IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 13TH/22ND DAY OF JULY, 2021

PRESENT

THE HON'BLE MR. JUSTICE R.DEVDAS

AND

THE HON'BLE MS. JUSTICE J.M.KHAZI

CRL.A.NO.100208/2016

BETWEEN:

STATE OF KARNATAKA, REP.BY CHIKKODI POLICE STATION, BELAGAVI DIST. THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

..APPELLANT

AND:

• 1. TAMMANNA BHARAMAPPA BAMBALWADI, AGE: 40 YEARS
• 2. SMT.GEETHA BHARAMAPPA BAMBALWADI, AGE: 54 YEARS

BOTH ARE R/O MUGALI, CHIKKODI TALUK.

…RESPONDENTS

(BY SRI.SANTOSH MALAGOUDAR, ADV.)

(BY SRI.V.M.BANAKAR, ADDL.SPP)

THIS APPEAL IS FILED UNDER SECTION 378 (1) & (3) OF CR.P.C. TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 19.09.2015 PASSED IN S.C.NO.148/2014 BY THE V ADDL. DISTRICT AND SESSIONS JUDGE, BALAGAVI; TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 19.09.2015 PASSED IN S.C.NO.148/2014 BY THE V ADDL. DISTRICT AND SESSIONS JUDGE, BALAGAVI AND CONVICT THE RSPONDENTS/ACCUSED OF THE OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 302 R/W SECTION 34 OF IPC.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.06.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:

JUDGMENT

R.DEVDAS J.:

1. The State has filed this appeal under Section 378(1) & (3) of Cr.P.C. assailing the judgment and order of acquittal dated 19.09.2015 passed by the V Additional District and Sessions Judge, Belagavi in S.C.No.148/2014.

2. The case of the prosecution is that respondent No.1/accused No.1 is the husband and respondent No.2/accused No.2 is the mother-in-law of the complainant/deceased Rajashree. The accused persons in furtherance of their common intention gave physical and mental torture to the deceased Rajashree by suspecting her character that she had an illicit relationship with another person. On 08.03.2014 at about 2.00 p.m. the accused persons in furtherance of their common intention, poured kerosene on the deceased and lit fire. Thereafter, the injured Rajashree was shifted to Chikodi Government Hospital for treatment. After receiving the intimation from the treating doctor, P.W.11 Head Constable-141 rushed to the hospital and requested the doctor to take statement of the injured lady. Thereafter, P.W.16-ASI took down the statement made by the victim and registered a case against the accused persons for the offences punishable under Sections 498A and 307 r/w Section 34 of IPC. At the same time, the police officer sent requisition to the Taluk Executive Magistrate to record the statement of the victim. The Taluk Executive Magistrate recorded the statement, i.e., dying declaration which is marked as Ex.P25. During the course of treatment, the victim succumbed to the injuries on the same day at about 8.15 in the night. Thereafter, offence under Section 302 of IPC was added as a charge.

3. In the statement recorded under Section 313 of Cr.P.C., the accused persons denied the entire incriminating materials found against them and neither examined any witness nor produced any documents on their behalf. On behalf of the prosecution, 8 witnesses were examined while Exs.P1 to P28 were marked and M.O.Nos.1 to 4 were produced.

4. The learned Additional SPP submits that since the victim herself had given the complaint at Ex.P8 and on the basis of which the FIR was registered and since a dying declaration was made by the victim before the Taluk Executive Magistrate which is marked as Ex.P25, the two documents and the evidence surrounding the two documents have been considered by the trial court. The trial court noticed that there was no allegation against accused No.1-husband and in fact it was stated by the victim that her husband was not present at the time of the incident.

5. It was argued on behalf of the accused that the statement and the dying declaration which are produced as Exs.P8 and P25 cannot be believed. It was argued that, in the cross-examination, P.W.8 who is the treating doctor had stated that P.W.11-Head Constable-141 was present at the time of recording Ex.P8. But P.W.11-Head Constable-141 has denied the same. It was noticed that in Ex.P11 which is MLC report, it is mentioned that it was written by Dr.V.V.Shindhe. It was pointed out that the prosecution claims that P.W.16 had written Ex.P8, but P.W.8 has stated that Head Constable-141 had written it and therefore, there were lot of discrepancies in

the case of the prosecution. The discrepancy between the evidence of P.W.18-Investigating Officer and the evidence of P.W.8-doctor would make it clear that there were contradictions. It was also argued on behalf of the accused that Ex.P13 Form No.146(ii) shows that the entire body of the victim was burnt, including foot. Therefore, it was argued that the version of the doctor and the Investigating Officer that since the victim was not able to affix her signature as both the hands were burnt, therefore, the impression of the big toe of the right foot was taken on the statement and the dying declaration is contrary to the evidence on record.

6. The trial court noticed that P.W.2 mother of the deceased had not supported the prosecution wholeheartedly. It was noticed that since P.W.2 had turned hostile and was cross-examined by learned Public Prosecution and in crossexamination, P.W.2 had denied the suggestion that accused were torturing the deceased by suspecting her chastity. It was also noticed that P.W.2 had stated in her deposition that she saw her daughter completely burnt and she was not in a position to speak.

7. However, the learned Additional SPP submits that the duty doctor had certified that the victim was in a fit state to give her statement and the Taluk Executive Magistrate having recorded the dying declaration, the statement of P.W.2 who had turned hostile should not have been accepted by the trial court. Learned Additional SPP submits that P.W.17-Taluk Executive Magistrate had entered the witness box and has been thoroughly cross-examined. Nevertheless, the trial court has wrongly come to a conclusion that since the Taluk Executive Magistrate had not obtained the certificate of the doctor regarding condition of the injured and it was established by the defence that some other person had recorded the dying declaration and therefore, there was serious doubts created with regard to the dying declaration. However, the learned Additional SPP submits that Ex.P14-post mortem report establishes the fact that there were superficial and deep burn injury over whole body except genitalia and both feet. Therefore, the argument of the defence counsel that the impression of the bit toe of the deceased could not have been taken is contrary to the evidence on record and therefore such contention should not have been accepted by the trial court.

8. P.W.2 mother of the deceased had admitted in the cross-examination that her daughter had told her in the hospital that her mother-in-law, accused No.2 had alleged that she had an illicit relationship with some person and therefore, she should leave the house and go with him. The mother-inlaw snatched the child from the victim, poured kerosene over her, lit fire, closed the door and went out. In this regard, the learned SPP places reliance on a decision of the Hon'ble Supreme Court in the case of Parveen Vs State of Haryana (1996) 11 SCC 365 to contend that if a witness had turned hostile to the case of the prosecution, such evidence to the extent which is favourable to the case of prosecution was required to be considered.

9. As regards Ex.P25-dying declaration, learned Additional SPP submits that in Koli Chunilal Savji V. State of Gujarat ((1999) 9 SCC 562, the Hon'ble Supreme Court has held that requirement of doctor's endorsement as to mental fitness of the deceased was "only a rule of prudence" and the ultimate test was whether the dying declaration was truthful and voluntary. It was held that the Magistrate who recorded the dying declaration was examined as a witness and he categorically deposed that at the hospital, on being asked, the doctor told her that the deceased was conscious and in a fit mental condition. It was held that it was sufficient to come to conclusion that dying declaration was proper and could be relied upon.

10. Per contra, learned counsel for the respondentsaccused submits that, when admittedly the victim had suffered 99% of burn injuries, there will be an acute deficiency of water and the brain deteriorated every minute. This aspect was elicited from the mouth of P.W.8-doctor and therefore, the trial court has rightly come to a conclusion that dying declaration is doubtful and cannot be relied upon. Learned counsel submits that through P.Ws.6 and 7, in the crossexamination, the accused have set up a defence that, on the fateful day the deceased was caught in a compromising position with her paramour and when the mother-in-law, accused No.2 found them in such a condition and shouted at them, the neighbours also gathered. P.Ws.6 and 7 have stated

that they saw the other person running away from the house of the deceased. Unable to bear the shame, the victim herself poured kerosene, lit fire and attempted to commit suicide. For the very same reason, it is submitted that the victim has falsely implicated accused No.2-mother-in-law, since she had a grudge against her mother-in-law who always suspected that the victim had an illicit relationship with the neighbour and on the fateful day, she was caught red-handed.

11. Heard the learned Additional SPP, learned counsel for the respondents-accused and perused the trial court records.

12. Testing the veracity of Exs.P8 and P25, which are the statements made by the deceased just before her death form the crux of the matter. Therefore, we are required to consider the said two documents carefully.

13. As regards Ex.P8, we find that Head Constable-141 who was examined as P.W.11 has stated in his deposition that on 08.03.2021 when an information was received from the hospital, he went to the hospital and enquired from the doctor as to whether the victim was in a position to give her statement. He has stated that the doctor said that she was in a fit state to give her statement. He has stated that the doctor gave a written certification that the victim was in a fit state to give her statement. He has taken down the statement. In the cross-examination, he stated that handwriting in Ex.P10 is his own handwriting. The duty doctor (P.W.8) who was present in the hospital when the victim was brought in the ambulance, has stated that accused No.1 had come along with the victim in the ambulance. He stated that victim told him that her mother-in-law accused No.2 poured kerosene over her and lit fire. He stated that he informed Chikodi Police on telephone. He has stated that when the police came to record the statement of the victim, they asked whether the victim was in a position to give her statement. He confirmed that she is in a position to give her statement and thereafter, the police recorded the statement of the victim. He has also stated during the cross-examination that since both hands of the victim were burnt, the impression of big toe of the right leg of the victim was taken on the statement, Ex.P8. The doctor (P.W.9) who conducted the postmortem has entered the witness box and has re-iterated the information available in the postmortem report that genetelia and two legs of the victim were not burnt.

14. The Taluk Executive Magistrate (P.W.17) in the cross-examination has stated that, although he did not asked the duty doctor who was present when he went to record the statement of the victim, as to whether the victim was in a position to give her statement, nevertheless, he has stated that police had sent the requisition to record the statement of the victim and they had confirmed that the victim was in a position to give her statement. He further stated that at the time of recording the statement of the victim, the medical staff were also present.

15. The Hon'ble Supreme Court in the case of Vikas and Others Vs State of Maharashtra (2008) 2 SCC 516, while re-iterating the principles underlying admissibility of dying declaration, held that the principles are reflected in the well-known legal maxim; nemo moriturus praesumitur mentire i.e., a man will not meet his Maker with a lie in his mouth. A dying man is face to face with his Maker without any motive for telling a lie. Their Lordships noticed that "Truth" said Mathew Arnold, "sits upon the lips of a dying man". While analyzing Clause(1) of Section 32 of the Indian Evidence Act, it was held that Clause(1) of Section 32 of the Act has been enacted by the legislature advisedly as a matter of necessity as an exception to the general rule that "hearsay evidence" is "no evidence" and the evidence which cannot be tested by cross-examination of a witness is not admissible in a court of law. It was further held that requirement of administering oath and cross-examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. Their Lordships in great detail analyzed the development of law surrounding dying declaration. It was noticed that in Koli Chunilal Savji (supra), the Hon'ble Supreme Court has held that requirement as to doctor's endorsement as to mental fitness of the deceased was "only a rule of prudence" and the ultimate test was whether the dying declaration was truthful and voluntary. In Ravi Chander Vs State of Punjab (1998) 9 SCC 303, the Hon'ble Supreme Court has held that, in the absence of any circumstance or material on record to establish that the Executive Magistrate had any animus against the person or was in any way interested in fabricating the dying declaration, it ought to be accepted.

16. Having regard to the declaration of law at the hands of the Hon'ble Supreme Court, when we analyze the evidence on record, we find that there are two statements recorded from the victim, Ex.P8 and Ex.P25. Ex.P8 is the statement recorded by the ASI (P.W.16) in the presence of the Head Constable-141 and it contains the certificate of the treating doctor, certifying that the statement is recorded in his presence. Ex.P9 is the written letter given by the Station House Officer to the duty doctor seeking his opinion as to whether the victim was in a fit state to record her statement. A certification is made on the very same document which is marked as Ex.P9(a) by the treating doctor certifying that the victim is in a fit state to give her statement. The statement Ex.P8 was recorded by the police at 4.55 p.m., and the dying declaration Ex.P25 was recorded by the Taluk Executive Magistrate was about 5.00 p.m. i.e., a few minutes after certificate was issued by the duty doctor regarding the condition of the victim to record her statement. There is

nothing on record to suggest any animus on the part of the Taluk Executive Magistrate to indict the accused persons.

17. In our considered opinion, the statement given by the victim on the date of the incident i.e., on 08.03.2014 at about 4.55 p.m. to the police and few minutes thereafter, the dying declaration given by the victim to the Taluk Executive Magistrate cannot be impeached just because there is some discrepancy as regards presence of the person while recording the statement. As noticed above, so long as the dying declaration is reliable, truthful and voluntary, it ought to be accepted.

18. As per dying declaration, the victim has clearly stated that it is only her mother-in-law, accused No.2, who poured kerosene on her and lit fire after snatching the child from the hands of the victim. In fact she has stated that her husband, accused No.1 is a good person and he did not take sides with his mother in alleging that the victim had an illicit relationship with a neighbour. There is no allegation by the victim against her husband, accused No.1.

19. For the forgoing reasons, we do not hesitate to hold that appreciation of evidence and finding given by the trial court is perverse. Consequently, the impugned judgment and order of acquittal is required to be interfered with. Accordingly, the appeal is allowed in part. The judgment and order of acquittal dated 19.09.2015 passed by the V Additional District and Sessions Judge, Belagavi in S.C.No.148/2014 is set aside and we hold that accused No.2, respondent No.2 herein is guilty of causing the death of the deceased Rajashree.

20. To hear on sentence.

(Sd-) JUDGE

(Sd-) JUDGE

MBS/-

ORDER ON SENTENCE

1. On 13.07.2021 this Court had pronounced the judgment setting aside the impugned judgment and order of acquittal in S.C. No.148/2014 and held that accused No.2/respondent No.2 is guilty of causing death of her daughter-in-law i.e., deceased Rajashree.

2. The matter is listed today to hear on sentence.

3. We had directed issuance of non-bailable warrant against the accused No.2 / respondent No.2 to ensure that she is present before the Court to enable this Court to hear the accused on sentence.

4. The accused No.2 / respondent No.2 has been produced before the Court by Woman Head Constable 2189 Smt.R.B.Bhajantri and Police Constable 3036 Sri.S.B.Talandge of Chikkodi Police Station.

5. The accused is present before the Court. Learned counsel for the respondents-accused submits that although this court has held that respondent No.2/accused No.2 is

guilty of causing the death of the deceased Rajashree, who is none other than the daughter-in-law of the respondent No.2/accused No.2, however, the evidence available on record show that, on the fateful day the deceased was found in compromising position with a neighbour and in fact the respondent No.2/accused No.2 had warned the deceased earlier also that she should mend her ways. It is the defence set up on behalf of the accused that, being ashamed of the deceased being caught red-handed, unable to bear the shame, the deceased committed suicide by pouring kerosene on herself and lighting up. Nevertheless, the learned counsel submits that it is not a case of premeditated or predetermined murder. It is something that has happened in a spur of moment, due to grave provocation by the conduct of the deceased and therefore, it should be read down as the case falling under Part II of Section 304 of IPC.

6. Per contra, learned Additional SPP submits that the charge levelled against the accused persons is under Sections 498A and Section 302 r/w Section 34 of IPC. This Court has found that dying declaration by the deceased clearly points out to the guilt of respondent No.2/accused No.2, her mother-in-law in respect of Section 302 of IPC. The deceased had clearly stated that it is respondent No.2/accused No.2 who was always accusing her regarding her fidelity and on the fateful day when the deceased sat for having lunch with the child in hand, respondent No.2/accused No.2 came and snatched the child from the hands of the deceased and thereafter proceeded to pour kerosene and lit fire. We have noticed that there is no allegation against respondent No.1/accused No.1 and definitely no allegation regarding subjecting the deceased to cruelty attracting the provisions of Section 498A of IPC. Therefore, we have concluded that the charge under Section 498A of IPC is not attracted.

7. Having considered the submissions of the learned counsel for the respondents/accused and the learned Additional SPP, we are of the considered opinion that respondent No.2/accused No.2 is guilty of murdering her daughter-in-law and therefore, she has to be convicted and sentenced for the same charge. The submission of the learned counsel for respondent No.2/accused No.2 that the case falls under Part II of Section 304 of IPC cannot be accepted. However, this is not a case which falls under the category of

rarest of rare cases as enunciated by the Hon'ble Supreme Court in various judgments. Consequently, respondent No.2/accued No.2 is sentenced to undergo imprisonment for life and to pay fine of `5,000/-, in default, to undergo simple imprisonment for one year.

8. The respondent No.2-accused No.2 is entitled for the benefit of set off for the period during which she is in judicial custody (if any) during the trial, in terms of Section 428 of Cr.P.C.

9. The registry is directed to issue warrant of commitment (conviction warrant) to the prison.

10. A copy of this judgment shall be furnished to the respondent No.2-accused No.2 forthwith, free of cost.

(Sd/-) JUDGE

(Sd/-) JUDGE

Rsh/MBS