she was shifted to K.R. hospital at Mysore. Though P.Ws. 1 to 4 are subjected to lengthy cross-examination, nothing worth is elicited so as to disbelieve their evidence. It has also come in the evidence that the doctors have taken the signature of P.W. 3 when she got the victim admitted to the hospital.

On appreciating the material on record, we do not find any ground to disbelieve the version of P.Ws. 1 to 4 inasmuch as they are independent witnesses and their evidence is consistent and cogent and there is no reason as to why they should depose falsely against accused No. 1.

As aforementioned, Ex. P5, P7, P15 and P19 are the four dying declarations. All of them have come into existence as on the date of incident i.e. 18.11.2004.

On meticulous perusal of Ex. P5 - history sheet of the General Hospital, H.D. Kote, we find that there are some interpolations in Ex. P5. In that regard, Shri Tomy Sebastian, learned Senior Advocate, is justified in arguing that it is a suspicious document inasmuch as the doctor who maintained Ex. P5 has not acted fairly while recording the history given by the patient. Ex. P5 is nothing but history given by the patient while getting herself admitted to the hospital. Since there is a vital interpolation in Ex. P5, we decline to rely upon the said document. In our considered opinion, the trial court is justified in disbelieving Ex. P5.

However the other documents Ex. P7; Ex. 15 and Ex. 19 are staring at accused No. 1.

Ex. P7 is the first information lodged by the declarant herself during the course of treatment in the hospital. Immediately after getting the information, P.W. 23-Police Officer came to the hospital and recorded the statement of the victim as per Ex. P7 at about 6.30 P.M. on 18.11.2004. The said statement is recorded in the presence of the doctor-P.W. 6 who deposed before the Court that the victim was in a fit condition to make the statement. Though it is not stated in Ex. P7 by the doctor-P.W. 6 that the victim was in a fit condition to make the statement, in his deposition he has clarified that the victim was in a fit condition to make the statement. Based on the very statement-Ex. P7, crime came to be registered.

P.W. 6 has deposed that immediately after admission of patient to the hospital, she started disclosing that it was her husband who committed the crime by setting her ablaze. Even the motive part is spoken to by the victim before the doctor-P.W. 6. In the cross-examination, the defence was not able to shake the credibility of his evidence. There is no reason as to why the doctor should tell falsehood if really the victim was not in a position to state anything at the time of admission to the K.R. Hospital. Ex. P7 is recorded by P.W. 23. He has also deposed that he recorded the statement of victim as stated by her before him in the presence of P.W. 6. The combined effect of the evidence of P.W. 6 and P.W. 23 would clearly reveal that victim had stated before the doctor and the Police Inspector as per Ex. P7 -dying declaration.

Another dying declaration is at Ex. P15. The same is recorded at by P.W. 15 (Taluka Executive Magistrate) in the presence of doctor P.W. 14. Ex. P15 is recorded from 10.00 P.M. to 10.30 P.M., on the date of incident itself. Ex. P15 clearly reveals that the victim was examined by the Taluka Executive Magistrate, in question and answer form and recorded her statement. He was fully convinced that the victim was in a fit condition of mind at the time of recording her statement. The same was recorded in the presence of doctor P.W. 14. The Taluka Executive Magistrate has certified in Ex. P. 15 that the victim was in a fit condition to make the statement and none of her relatives were surrounding her at the time of recording the dying declaration. It is also certified by the Taluka Executive Magistrate that the declarant was not put to any force for making the statement and so also, the victim was not forced by any of her relatives to make statement in a particular manner. It is further endorsed by the Taluka Executive Magistrate that the dying declaration is recorded as stated by the victim. On this declaration also, the doctor has certified that the dying declaration is recorded in his presence. However, it is not endorsed by the doctor on Ex. P15 specifically that the victim was fit to make the statement. However, the doctor-P.W. 14 has deposed in his evidence that the victim was in a fit condition to make the statement. He has also deposed that the victim disclosed before him that it was accused No. 1 who poured kerosene and set her ablaze.

P.Ws. 14 and 15 are the independent witnesses. Both are officers of the State. There is no reason as to why they should depose falsely against accused No. 1, if really the deceased had not stated anything about accused No. 1 while recording Ex. P15.

Ex. P19 is the copy of the case sheet maintained by K.R. hospital, Mysore, wherein the history of the incident is recorded. Doctors, at the time of admission, have recorded the history as homicidal burns by her husband. In the third page of Ex. P19, it is specifically mentioned by Dr. Mohan (P.W. 14) that a patient was admitted with the history of homicidal burns sustained at 5.30 P.M. in her residence on 18.11.2004. It is also mentioned that her husband poured kerosene on her and lit her with match stick. The doctor has opined that the victim has sustained 95% superficial and deep burn injuries.

Though Ex. P5 is unbelievable, we find that the dying declarations at Ex. P7, P15 and P19 are consistent and cogent. All of them are recorded within about 4 to 5 hours of incident in question. There was no chance of tutoring the victim by anybody. The victim was taken to hospital by P.W. 3 and none else. It is not the case of accused that the victim was taken to hospital by any of her relatives. Before her relatives could come to the hospital on the next date, all the dying declarations were already recorded. It is the specific defence of the accused that he did not come to the house at all on 18.11.2004 but he came to the house only on the next day. If it is so, there is no intervention of anybody including relatives of the deceased and the accused at the time of recording dying declarations. The dying declarations are recorded by the independent officers of the State. We find them highly believable. The trial Court is not justified in disbelieving the dying declarations Exs.P7, 15 and 19, so also disbelieving the versions of P.Ws. 6 and 23 who have deposed in support of Ex. P7 and evidence of P.Ws. 14 and 15 who have deposed in support of Ex. P15.

In the light of the evidence of P.Ws. 1 to 4, 6 and 23, 14 and 15, we are of the considered opinion that it was accused No. 1 who committed the crime of murder. It is a case of homicidal death and not suicidal death as contended by the accused. Since we find that the accused alone was present in the house along with the deceased, it was he who committed the murder. In addition to the same, as aforementioned, P.Ws. 1 to 4 immediately rushed to the spot and saw accused running away from the seen and when they tried to talk with accused No. 1, who behaved rudely with them and ran out of the spot in his motor cycle and was unheard of till at least next day. There is no reason as to why the dying declarations are to be disbelieved, particularly when they are supported by the versions of the doctors as well as Taluka Executive Magistrate and the police officers who recorded the dying declarations.

It is the case of the prosecution that child Vinay also sustained injuries in the incident inasmuch as the accused alleged to have pushed the child near burning victim. The said allegation is not supported by any medical evidence. There is nothing on record to show that child was medically treated at any point of time. In the absence of medical records to show the treatment, if any, given to the child, the trial Court is justified in accepting the defence version that the child has remained unhurt and a false case in that regard is lodged against the accused. We concur with the conclusion reached by the trial Court that the accused has not committed the offence punishable under section 307 of IPC against the child as alleged.

On reconsidering the material on record, we find that the trial Court is not justified in acquitting accused No. 1 for the offence under section 302 of IPC. Since the only view possible under the facts and circumstances of the case is to convict accused No. 1 for the offence punishable under Section 302 of IPC, the judgment of acquittal of accused No. 1 for the said offence is to be set aside. We find that the reasons assigned by the Court below are improper and incorrect. We find that the trial Court has proceeded casually while disbelieving dying declarations - Ex. P7, P15 and P19 as also while disbelieving the versions of P.Ws. 1 to 4, 6 and 23 and 14 and 15.

We have heard the advocates on the question of sentence. After hearing, we find that it is not a fit case to impose capital punishment on accused No. 1. Accordingly, the following order is made:

ORDER

(a) Accused No. 1 namely, M.H. Suresha is convicted for the offence punishable under section 302 of IPC. He is sentenced to undergo imprisonment for life.

(b) The judgment and order passed in S.C. Nos. 44/2005 and 117/2005 is modified to that extent. The rest of the portion of the judgment and order of the Court below remains unaltered.

(c) Criminal Appeal No. 626/2007 is dismissed.

(d) Criminal Appeal No. 1207/2007 is allowed to the said extent.