Though parents turned hostile, the dying declaration and corroborative evidence is enough to bring the accused under Section 304 Part-II of the IPC and sentenced him to undergo
RI for six years and to pay a fine of Rs.1,000/-, in default, to undergo
further sentence of three months. =
Dying Declaration once
the doctor who examined the deceased, himself states that the deceased was
in a position to make a statement and that she was conscious, absence of
his endorsement on the statement to that effect is of no consequence. =
PW-4 Dr. Parthasarathy’s cross-examination has not yielded any
material which could be said to be favourable to the defence. In the cross-
examination he stated that on 17/10/1991 he was on duty from 2.00 p.m. to
8.00 p.m. After he attended the last patient at 8.00 p.m. another doctor
relieved him. He added that after 8.00 p.m. he was working in the ward.
He stated that till morning of 18/10/1991 he was on duty in the Burns Ward.
He stated that Gowramma was admitted in Casualty Ward. He advised that
she should be taken to Burns Ward but before sending her to Burns Ward he
recorded her statement. He further stated that he started Gowramma’s
treatment in Burns Ward. He gave her sedatives but he has categorically
denied the suggestion that when he recorded the statement of Gowramma she
was not in a position to give statement. He denied the suggestion that she
was not conscious. This shows that when Gowramma gave statement she was
not under the effect of sedatives.
13. Evidence of PW-4 Dr. Parthasarathy inspires confidence. There is no
reason why he should make-up a story. There is nothing on record to show
that he harboured any grudge against the appellant. He is an independent
witness who has given his evidence in a forthright manner. His evidence
establishes to the hilt that Gowramma was in a fit mental condition to make
a statement and she implicated her husband. He stated that he made an
endorsement on the Gowramma’s statement recorded by PW-5 HC Ramachari. The
High Court has noted that PW-4 Dr. Parthasarathy has made endorsement on
Exhibit-P19 that Gowramma was in a fit condition to make a statement. The
High Court has also noted that in Exhibit-17, which is the case sheet of
Gowramma, it is stated that she was conscious. But, assuming he has not
made any endorsement on Gowramma’s dying declaration that she was in a fit
state of mind to make a statement that does not affect the credibility of
the prosecution story. He stated on oath in the court that Gowramma was in
a position to give statement and, therefore, he permitted PW-5 HC Ramachari
to record her statement. An independent professional like PW-4 Dr.
Parthasarathy must be trusted when he makes such a categorical statement
with a sense of responsibility.
Moreover, in Laxman v. State of
Maharashtra[8] this Court has made it clear that certification by the
doctor about the fitness of the declarant’s mind is a rule of caution.
But, if the doctor certifies that the patient was conscious, but does not
certify that he was in a fit state of mind, the dying declaration is not
liable to be rejected if the Magistrate who records the statement deposes
about the fit state of mind of the declarant. That would be sufficient to
give the dying declaration legal acceptability.
Besides, PW-4 Dr. Parthasarathy stated that Gowramma had received 34%
burns. She died about five days after the incident. Therefore, it is not
possible to hold that she could not have made any dying declaration.
It is
argued that PW-4 Dr. Parthasarathy’s presence in the hospital is doubtful.
It is true that PW-4 Dr. Parthasarathy stated that he was relieved from
Emergency Ward at 8.00 p.m. But, he has clarified that he was in Burns
Ward till morning of 18/10/1991. There is no reason to doubt his
statement.
In the ultimate analysis, therefore, we are of the view that the High
Court was perfectly justified in interfering with the trial court’s order.
The acquittal of the appellant was wrongly recorded. The High Court,
however, adopted a kindly approach and convicted the appellant under
Section 304 Part-II of the IPC and sentenced him to six years RI because
the incident is of the year 1991. Surprisingly, the appellant has made a
grievance about this and stated that the appellant’s case does not fall
under Section 300 of the IPC and, therefore, it cannot fall under any of
its exceptions and that the High Court has not assigned any reasons for
convicting the appellant under Section 304 Part-II. This submission
deserves to be rejected. Besides, the High Court has given reasons. So,
it is wrong to say that no reasons are assigned by the High Court. Since
the State has not approached this Court with a grievance that the sentence
awarded is too low and should be enhanced, we refrain from commenting on
this argument. Judgment of this Court in State of U.P. v. Virendra
Prasad[10] is not at all applicable to this case and hence, it is not
necessary to discuss it. The High Court was merciful. In the absence of
State appeal, at this distance of time, we are inclined to simply dismiss
the appeal. The appeal is, therefore, dismissed. The appellant is on
bail. His bail bonds stand cancelled. He shall surrender before the
concerned court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1223 OF 2008
ANJANAPPA …Appellant
Versus
STATE OF KARNATAKA …Respondent
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. This appeal, once again like many other appeals, presents before us
the plight of a woman who is burnt to death by her husband. Sadly, her parents turned hostile in the court.
This raises the serious question of witness protection which is not addressed as yet.
2. Deceased Gowramma was married to the appellant on 17/04/1987. It is
the prosecution case that at the time of marriage the appellant demanded
dowry and he received Rs.5,000/-, a motor bike, one gold chain and clothes
from Hanumantharayappa, the father of Gowramma. After marriage the
appellant was harassing the deceased for bringing more dowry from her
parents. The harassment was both physical and mental. The appellant had
caused burn injuries on the thighs of Gowramma to compel her to bring more
dowry.
He had kept one Puttamma as his mistress, which caused mental agony
to Gowramma.
On 17/10/1991 there was a quarrel between the appellant and
Gowramma on the question of transferring Gowramma’s property in the
appellant’s name.
At about 6.00 p.m. the appellant poured kerosene on her
and set her on fire. Gowramma was taken to the Victoria hospital.
At about
7.00 p.m. PW-4 Dr. Parthasarathy admitted her for treatment of burn
injuries.
When PW-4 Dr. Parthasarathy asked her about the burn injuries
she told him that on the same day at about 6.30 p.m. the appellant had
poured kerosene on her and set her on fire.
He recorded the said
occurrence in the Accident Register. Gowramma’s statement recorded by him
is at Exhibit-P16(b).
He reported the matter to the police. PW-5 HC
Ramachari of Vijayanagara Police Station came to the hospital on 17/10/1991
at about 10.30 p.m. and sought permission to record the statement of
Gowramma from PW-4 Dr. Parthasarathy.
As Gowramma was in a position to
give statement PW-4 Dr. Parthasarathy permitted PW-5 HC Ramachari to obtain
her statement.
Thereafter, PW-5 HC Ramachari recorded her statement in
Burns Ward, which is Exhibit P-19. She stated that her husband had poured
kerosene on her and set her on fire. PW-4 Dr. Parthasarathy put an
endorsement on the said statement and signed it.
After recording the
statement of Gowramma, PW-5 HC Ramachari presented the memo Exhibit-P18 and
statement Exhibit-P19 before the Station House Officer.
PW-6 S.
Nanjundappa, who was at the relevant time, working as ASI, Vijayanagara
Police Station, recorded the FIR at about 11.30 p.m. on 17/10/1991 on the
basis of Gowramma’s statement Exhibit-P19.
The appellant came to be
arrested and charged for offences under Sections 3 and 6 of the Dowry
Prohibition Act, 1961 and under Sections 498A and 302 of the IPC.
3. The prosecution examined eight witnesses. Apart from the police
witnesses and the doctor, the prosecution examined PW-2 Chikkaeeramma,
mother of Gowramma and PW-3 Hanumantharayappa, father of Gowramma.
4. The trial court acquitted the appellant.
The trial court inter alia
held that the dying declaration could not be relied upon because the doctor
has not made any endorsement as to whether the deceased was in a fit
condition to make a statement.
The trial court held that the deceased was
given sedatives, therefore, in all probability she was not in a fit
condition to make a dying declaration.
In the opinion of the trial court
it is doubtful whether the doctor was present when the dying declaration
was being recorded.
The fact that the parents of the deceased did not
support the prosecution case weighed with the trial court.
5. The State of Karnataka carried an appeal to the High Court. The High
Court by the impugned order set aside the order of acquittal, convicted the
appellant under Section 304 Part-II of the IPC and sentenced him to undergo
RI for six years and to pay a fine of Rs.1,000/-, in default, to undergo
further sentence of three months. The said judgment and order is
challenged in this appeal.
6. We have heard learned counsel for the parties. We have read written
submissions filed on behalf of the appellant. Mr.Shekhar Devasa, learned
counsel for the appellant submitted that the prosecution case that the
appellant poured kerosene on the deceased and set her on fire is not
supported by the parents of deceased Gowramma. They stated that the death
of Gowramma was accidental. This affects the veracity of the prosecution
case. Counsel submitted that
the dying declaration of deceased Gowramma
cannot be relied upon because PW-4 Dr. Parthasarathy has stated that he had
given sedatives to the deceased.
The deceased, therefore, could not have
been in a fit condition to make a dying declaration.
Besides, the doctor
has not made any endorsement to that effect on the dying declaration.
The
doctor has not stated that kerosene smell was emanating from the body of
the deceased.
This is also not mentioned in Exhibits P16, 17 and 19.
There is a serious doubt about the doctor’s presence when the dying
declaration was being recorded.
Counsel submitted that in the
circumstances the dying declaration must be rejected.
In support of this
submission he relied on Nallapati Sivaiah v. Sub-Div. Officer, Guntur
A.P.[1], Mehiboobasab Abbasabi Nadaf v. State of Karnataka[2], Rasheed
Beg and ors. v. State of M.P.[3] and Kake Singh @ Surendra Singh v.
State of M.P.[4].
7. Counsel submitted that there is a delay in recording FIR. Counsel
further submitted that the FIR was recorded at 10.30 p.m. on 17/10/1991.
But, it reached the Magistrate at 4.30 p.m. on 18/10/1991. This delay
casts a shadow of doubt on the FIR. In this connection he relied on Bijoy
Singh and Anr. v. State of Bihar[5] and Meharaj Singh v. State of
U.P.[6]. Counsel further submitted that motive is not proved. There is
also discrepancy in the timing of the dying declaration. Counsel submitted
that the conviction of the appellant under Section 304 Part-II of the IPC
is not maintainable as his case does not come within the purview of Section
300 of the IPC. It, therefore, cannot fall in the exceptions thereto.
Besides, no reasons are assigned for convicting the appellant under Section
304 Part-II of the IPC which renders the order of conviction unsustainable.
In this connection he relied on State of U.P. v. Virendra Prasad[7].
Counsel submitted that in the circumstances the impugned judgment and order
deserves to be set aside.
8. Ms. Anita Shenoy, learned counsel for the State of Karnataka, on the
other hand, submitted that parents of the deceased were won over by the
appellant. However, the prosecution story is established by the
independent evidence of PW-4 Dr. Parthasarathy and PW-5 HC Ramachari, who
have deposed about the dying declaration of the deceased. In her dying
declaration the deceased has implicated the appellant. Counsel submitted
that the dying declaration inspires confidence and, therefore, the appeal
deserves to be dismissed.
9. It is well settled that an order of acquittal is not to be set aside
lightly. If the view taken by the trial court is a reasonably possible
view, it is not to be disturbed. If two views are possible and if the view
taken by the trial court is a reasonably possible view, then the appellate
court should not disturb it just because it feels that another view of the
matter is possible. However, an order of acquittal will have to be
disturbed if it is perverse. We have examined the trial court’s order of
acquittal in light of above principles. We are of the considered opinion
that the High Court was justified in setting it aside as it is perverse.
10. What has weighed with the trial court is the fact that the parents
have turned hostile. They came out with a story which even the appellant
did not have in mind. He merely denied the prosecution story. The parents
stated that the deceased was heating water on stove. She caught fire
accidentally and sustained burn injuries. If this was true, the appellant
would have stated so in his statement recorded under Section 313 of the
Code of Criminal Procedure (“the code”). We have perused the evidence of
the parents. We have no doubt that they were either won over by the
appellant or pressurized into supporting the appellant. Their evidence is
a tissue of lies. In any case, even if it is obliterated and kept out of
consideration, there is sufficient other evidence on record to establish
the appellant’s guilt.
11. PW-4 Dr. Parthasarathy is an independent witness. He stated that on
17/10/1991 at 7.00 p.m. he admitted deceased Gowramma in the Victoria
Hospital. Her husband and mother had accompanied her. On a query made by
him, she told him that on the same day at 6.30 p.m. the appellant had
poured kerosene on her and set her on fire. He, then, recorded the
occurrence in the Accident Register. The relevant pages of the Accident
Register are on record at Exhibit-P16(a). The statement of the deceased is
at Exhibit-P16(b) and the signature of the witnesses is at Exhibit-P(c).
According to PW-4 Dr. Parthasarathy, Gowramma had received 34% burn
injuries. Exhibit-P17 is the case sheet of Gowramma. He stated that
Gowramma died on 21/10/1991 at 7.30 p.m. He reported the case to the
police vide Memo dated 17/10/1991, which is at Exhibit-P18. PW-4 Dr.
Parthasarathy further stated that at 11.00 p.m. on the same day PW-5 HC
Ramachari of Vijayanagara Police Station came to the hospital and sought
permission to record Gowramma’s statement. As Gowramma was in a position
to give statement he permitted PW-5 HC Ramachari to record her statement.
Thereafter, PW-5 HC Ramachari recorded Gowramma’s statement in Burns Ward.
PW-4 Dr. Parthasarathy reiterated that even at that time Gowramma repeated
the story that her husband poured kerosene on her and set her on fire. He
stated that he made endorsement on that statement. The said statement is
at Exhibit-19, the endorsement is at Exhibit-P19(a) and his signature is at
Exhibit-P19(b).
12. PW-4 Dr. Parthasarathy’s cross-examination has not yielded any
material which could be said to be favourable to the defence. In the cross-
examination he stated that on 17/10/1991 he was on duty from 2.00 p.m. to
8.00 p.m. After he attended the last patient at 8.00 p.m. another doctor
relieved him. He added that after 8.00 p.m. he was working in the ward.
He stated that till morning of 18/10/1991 he was on duty in the Burns Ward.
He stated that Gowramma was admitted in Casualty Ward. He advised that
she should be taken to Burns Ward but before sending her to Burns Ward he
recorded her statement. He further stated that he started Gowramma’s
treatment in Burns Ward. He gave her sedatives but he has categorically
denied the suggestion that when he recorded the statement of Gowramma she
was not in a position to give statement. He denied the suggestion that she
was not conscious. This shows that when Gowramma gave statement she was
not under the effect of sedatives.
13. Evidence of PW-4 Dr. Parthasarathy inspires confidence. There is no
reason why he should make-up a story. There is nothing on record to show
that he harboured any grudge against the appellant. He is an independent
witness who has given his evidence in a forthright manner. His evidence
establishes to the hilt that Gowramma was in a fit mental condition to make
a statement and she implicated her husband. He stated that he made an
endorsement on the Gowramma’s statement recorded by PW-5 HC Ramachari. The
High Court has noted that PW-4 Dr. Parthasarathy has made endorsement on
Exhibit-P19 that Gowramma was in a fit condition to make a statement. The
High Court has also noted that in Exhibit-17, which is the case sheet of
Gowramma, it is stated that she was conscious. But, assuming he has not
made any endorsement on Gowramma’s dying declaration that she was in a fit
state of mind to make a statement that does not affect the credibility of
the prosecution story. He stated on oath in the court that Gowramma was in
a position to give statement and, therefore, he permitted PW-5 HC Ramachari
to record her statement. An independent professional like PW-4 Dr.
Parthasarathy must be trusted when he makes such a categorical statement
with a sense of responsibility.
Moreover, in Laxman v. State of
Maharashtra[8] this Court has made it clear that certification by the
doctor about the fitness of the declarant’s mind is a rule of caution.
But, if the doctor certifies that the patient was conscious, but does not
certify that he was in a fit state of mind, the dying declaration is not
liable to be rejected if the Magistrate who records the statement deposes
about the fit state of mind of the declarant. That would be sufficient to
give the dying declaration legal acceptability.
On the same analogy once
the doctor who examined the deceased, himself states that the deceased was
in a position to make a statement and that she was conscious, absence of
his endorsement on the statement to that effect is of no consequence.
Besides, PW-4 Dr. Parthasarathy stated that Gowramma had received 34%
burns. She died about five days after the incident. Therefore, it is not
possible to hold that she could not have made any dying declaration.
It is
argued that PW-4 Dr. Parthasarathy’s presence in the hospital is doubtful.
It is true that PW-4 Dr. Parthasarathy stated that he was relieved from
Emergency Ward at 8.00 p.m. But, he has clarified that he was in Burns
Ward till morning of 18/10/1991. There is no reason to doubt his
statement.
14. PW-5 HC Ramachari has corroborated PW-4 Dr. Parthasarathy. He stated
that on 17/10/1991 when he received the information he went to the Victoria
Hospital. He requested PW-4 Dr. Parthasarathy to allow him to record the
statement of Gowramma. PW-4 Dr. Parthasarathy told him that he could
record her statement and accompanied him to Burns Ward. He found that
Gowramma was in a position to talk. He, then, recorded her statement which
is at Exhibit-P19. He further stated that Gowramma told him that at 6.00
p.m. the appellant demanded that house property should be transferred to
his name and then he poured kerosene on her and set her on fire. He, then,
presented Memo Exhibit-P18 to the Station House Officer. Thus, evidence of
PW-4 Dr. Parthasarathy is fully corroborated by this witness. We have no
hesitation to record that both these witnesses are truthful and the trial
court erred in rejecting their evidence.
15. As we have already noted, PW-2 Chikkaeeramma and PW-3
Hanumantharayappa have turned hostile. It is apparent that they have tried
to help the appellant. In that effort they have come out with the
accidental death theory which was not even urged by the appellant. The
appellant could have very easily come out with it in his statement recorded
under Section 313 of the Code. PW-2 Chikkaeeramma and PW-3
Hanumantharayappa are, therefore, completely exposed. It is sad that even
parents did not stand by their daughter. We do not understand how a woman,
particularly a mother, turned her back on the daughter. Possibly these
witnesses were bought over by the appellant. Such conduct displays greed
and lack of compassion. If they were threatened by the appellant and were
forced to depose in his favour it is a sad reflection on our system which
leaves witnesses unprotected. The reasons why witnesses so frequently turn
hostile need to be ascertained. There is no witness protection plan in
place. In Zahira Habibullah Sheikh (5) v. State of Gujarat[9] this
Court spoke about importance of witnesses and their protection. The
relevant paragraphs read as under:
“ “Witnesses” as Bentham said: are the eyes and ears of justice.
Hence, the importance and primacy of the quality of trial process. If
the witness himself is incapacitated from acting as eyes and ears of
justice, the trial gets putrefied and paralysed, and it no longer can
constitute a fair trial. The incapacitation may be due to several
factors, like the witness being not in a position for reasons beyond
control to speak the truth in the court or due to negligence or
ignorance or some corrupt collusion. Time has become ripe to act on
account of numerous experiences faced by the courts on account of
frequent turning of witnesses as hostile, either due to threats,
coercion, lures and monetary considerations at the instance of those
in power, their henchmen and hirelings, political clouts and patronage
and innumerable other corrupt practices ingeniously adopted to smother
and stifle the truth and realities coming out to surface rendering
truth and justice, to become ultimate casualties. Broader public and
societal interests require that the victims of the crime who are not
ordinarily parties to prosecution and the interests of the State
represented by their prosecuting agencies do not suffer even in slow
process but irreversibly and irretrievably, which if allowed would
undermine and destroy public confidence in the administration of
justice, which may ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice
of rule of law, enshrined and jealously guarded and protected by the
Constitution. There comes the need for protecting the witness. Time
has come when serious and undiluted thoughts are to be bestowed for
protecting witnesses so that the ultimate truth is presented before
the court and justice triumphs and that the trial is not reduced to a
mockery.
… … …
… … …
The State has a definite role to play in protecting the witnesses, to
start with at least in sensitive cases involving those in power, who
have political patronage and could wield muscle and money power, to
avert trial getting tainted and derailed and truth becoming a
casualty. As a protector of its citizens it has to ensure that during
a trial in the court the witness could safely depose the truth without
any fear of being haunted by those against whom he had deposed… … ….”
We share the above sentiments. Unless the witnesses are protected
the rise in unmerited acquittals cannot be checked. It is unfortunate that
this important issue has not received necessary attention.
16. In any case, the trial court should have seen through the insincerity
and dishonesty of PW-2 Chikkaeeramma and PW-3 Hanumantharayappa and having
regard to the independent evidence of PW-4 Dr. Parthasarathy, which is
corroborated by the evidence of PW-5 HC Ramachari the trial court should
have held that the deceased was in a fit mental condition to make a dying
declaration and, therefore, her dying declaration can be relied upon.
17. It is well settled that a conviction can be based on a dying
declaration recorded properly when the declarant is in a fit mental
condition to make it. It should be truthful and voluntary. All these
tests are satisfied in the present case. Judgments on which reliance is
placed by the appellant’s counsel are not applicable to the case on hand.
In Nallapati the medical evidence on record and other attendant
circumstances were altogether ignored and dying declaration was relied
upon. In those circumstances this Court while reiterating its view in
Laxman rejected the dying declaration in the peculiar facts of the case.
In Mehiboobasab the deceased wife had made four dying declarations in which
she had taken contradictory stands. This Court was primarily dealing with
inconsistent dying declarations. While observing that a conviction can
indisputably be based on a dying declaration if it is voluntarily and
truthfully made this Court set aside the conviction based on the dying
declarations on the ground of their inconsistency. Inconsistency in dying
declaration is not a ground of attack in this case. In any case, there is
consistency between the statement of Gowramma recorded by PW-4 Dr.
Parthasarathy, which is at Exhibit-P16(b), the history recorded in
Gowramma’s case sheet, which is Exhibit-P17 and statement of Gowramma
recorded by PW-5 HC Ramachari, which is at Exhibit-P19. This judgment is,
therefore, not applicable to the present case. Rasheed Beg also turns on
its own facts. There in the second dying declaration two additional names
were added. This Court found it not safe to rely on the dying
declarations. This judgment must be restricted to its own facts and has no
application to the present case. In Kake Singh a good part of the brain
of the deceased was burnt. The doctor had not categorically stated that
the deceased was conscious when he made the dying declaration. Hence, no
reliance was placed on it. In the present case the doctor has
categorically stated that the deceased was in a position to make a
statement. No parallel can, therefore, be drawn from Kake Singh. The
doctor’s evidence which is supported by the evidence of PW-5 HC Ramachari
and other attendant circumstances establishes that the dying declaration of
Gowramma is truthful and it was voluntarily made by her when she was in a
fit state of mind.
18. There is also no substance in the submission that there is no motive.
The appellant wanted the property standing in the name of the deceased to
be transferred to his name, which the deceased was not prepared to do.
There is no reason to disbelieve PW-5 HC Ramachari on this aspect.
19. Besides, the conduct of the appellant speaks volumes. He was
absconding and could be arrested only on 19/02/1992. Moreover, in his
statement recorded under Section 313 of the Code he has not explained how
the deceased received burn injuries. He did not set up the defence of
alibi. It was obligatory on him to explain how the deceased received burn
injuries in his house. His silence on this aspect gives rise to an adverse
inference against him. It forms a link in the chain of circumstances which
point to his guilt.
20. Minor discrepancy in the time of recording of dying declaration
creates no dent in the prosecution story which is, otherwise, substantiated
by reliable evidence. Certain documents like inquest panchanama and post-
mortem notes do not state that kerosene smell was emanating from the body
of Gowramma. When there is overwhelming evidence on record to establish
that kerosene was poured on Gowramma and she was set on fire, it is absurd
to argue that the prosecution case should be disbelieved because it is not
mentioned in certain documents that kerosene smell was emanating from her
body.
21. The submission that there is delay in lodging the FIR must be
rejected. PW-5 HC Ramachari recorded the dying declaration at about 10.30
p.m. on 17/10/1991. He, then, presented Memo Exhibit-P18 to the Station
House Officer. Thereafter, PW-6 ASI S. Nanjudappa of Vijayanagara Police
Station recorded the FIR at about 11.30 p.m. In the facts of this case, we
find that there is no delay in recording the FIR. Hence, it is not
necessary to refer to Meharaj Singh which is relied upon on this aspect.
22. Similarly, we find that there is no unexplained delay in forwarding
FIR to the Magistrate. FIR was recorded at about 11.30 p.m. on 17/10/1991.
PW-6 ASI S Nanjudappa has explained that since the constable was going to
the Court on the next day, he gave the FIR to him on the next day i.e.
18/10/1991 and it reached the Magistrate at about 4.30 p.m. on 18/10/1991.
In the facts of this case this time lag can hardly be described as delay
and, in any case, acceptable explanation is offered by PW-6 ASI S
Nanjudappa. It is, therefore, not necessary to refer to Bijoy Singh where
this Court was dealing with a case where FIR was registered on 25/08/1991
at about 2.30 a.m. and copy thereof was received by the Magistrate on
27/08/1991. It is pertinent to note that even in that case this Court
observed that sending copy of the special report to the Magistrate under
Section 157 of the Code is the only external check on the working of the
police agency imposed by law which is to be strictly followed. But, that
delay by itself does not render the prosecution case doubtful. If the
delay is reasonably explained no adverse inference can be drawn against the
prosecution.
23. In the ultimate analysis, therefore, we are of the view that the High
Court was perfectly justified in interfering with the trial court’s order.
The acquittal of the appellant was wrongly recorded. The High Court,
however, adopted a kindly approach and convicted the appellant under
Section 304 Part-II of the IPC and sentenced him to six years RI because
the incident is of the year 1991. Surprisingly, the appellant has made a
grievance about this and stated that the appellant’s case does not fall
under Section 300 of the IPC and, therefore, it cannot fall under any of
its exceptions and that the High Court has not assigned any reasons for
convicting the appellant under Section 304 Part-II. This submission
deserves to be rejected. Besides, the High Court has given reasons. So,
it is wrong to say that no reasons are assigned by the High Court. Since
the State has not approached this Court with a grievance that the sentence
awarded is too low and should be enhanced, we refrain from commenting on
this argument. Judgment of this Court in State of U.P. v. Virendra
Prasad[10] is not at all applicable to this case and hence, it is not
necessary to discuss it. The High Court was merciful. In the absence of
State appeal, at this distance of time, we are inclined to simply dismiss
the appeal. The appeal is, therefore, dismissed. The appellant is on
bail. His bail bonds stand cancelled. He shall surrender before the
concerned court.
.…………………………..J.
(Ranjana Prakash Desai)
.…………………………..J.
(Madan B. Lokur)
New Delhi;
November 12, 2013.
-----------------------
[1] (2007) 15 SCC 465
[2] (2007)13 SCC 112
[3] (1974) 4 SCC 264
[4] (1981) Suppl. SCC 25
[5] (2002) 9 SCC 147
[6] (1994) 5 SCC 188
[7] (2004) 9 SCC 37
[8] AIR 2002 SC 2973
[9] (2006) 3 SCC 374
[10] (2004) 9 SCC 37
RI for six years and to pay a fine of Rs.1,000/-, in default, to undergo
further sentence of three months. =
Dying Declaration once
the doctor who examined the deceased, himself states that the deceased was
in a position to make a statement and that she was conscious, absence of
his endorsement on the statement to that effect is of no consequence. =
PW-4 Dr. Parthasarathy’s cross-examination has not yielded any
material which could be said to be favourable to the defence. In the cross-
examination he stated that on 17/10/1991 he was on duty from 2.00 p.m. to
8.00 p.m. After he attended the last patient at 8.00 p.m. another doctor
relieved him. He added that after 8.00 p.m. he was working in the ward.
He stated that till morning of 18/10/1991 he was on duty in the Burns Ward.
He stated that Gowramma was admitted in Casualty Ward. He advised that
she should be taken to Burns Ward but before sending her to Burns Ward he
recorded her statement. He further stated that he started Gowramma’s
treatment in Burns Ward. He gave her sedatives but he has categorically
denied the suggestion that when he recorded the statement of Gowramma she
was not in a position to give statement. He denied the suggestion that she
was not conscious. This shows that when Gowramma gave statement she was
not under the effect of sedatives.
13. Evidence of PW-4 Dr. Parthasarathy inspires confidence. There is no
reason why he should make-up a story. There is nothing on record to show
that he harboured any grudge against the appellant. He is an independent
witness who has given his evidence in a forthright manner. His evidence
establishes to the hilt that Gowramma was in a fit mental condition to make
a statement and she implicated her husband. He stated that he made an
endorsement on the Gowramma’s statement recorded by PW-5 HC Ramachari. The
High Court has noted that PW-4 Dr. Parthasarathy has made endorsement on
Exhibit-P19 that Gowramma was in a fit condition to make a statement. The
High Court has also noted that in Exhibit-17, which is the case sheet of
Gowramma, it is stated that she was conscious. But, assuming he has not
made any endorsement on Gowramma’s dying declaration that she was in a fit
state of mind to make a statement that does not affect the credibility of
the prosecution story. He stated on oath in the court that Gowramma was in
a position to give statement and, therefore, he permitted PW-5 HC Ramachari
to record her statement. An independent professional like PW-4 Dr.
Parthasarathy must be trusted when he makes such a categorical statement
with a sense of responsibility.
Moreover, in Laxman v. State of
Maharashtra[8] this Court has made it clear that certification by the
doctor about the fitness of the declarant’s mind is a rule of caution.
But, if the doctor certifies that the patient was conscious, but does not
certify that he was in a fit state of mind, the dying declaration is not
liable to be rejected if the Magistrate who records the statement deposes
about the fit state of mind of the declarant. That would be sufficient to
give the dying declaration legal acceptability.
Besides, PW-4 Dr. Parthasarathy stated that Gowramma had received 34%
burns. She died about five days after the incident. Therefore, it is not
possible to hold that she could not have made any dying declaration.
It is
argued that PW-4 Dr. Parthasarathy’s presence in the hospital is doubtful.
It is true that PW-4 Dr. Parthasarathy stated that he was relieved from
Emergency Ward at 8.00 p.m. But, he has clarified that he was in Burns
Ward till morning of 18/10/1991. There is no reason to doubt his
statement.
In the ultimate analysis, therefore, we are of the view that the High
Court was perfectly justified in interfering with the trial court’s order.
The acquittal of the appellant was wrongly recorded. The High Court,
however, adopted a kindly approach and convicted the appellant under
Section 304 Part-II of the IPC and sentenced him to six years RI because
the incident is of the year 1991. Surprisingly, the appellant has made a
grievance about this and stated that the appellant’s case does not fall
under Section 300 of the IPC and, therefore, it cannot fall under any of
its exceptions and that the High Court has not assigned any reasons for
convicting the appellant under Section 304 Part-II. This submission
deserves to be rejected. Besides, the High Court has given reasons. So,
it is wrong to say that no reasons are assigned by the High Court. Since
the State has not approached this Court with a grievance that the sentence
awarded is too low and should be enhanced, we refrain from commenting on
this argument. Judgment of this Court in State of U.P. v. Virendra
Prasad[10] is not at all applicable to this case and hence, it is not
necessary to discuss it. The High Court was merciful. In the absence of
State appeal, at this distance of time, we are inclined to simply dismiss
the appeal. The appeal is, therefore, dismissed. The appellant is on
bail. His bail bonds stand cancelled. He shall surrender before the
concerned court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1223 OF 2008
ANJANAPPA …Appellant
Versus
STATE OF KARNATAKA …Respondent
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. This appeal, once again like many other appeals, presents before us
the plight of a woman who is burnt to death by her husband. Sadly, her parents turned hostile in the court.
This raises the serious question of witness protection which is not addressed as yet.
2. Deceased Gowramma was married to the appellant on 17/04/1987. It is
the prosecution case that at the time of marriage the appellant demanded
dowry and he received Rs.5,000/-, a motor bike, one gold chain and clothes
from Hanumantharayappa, the father of Gowramma. After marriage the
appellant was harassing the deceased for bringing more dowry from her
parents. The harassment was both physical and mental. The appellant had
caused burn injuries on the thighs of Gowramma to compel her to bring more
dowry.
He had kept one Puttamma as his mistress, which caused mental agony
to Gowramma.
On 17/10/1991 there was a quarrel between the appellant and
Gowramma on the question of transferring Gowramma’s property in the
appellant’s name.
At about 6.00 p.m. the appellant poured kerosene on her
and set her on fire. Gowramma was taken to the Victoria hospital.
At about
7.00 p.m. PW-4 Dr. Parthasarathy admitted her for treatment of burn
injuries.
When PW-4 Dr. Parthasarathy asked her about the burn injuries
she told him that on the same day at about 6.30 p.m. the appellant had
poured kerosene on her and set her on fire.
He recorded the said
occurrence in the Accident Register. Gowramma’s statement recorded by him
is at Exhibit-P16(b).
He reported the matter to the police. PW-5 HC
Ramachari of Vijayanagara Police Station came to the hospital on 17/10/1991
at about 10.30 p.m. and sought permission to record the statement of
Gowramma from PW-4 Dr. Parthasarathy.
As Gowramma was in a position to
give statement PW-4 Dr. Parthasarathy permitted PW-5 HC Ramachari to obtain
her statement.
Thereafter, PW-5 HC Ramachari recorded her statement in
Burns Ward, which is Exhibit P-19. She stated that her husband had poured
kerosene on her and set her on fire. PW-4 Dr. Parthasarathy put an
endorsement on the said statement and signed it.
After recording the
statement of Gowramma, PW-5 HC Ramachari presented the memo Exhibit-P18 and
statement Exhibit-P19 before the Station House Officer.
PW-6 S.
Nanjundappa, who was at the relevant time, working as ASI, Vijayanagara
Police Station, recorded the FIR at about 11.30 p.m. on 17/10/1991 on the
basis of Gowramma’s statement Exhibit-P19.
The appellant came to be
arrested and charged for offences under Sections 3 and 6 of the Dowry
Prohibition Act, 1961 and under Sections 498A and 302 of the IPC.
3. The prosecution examined eight witnesses. Apart from the police
witnesses and the doctor, the prosecution examined PW-2 Chikkaeeramma,
mother of Gowramma and PW-3 Hanumantharayappa, father of Gowramma.
4. The trial court acquitted the appellant.
The trial court inter alia
held that the dying declaration could not be relied upon because the doctor
has not made any endorsement as to whether the deceased was in a fit
condition to make a statement.
The trial court held that the deceased was
given sedatives, therefore, in all probability she was not in a fit
condition to make a dying declaration.
In the opinion of the trial court
it is doubtful whether the doctor was present when the dying declaration
was being recorded.
The fact that the parents of the deceased did not
support the prosecution case weighed with the trial court.
5. The State of Karnataka carried an appeal to the High Court. The High
Court by the impugned order set aside the order of acquittal, convicted the
appellant under Section 304 Part-II of the IPC and sentenced him to undergo
RI for six years and to pay a fine of Rs.1,000/-, in default, to undergo
further sentence of three months. The said judgment and order is
challenged in this appeal.
6. We have heard learned counsel for the parties. We have read written
submissions filed on behalf of the appellant. Mr.Shekhar Devasa, learned
counsel for the appellant submitted that the prosecution case that the
appellant poured kerosene on the deceased and set her on fire is not
supported by the parents of deceased Gowramma. They stated that the death
of Gowramma was accidental. This affects the veracity of the prosecution
case. Counsel submitted that
the dying declaration of deceased Gowramma
cannot be relied upon because PW-4 Dr. Parthasarathy has stated that he had
given sedatives to the deceased.
The deceased, therefore, could not have
been in a fit condition to make a dying declaration.
Besides, the doctor
has not made any endorsement to that effect on the dying declaration.
The
doctor has not stated that kerosene smell was emanating from the body of
the deceased.
This is also not mentioned in Exhibits P16, 17 and 19.
There is a serious doubt about the doctor’s presence when the dying
declaration was being recorded.
Counsel submitted that in the
circumstances the dying declaration must be rejected.
In support of this
submission he relied on Nallapati Sivaiah v. Sub-Div. Officer, Guntur
A.P.[1], Mehiboobasab Abbasabi Nadaf v. State of Karnataka[2], Rasheed
Beg and ors. v. State of M.P.[3] and Kake Singh @ Surendra Singh v.
State of M.P.[4].
7. Counsel submitted that there is a delay in recording FIR. Counsel
further submitted that the FIR was recorded at 10.30 p.m. on 17/10/1991.
But, it reached the Magistrate at 4.30 p.m. on 18/10/1991. This delay
casts a shadow of doubt on the FIR. In this connection he relied on Bijoy
Singh and Anr. v. State of Bihar[5] and Meharaj Singh v. State of
U.P.[6]. Counsel further submitted that motive is not proved. There is
also discrepancy in the timing of the dying declaration. Counsel submitted
that the conviction of the appellant under Section 304 Part-II of the IPC
is not maintainable as his case does not come within the purview of Section
300 of the IPC. It, therefore, cannot fall in the exceptions thereto.
Besides, no reasons are assigned for convicting the appellant under Section
304 Part-II of the IPC which renders the order of conviction unsustainable.
In this connection he relied on State of U.P. v. Virendra Prasad[7].
Counsel submitted that in the circumstances the impugned judgment and order
deserves to be set aside.
8. Ms. Anita Shenoy, learned counsel for the State of Karnataka, on the
other hand, submitted that parents of the deceased were won over by the
appellant. However, the prosecution story is established by the
independent evidence of PW-4 Dr. Parthasarathy and PW-5 HC Ramachari, who
have deposed about the dying declaration of the deceased. In her dying
declaration the deceased has implicated the appellant. Counsel submitted
that the dying declaration inspires confidence and, therefore, the appeal
deserves to be dismissed.
9. It is well settled that an order of acquittal is not to be set aside
lightly. If the view taken by the trial court is a reasonably possible
view, it is not to be disturbed. If two views are possible and if the view
taken by the trial court is a reasonably possible view, then the appellate
court should not disturb it just because it feels that another view of the
matter is possible. However, an order of acquittal will have to be
disturbed if it is perverse. We have examined the trial court’s order of
acquittal in light of above principles. We are of the considered opinion
that the High Court was justified in setting it aside as it is perverse.
10. What has weighed with the trial court is the fact that the parents
have turned hostile. They came out with a story which even the appellant
did not have in mind. He merely denied the prosecution story. The parents
stated that the deceased was heating water on stove. She caught fire
accidentally and sustained burn injuries. If this was true, the appellant
would have stated so in his statement recorded under Section 313 of the
Code of Criminal Procedure (“the code”). We have perused the evidence of
the parents. We have no doubt that they were either won over by the
appellant or pressurized into supporting the appellant. Their evidence is
a tissue of lies. In any case, even if it is obliterated and kept out of
consideration, there is sufficient other evidence on record to establish
the appellant’s guilt.
11. PW-4 Dr. Parthasarathy is an independent witness. He stated that on
17/10/1991 at 7.00 p.m. he admitted deceased Gowramma in the Victoria
Hospital. Her husband and mother had accompanied her. On a query made by
him, she told him that on the same day at 6.30 p.m. the appellant had
poured kerosene on her and set her on fire. He, then, recorded the
occurrence in the Accident Register. The relevant pages of the Accident
Register are on record at Exhibit-P16(a). The statement of the deceased is
at Exhibit-P16(b) and the signature of the witnesses is at Exhibit-P(c).
According to PW-4 Dr. Parthasarathy, Gowramma had received 34% burn
injuries. Exhibit-P17 is the case sheet of Gowramma. He stated that
Gowramma died on 21/10/1991 at 7.30 p.m. He reported the case to the
police vide Memo dated 17/10/1991, which is at Exhibit-P18. PW-4 Dr.
Parthasarathy further stated that at 11.00 p.m. on the same day PW-5 HC
Ramachari of Vijayanagara Police Station came to the hospital and sought
permission to record Gowramma’s statement. As Gowramma was in a position
to give statement he permitted PW-5 HC Ramachari to record her statement.
Thereafter, PW-5 HC Ramachari recorded Gowramma’s statement in Burns Ward.
PW-4 Dr. Parthasarathy reiterated that even at that time Gowramma repeated
the story that her husband poured kerosene on her and set her on fire. He
stated that he made endorsement on that statement. The said statement is
at Exhibit-19, the endorsement is at Exhibit-P19(a) and his signature is at
Exhibit-P19(b).
12. PW-4 Dr. Parthasarathy’s cross-examination has not yielded any
material which could be said to be favourable to the defence. In the cross-
examination he stated that on 17/10/1991 he was on duty from 2.00 p.m. to
8.00 p.m. After he attended the last patient at 8.00 p.m. another doctor
relieved him. He added that after 8.00 p.m. he was working in the ward.
He stated that till morning of 18/10/1991 he was on duty in the Burns Ward.
He stated that Gowramma was admitted in Casualty Ward. He advised that
she should be taken to Burns Ward but before sending her to Burns Ward he
recorded her statement. He further stated that he started Gowramma’s
treatment in Burns Ward. He gave her sedatives but he has categorically
denied the suggestion that when he recorded the statement of Gowramma she
was not in a position to give statement. He denied the suggestion that she
was not conscious. This shows that when Gowramma gave statement she was
not under the effect of sedatives.
13. Evidence of PW-4 Dr. Parthasarathy inspires confidence. There is no
reason why he should make-up a story. There is nothing on record to show
that he harboured any grudge against the appellant. He is an independent
witness who has given his evidence in a forthright manner. His evidence
establishes to the hilt that Gowramma was in a fit mental condition to make
a statement and she implicated her husband. He stated that he made an
endorsement on the Gowramma’s statement recorded by PW-5 HC Ramachari. The
High Court has noted that PW-4 Dr. Parthasarathy has made endorsement on
Exhibit-P19 that Gowramma was in a fit condition to make a statement. The
High Court has also noted that in Exhibit-17, which is the case sheet of
Gowramma, it is stated that she was conscious. But, assuming he has not
made any endorsement on Gowramma’s dying declaration that she was in a fit
state of mind to make a statement that does not affect the credibility of
the prosecution story. He stated on oath in the court that Gowramma was in
a position to give statement and, therefore, he permitted PW-5 HC Ramachari
to record her statement. An independent professional like PW-4 Dr.
Parthasarathy must be trusted when he makes such a categorical statement
with a sense of responsibility.
Moreover, in Laxman v. State of
Maharashtra[8] this Court has made it clear that certification by the
doctor about the fitness of the declarant’s mind is a rule of caution.
But, if the doctor certifies that the patient was conscious, but does not
certify that he was in a fit state of mind, the dying declaration is not
liable to be rejected if the Magistrate who records the statement deposes
about the fit state of mind of the declarant. That would be sufficient to
give the dying declaration legal acceptability.
On the same analogy once
the doctor who examined the deceased, himself states that the deceased was
in a position to make a statement and that she was conscious, absence of
his endorsement on the statement to that effect is of no consequence.
Besides, PW-4 Dr. Parthasarathy stated that Gowramma had received 34%
burns. She died about five days after the incident. Therefore, it is not
possible to hold that she could not have made any dying declaration.
It is
argued that PW-4 Dr. Parthasarathy’s presence in the hospital is doubtful.
It is true that PW-4 Dr. Parthasarathy stated that he was relieved from
Emergency Ward at 8.00 p.m. But, he has clarified that he was in Burns
Ward till morning of 18/10/1991. There is no reason to doubt his
statement.
14. PW-5 HC Ramachari has corroborated PW-4 Dr. Parthasarathy. He stated
that on 17/10/1991 when he received the information he went to the Victoria
Hospital. He requested PW-4 Dr. Parthasarathy to allow him to record the
statement of Gowramma. PW-4 Dr. Parthasarathy told him that he could
record her statement and accompanied him to Burns Ward. He found that
Gowramma was in a position to talk. He, then, recorded her statement which
is at Exhibit-P19. He further stated that Gowramma told him that at 6.00
p.m. the appellant demanded that house property should be transferred to
his name and then he poured kerosene on her and set her on fire. He, then,
presented Memo Exhibit-P18 to the Station House Officer. Thus, evidence of
PW-4 Dr. Parthasarathy is fully corroborated by this witness. We have no
hesitation to record that both these witnesses are truthful and the trial
court erred in rejecting their evidence.
15. As we have already noted, PW-2 Chikkaeeramma and PW-3
Hanumantharayappa have turned hostile. It is apparent that they have tried
to help the appellant. In that effort they have come out with the
accidental death theory which was not even urged by the appellant. The
appellant could have very easily come out with it in his statement recorded
under Section 313 of the Code. PW-2 Chikkaeeramma and PW-3
Hanumantharayappa are, therefore, completely exposed. It is sad that even
parents did not stand by their daughter. We do not understand how a woman,
particularly a mother, turned her back on the daughter. Possibly these
witnesses were bought over by the appellant. Such conduct displays greed
and lack of compassion. If they were threatened by the appellant and were
forced to depose in his favour it is a sad reflection on our system which
leaves witnesses unprotected. The reasons why witnesses so frequently turn
hostile need to be ascertained. There is no witness protection plan in
place. In Zahira Habibullah Sheikh (5) v. State of Gujarat[9] this
Court spoke about importance of witnesses and their protection. The
relevant paragraphs read as under:
“ “Witnesses” as Bentham said: are the eyes and ears of justice.
Hence, the importance and primacy of the quality of trial process. If
the witness himself is incapacitated from acting as eyes and ears of
justice, the trial gets putrefied and paralysed, and it no longer can
constitute a fair trial. The incapacitation may be due to several
factors, like the witness being not in a position for reasons beyond
control to speak the truth in the court or due to negligence or
ignorance or some corrupt collusion. Time has become ripe to act on
account of numerous experiences faced by the courts on account of
frequent turning of witnesses as hostile, either due to threats,
coercion, lures and monetary considerations at the instance of those
in power, their henchmen and hirelings, political clouts and patronage
and innumerable other corrupt practices ingeniously adopted to smother
and stifle the truth and realities coming out to surface rendering
truth and justice, to become ultimate casualties. Broader public and
societal interests require that the victims of the crime who are not
ordinarily parties to prosecution and the interests of the State
represented by their prosecuting agencies do not suffer even in slow
process but irreversibly and irretrievably, which if allowed would
undermine and destroy public confidence in the administration of
justice, which may ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice
of rule of law, enshrined and jealously guarded and protected by the
Constitution. There comes the need for protecting the witness. Time
has come when serious and undiluted thoughts are to be bestowed for
protecting witnesses so that the ultimate truth is presented before
the court and justice triumphs and that the trial is not reduced to a
mockery.
… … …
… … …
The State has a definite role to play in protecting the witnesses, to
start with at least in sensitive cases involving those in power, who
have political patronage and could wield muscle and money power, to
avert trial getting tainted and derailed and truth becoming a
casualty. As a protector of its citizens it has to ensure that during
a trial in the court the witness could safely depose the truth without
any fear of being haunted by those against whom he had deposed… … ….”
We share the above sentiments. Unless the witnesses are protected
the rise in unmerited acquittals cannot be checked. It is unfortunate that
this important issue has not received necessary attention.
16. In any case, the trial court should have seen through the insincerity
and dishonesty of PW-2 Chikkaeeramma and PW-3 Hanumantharayappa and having
regard to the independent evidence of PW-4 Dr. Parthasarathy, which is
corroborated by the evidence of PW-5 HC Ramachari the trial court should
have held that the deceased was in a fit mental condition to make a dying
declaration and, therefore, her dying declaration can be relied upon.
17. It is well settled that a conviction can be based on a dying
declaration recorded properly when the declarant is in a fit mental
condition to make it. It should be truthful and voluntary. All these
tests are satisfied in the present case. Judgments on which reliance is
placed by the appellant’s counsel are not applicable to the case on hand.
In Nallapati the medical evidence on record and other attendant
circumstances were altogether ignored and dying declaration was relied
upon. In those circumstances this Court while reiterating its view in
Laxman rejected the dying declaration in the peculiar facts of the case.
In Mehiboobasab the deceased wife had made four dying declarations in which
she had taken contradictory stands. This Court was primarily dealing with
inconsistent dying declarations. While observing that a conviction can
indisputably be based on a dying declaration if it is voluntarily and
truthfully made this Court set aside the conviction based on the dying
declarations on the ground of their inconsistency. Inconsistency in dying
declaration is not a ground of attack in this case. In any case, there is
consistency between the statement of Gowramma recorded by PW-4 Dr.
Parthasarathy, which is at Exhibit-P16(b), the history recorded in
Gowramma’s case sheet, which is Exhibit-P17 and statement of Gowramma
recorded by PW-5 HC Ramachari, which is at Exhibit-P19. This judgment is,
therefore, not applicable to the present case. Rasheed Beg also turns on
its own facts. There in the second dying declaration two additional names
were added. This Court found it not safe to rely on the dying
declarations. This judgment must be restricted to its own facts and has no
application to the present case. In Kake Singh a good part of the brain
of the deceased was burnt. The doctor had not categorically stated that
the deceased was conscious when he made the dying declaration. Hence, no
reliance was placed on it. In the present case the doctor has
categorically stated that the deceased was in a position to make a
statement. No parallel can, therefore, be drawn from Kake Singh. The
doctor’s evidence which is supported by the evidence of PW-5 HC Ramachari
and other attendant circumstances establishes that the dying declaration of
Gowramma is truthful and it was voluntarily made by her when she was in a
fit state of mind.
18. There is also no substance in the submission that there is no motive.
The appellant wanted the property standing in the name of the deceased to
be transferred to his name, which the deceased was not prepared to do.
There is no reason to disbelieve PW-5 HC Ramachari on this aspect.
19. Besides, the conduct of the appellant speaks volumes. He was
absconding and could be arrested only on 19/02/1992. Moreover, in his
statement recorded under Section 313 of the Code he has not explained how
the deceased received burn injuries. He did not set up the defence of
alibi. It was obligatory on him to explain how the deceased received burn
injuries in his house. His silence on this aspect gives rise to an adverse
inference against him. It forms a link in the chain of circumstances which
point to his guilt.
20. Minor discrepancy in the time of recording of dying declaration
creates no dent in the prosecution story which is, otherwise, substantiated
by reliable evidence. Certain documents like inquest panchanama and post-
mortem notes do not state that kerosene smell was emanating from the body
of Gowramma. When there is overwhelming evidence on record to establish
that kerosene was poured on Gowramma and she was set on fire, it is absurd
to argue that the prosecution case should be disbelieved because it is not
mentioned in certain documents that kerosene smell was emanating from her
body.
21. The submission that there is delay in lodging the FIR must be
rejected. PW-5 HC Ramachari recorded the dying declaration at about 10.30
p.m. on 17/10/1991. He, then, presented Memo Exhibit-P18 to the Station
House Officer. Thereafter, PW-6 ASI S. Nanjudappa of Vijayanagara Police
Station recorded the FIR at about 11.30 p.m. In the facts of this case, we
find that there is no delay in recording the FIR. Hence, it is not
necessary to refer to Meharaj Singh which is relied upon on this aspect.
22. Similarly, we find that there is no unexplained delay in forwarding
FIR to the Magistrate. FIR was recorded at about 11.30 p.m. on 17/10/1991.
PW-6 ASI S Nanjudappa has explained that since the constable was going to
the Court on the next day, he gave the FIR to him on the next day i.e.
18/10/1991 and it reached the Magistrate at about 4.30 p.m. on 18/10/1991.
In the facts of this case this time lag can hardly be described as delay
and, in any case, acceptable explanation is offered by PW-6 ASI S
Nanjudappa. It is, therefore, not necessary to refer to Bijoy Singh where
this Court was dealing with a case where FIR was registered on 25/08/1991
at about 2.30 a.m. and copy thereof was received by the Magistrate on
27/08/1991. It is pertinent to note that even in that case this Court
observed that sending copy of the special report to the Magistrate under
Section 157 of the Code is the only external check on the working of the
police agency imposed by law which is to be strictly followed. But, that
delay by itself does not render the prosecution case doubtful. If the
delay is reasonably explained no adverse inference can be drawn against the
prosecution.
23. In the ultimate analysis, therefore, we are of the view that the High
Court was perfectly justified in interfering with the trial court’s order.
The acquittal of the appellant was wrongly recorded. The High Court,
however, adopted a kindly approach and convicted the appellant under
Section 304 Part-II of the IPC and sentenced him to six years RI because
the incident is of the year 1991. Surprisingly, the appellant has made a
grievance about this and stated that the appellant’s case does not fall
under Section 300 of the IPC and, therefore, it cannot fall under any of
its exceptions and that the High Court has not assigned any reasons for
convicting the appellant under Section 304 Part-II. This submission
deserves to be rejected. Besides, the High Court has given reasons. So,
it is wrong to say that no reasons are assigned by the High Court. Since
the State has not approached this Court with a grievance that the sentence
awarded is too low and should be enhanced, we refrain from commenting on
this argument. Judgment of this Court in State of U.P. v. Virendra
Prasad[10] is not at all applicable to this case and hence, it is not
necessary to discuss it. The High Court was merciful. In the absence of
State appeal, at this distance of time, we are inclined to simply dismiss
the appeal. The appeal is, therefore, dismissed. The appellant is on
bail. His bail bonds stand cancelled. He shall surrender before the
concerned court.
.…………………………..J.
(Ranjana Prakash Desai)
.…………………………..J.
(Madan B. Lokur)
New Delhi;
November 12, 2013.
-----------------------
[1] (2007) 15 SCC 465
[2] (2007)13 SCC 112
[3] (1974) 4 SCC 264
[4] (1981) Suppl. SCC 25
[5] (2002) 9 SCC 147
[6] (1994) 5 SCC 188
[7] (2004) 9 SCC 37
[8] AIR 2002 SC 2973
[9] (2006) 3 SCC 374
[10] (2004) 9 SCC 37
