Govindappa
& Ors. Vs. State of Karnataka [2010] INSC 386 (11 May 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1469
OF 2008 Govindappa & Ors. .... Appellant(s) Versus State of Karnataka ....
Respondent(s)
P.
Sathasivam, J.
1) This
appeal is directed against the final judgment and order dated 04.10.2007 passed
by the High Court of Karnataka at Bangalore in Criminal Appeal No. 2573 of 2006
whereby the High Court partly allowing the appeal acquitted Laxmibai - A-3, the
mother of the appellants herein and Bhagirathi-A-5, the grandmother of
appellants and affirming the sentence passed by the trial Court 1 convicted
A-1, A-2 and A-4, appellants herein, for offences under Section 498-A/34 IPC
and Section 302/34 IPC.
2) The
facts leading to the present appeal are as follows:
The
deceased - Renuka, was married to appellant No.1 about 10 years prior to the
date of the incident. As per the prosecution case, on 10.12.2005, at about 12
noon, the appellants herein, along with their mother and grandmother tried to
pour kerosene oil and lit fire on the deceased and because of that she raised
hue and cry. On hearing her noise, five neighbours came and requested them not
to do so but the accused persons asked them not to interfere in their family
matter. Appellant No.3 poured kerosene on the deceased and appellant No.2 set
fire in the presence of the neighbours. After pouring kerosene, the accused
persons ran away from the house and the neighbours extinguished the fire and
covered the deceased with blanket and had taken her immediately to the
Government Hospital Bagalkot. At about 2.30 p.m., the Doctor (PW-7) informed
the police and the Magistrate 2 (Tehsildar) (PW 12) came to the Hospital at
4.30 p.m. and recorded the dying declaration of the deceased which is filed as
Ex. P-9. The Police Officer came to the hospital after 7 p.m. and taken the
statement of the deceased which was written by Govindagowda Patil - PW-11, the
neighbour, and F.I.R. was registered at the police station at 7.15 p.m. which
is Ex. P-10. The Investigating Officer, PW-17 came to the hospital at 8.30 p.m.
and again tried to take the statement of the deceased but she was not in a
position to give any statement and at 9.00 p.m., she died.
The
Inquest Panchnama was prepared at about 11.00 p.m. On 11.12.2005, post mortem
was conducted by the Doctor, PW-7, the report of which is Ex. P-5. The
Investigating Officer filed the charge sheet on 23.01.2006.
On
26.06.2006, the Fast Track Court, Bagalkot framed the charges against all the
five accused persons under Sections 498-A, 143, 147, 341, 302 read with Section
149 I.P.C. By order dated 03.10.2006, the Fast Track Court, Bagalkot convicted
all the five accused for the offence 3 punishable under Sections 498-A, 143,
147, 341, 302 read with Section 149 I.P.C. and sentenced them to undergo
rigorous imprisonment for two years and also sentenced them to pay a fine of
Rs.2000/- each in default, simple imprisonment for three months for the offence
punishable under Section 498-A read with Section 149 I.P.C. and further
convicted them for the offences punishable under Section 302/149 IPC and
sentenced them to undergo imprisonment for life and to pay a fine of
Rs.10,000/- each in default, simple imprisonment for one year. All of them
filed a Criminal Appeal being Appeal No.
2573 of
2006 before the High Court. By order dated 04.10.2007, the High Court by partly
allowing the appeal acquitted A-3 and A-5 of all the charges leveled against
them and affirming the sentence passed by the trial Court on A-1, A-2 and A-4
convicted them for the offence punishable under Section 498-A/34 I.P.C. and
Section 302/34 I.P.C. Aggrieved by the said order, accused Nos. 1, 2 and 4 have
preferred this appeal by way of special 4 leave petition.
3) We
have heard Mr. Sanjay Jain, learned counsel for the appellants-accused and Mr.
Sanjay R. Hegde, learned counsel for the respondent-State.
4) Points
for consideration in this appeal are:- (i) Whether the Trial Court was
justified in convicting the appellants-accused A-1, A-2, and A-4 for offences
punishable under Section 498A, read with Section 34 IPC and Section 302 read
with Section 34 IPC? (ii) Whether the sentence imposed upon the appellants-
accused is justifiable? (iii) Whether the High Court is right in confirming the
conviction and sentence imposed on the appellants? 5) In this appeal, we are
concerned only with A-1, A-2 and A-4, since the other accused A-3 and A-5 were
acquitted by the High Court.
6) Apart
from various materials in the form of oral and documentary evidence, the Trial
Court accepted the evidence of eye-witnesses, namely, PW-3, PW-4, PW-5, 5 PW-6
as well as Dr. Uma Kant PW-7 who treated Renuka, father of the deceased PW-9,
one elderly person of the village PW-10 and Taluk Executive Magistrate PW-12
who had recorded the dying declaration of Renuka. Learned counsel for the
appellants-accused pointed out that as per the prosecution, there were five
witnesses present at the spot of incident, even before the victim was burnt,
but none of them stopped the accused or tried to prevent the incident. He also
submitted that the Trial Court and the High Court committed an error in relying
upon the dying declaration recorded by PW-12 since PW-12 has neither taken the
certificate from the Doctor nor asked any question to verify the mental
condition of the deceased Renuka, particularly, when she suffered 100% burns as
shown in the post-mortem report.
7) At the
foremost, let us verify the evidence of Dr. Uma Kant PW-7 who treated the
injured Renuka when she was brought to the hospital. Though, he had stated that
injured Renuka had sustained 100% burn injuries, at 6 about 4.45 p.m.,
according to him, she was in a fit state of mind to give statement. Based on
the statement of doctor PW-7, Taluka Executive Magistrate PW-12 recorded her
statement in the presence of PW-7. It is further seen that after recording the
statement, her left thumb impression was taken on the statement, the doctor
PW-7 also subscribed his signature. It is true that in the cross- examination
it was elicited that the tongue of the deceased was swollen and protruded and
lips were burnt. Though this suggestion has been admitted by PW-7, the fact
remains at the time of recording her statement PW-7 was satisfied that Renuka
was in a fit condition and in a fit state of mind to make a statement. There is
no reason to disbelieve the version of PW-7 who made initial treatment and he
was very well present during the entire period of recording the statement (Ex.
P-9). We hold that the evidence of PW-7 coupled with PW-12 are acceptable and
support the case of the prosecution.
7 8) Now,
let us discuss the other eye-witnesses, first and foremost is PW-3. According
to him, he is residing in a house adjacent to the deceased Renuka. He explained
that he knew the family members of the appellants and the deceased. He also
explained that sister-in-law of the deceased A-4 desired to give her elder
daughter in marriage to A-1 and because of that Renuka was being assaulted by
the appellants. He deposed that on 10.12.2005 at 12.00 o'clock he heard a
crying sound from the house of the appellants. He along with others went to the
house of the appellants and they found A-1, A-3 and A-5 holding Renuka. A-2 had
a match-box in his hand and A-4 was holding kerosene can. Though he requested
not to cause any harm to Renuka, according to him, the accused person were
holding Renuka and sister-in-law (A-4) poured kerosene. He further asserted
that after setting fire by pouring kerosene accused A-1 to A-4 ran away from
the scene of occurrence. Though, he also implicated A-3 and A-5 in the
commission of offence but 8 in the absence of further corroboration, the High
Court has rightly acquitted them. However, there is no reason to disbelieve the
evidence of PW-3 insofar as A-1, A-2 and A- 4 appellants herein that they were
responsible for the cause of the death of Renuka.
9) The
next witness is Govindappa PW-4, who witnessed the incident and partly
supported the case of the prosecution. He explained how the deceased was
humiliated and harassed by the appellants. According to him, this was narrated
to him by Renuka during her lifetime and on several occasions she had gone to
her native place due to ill-treatment meted out to her at the hands of the
appellants. He also explained that on 10.12.2005 at about 12.00 o'clock, when
he was in his house, he heard cries from the house of the appellants.
He rushed
to their house and saw in the first floor Renuka was in ablaze. As rightly
observed by the High Court, though, PW-4 did not support the entire case of
prosecution and he had been treated as hostile witness, 9 his evidence to the
extent A-2 and A-4 participating in the commission of offence is proved. To
this extent, the High Court has rightly accepted his testimony.
10) The
next eye-witness examined by the prosecution is one - Prakash PW-6. He
explained how Renuka was humiliated and harassed by the appellants and on the
relevant date and time and after hearing the cries he went to the first floor
and found A-1, A-2 and A-5 were holding Renuka, A-4 was holding kerosene can
and A-2 was holding a matchstick. He further deposed that the accused informed
him that it is their family matter and none should interfere. At that time, A-4
poured kerosene on the body of Renuka and A-2 lighted match stick and lit fire
to Renuka and immediately all the accused ran away from the scene of
occurrence. As observed by the High Court, the evidence of PW-6 shows that A-4
poured kerosene and A-2 lit fire. The above statement of PW-6 finds support
from the dying declaration Ex. P-7. His assertion that A-1 was holding Renuka
also finds 10 corroboration from the dying declaration Ex. P-9. In other words,
the evidence of PW-6 clearly proves the participation of A-1, A-2 and A-4 in
the commission of offence.
11)
Krishnappa, father of the deceased was examined as PW-9. He explained how his
daughter was harassed and humiliated by the appellants. He also explained the
desire of A-4 sister-in-law of the deceased to give her elder daughter to A-1.
His evidence gets support from the dying declaration Ex. P-9 and to this extent
the same is acceptable and rightly relied on by the High Court.
12) An
elderly person from the same village had been examined as PW-10 and he also
narrated how the deceased Renuka was humiliated and harassed at the instance of
the appellants.
13) Other
important witness is H.N. Nagaraj, PW-12, Taluka Executive Magistrate. He
deposed before the Court that he had recorded the dying declaration of Renuka
and the same was recorded after ascertaining her condition 11 from PW-7 Dr. Uma
Kant. After noting that Renuka was in a fit state of mind from Dr. Uma Kant
PW-7 and she was in a position to make the statement, in the presence of PW-7
he recorded her statement on 10.12.2005 at 4.45 p.m. He denied the suggestion
that Renuka was not in a position to make a statement.
14) About
dying declaration Ex. P-9, we have already adverted to the evidence of Dr. Uma
Kant (PW-7), Government District Hospital Bagalkot. He explained that on
10.12.2005 at 2.20 p.m. injured Renuka w/o Govindappa Macha was brought with
history of burns on the same day at 1.00 p.m. and she was admitted in the
hospital and treatment was given to her. When Taluka Executive Magistrate
(PW-12) came to the hospital at about 4.45 p.m., he enquired about the mental
condition of the patient and whether she is capable of giving statement for
which PW-7 informed that the patient is in a fit state of mind to give
statement. Accordingly, the statement was recorded in his presence and then
Renuka 12 put her left thumb impression on the said statement and both the
Doctor and the Magistrate also signed on the said statement. It is true that on
the same night at 9.00 p.m.
the
injured expired due to burn injuries and post-mortem was conducted. On
examination of body, he found superficial (epidermal burn) all over the body.
Hyperaemic skin, singeing of hair present, burn 100% few small blisters are
seen over the face containing serous ferrous fluids, skin is red and
hyperaemic, singeing of hair present on head, duramater is leathery, brain is
shrunken and yellow. All the internal organs were congested, coal particles are
seen in nose, mouth, trachea and oseophagus. Found smell of kerosene oil on her
body. He is of the opinion that death is due to shock as a result of 100% burn,
time since death is within 4 to 24 hours.
Accordingly,
he issued the post-mortem report as per Ex. P-5, which bears his signature.
PW-7 has also denied the suggestion that the deceased-Renuka was in the semi-
coma till the death.
13 15)
Though, it was argued that PW-12 Tahsildar has not obtained the certificate
from the Medical Officer regarding condition of the deceased, that itself is
not sufficient to discard the dying declaration (Ex. P-9). What is essential
required is that the person who recorded the dying declaration must be
satisfied that the deceased was in a fit state of mind. The certification by
the doctor is essentially a rule of caution and, therefore, the voluntary and
truthful nature of the declaration can be established otherwise.
The
evidence of doctor (Pw-7) clearly shows that the deceased was in a sound state
of mind while giving the statement before the Tahsildar (PW-12). In such
circumstances, we are of the view that such a dying declaration has got due
weight in the evidence. Further, as stated earlier, the doctor has explained
that though the deceased Renuka sustained 100% burn injuries, she was in a
position to talk. In such circumstances, her statement cannot be rejected on
the ground that she sustained severe burn injuries. Normally, the person on 14
the verge of death will not implicate somebody falsely.
Even if
we accept some contradiction in Ex. P-7 complaint, in the light of Ex. P-9
dying declaration coupled with the evidence of eye-witnesses, there is ample
evidence on record to hold that the appellants ill-treated the deceased Renuka
and subjected her to cruelty by giving both mental and physical torture and in
furtherance of their common intention only to commit the murder of the
deceased, poured kerosene and set fire on her who ultimately succumbed to the
injuries on the same day in the District Hospital, Bagalkot. In our view, dying
declaration (Ex. P- 9) fully corroborates the evidence of Doctor and Tahsildar
who recorded it.
16) The
analysis of the prosecution witnesses, particularly, PW-3, PW-4, PW-10 elderly
person of the village and PW-12 Taluk Executive Magistrate who recorded the
dying declaration of Renuka clearly proves the involvement of appellants in the
commission of offence as charged and they were rightly awarded sentence of life
15 imprisonment. Though, it was pointed out that there were certain discrepancies,
according to us, they all are minimal and it had not affected the case of the
prosecution. As discussed earlier, in view of the oral evidence of PW-3, PW-4,
PW-6, PW-7, PW-9, PW-10, PW- 12 coupled with dying declaration Ex. P-9, we hold
that the prosecution has fully established its case against the appellants and
we are in entire agreement with the conclusion arrived by the High Court.
17) In
the light of the above discussion, we do not find any merit in the appeal,
consequently, the same is dismissed.
..........................................J. (P. SATHASIVAM)
...........................................J. (H.L. DATTU)
NEW DELHI;
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