Mohan M. Shantana Goudar, J.@mdash1. The judgment and order of conviction dated 18th February, 2011 passed by the I Additional District and Sessions Judge at Davangere in Session Case No. 67/2010 is appealed against by the convicted accused. By the impugned judgment and order, the trial Court has convicted the accused for the offences punishable under Sections 498A and 302 of IPC.
2. The case of the prosecution in brief is that the deceased Prema is the wife of the accused-Mallikarjuna; their marriage was performed about 9 years prior to the death of deceased; two children are born out of their wedlock; The accused was addicted to consuming alcohol; he used to come fully drunk to the house and quarrel with the wife and assault her on one or the other reason; he used to demand money from his wife for the purpose of satisfying his habit of drinking alcohol and in that context, quarrels used to take place. On the date of the incident i.e., on 17.1.2010 the accused once again started quarreling with the deceased at about 10.00 p.m. in the matrimonial house and thereafter, he poured kerosene on the deceased and set her ablaze, consequent upon which, the deceased sustained number of burn injuries and she raised hue and cry. In the very incident, the accused also sustained certain injuries. Immediately, the neighbours of the accused and deceased including the uncle of the deceased (P.W. 12) rushed to the spot and called for ambulance and thereafter, he made arrangements to shift the victim/deceased to the hospital in an ambulance. The victim was admitted to Chigateri Government Hospital, Davangere at about 11.50 p.m. on very night of 17.1.2010; Dr. Gangadhar (P.W. 6) sent an intimation (Ex. P.5) to the jurisdictional police i.e., Extension Police Station, Davangere about the medico legal case. Though the said intimation was prepared during the night, the same was dispatched at 9.00 a.m. on 18.1.2010 by the hospital authorities. The police came to the hospital and started recording the statement of the victim at 12.30 p.m. on 18.1.2010. The Sub-Inspector of Police (P.W. 21) recorded the statement of the victim - dying declaration as per Ex. P.19 in presence of the doctor (P.W. 23) based on which a case in Crime No. 9/2010 came to be registered in Mayakonda Police Station at about 4.00 p.m. for the offences punishable under Sections 498A and 307 of IPC. At about 2.30 p.m. the Taluka Executive Magistrate (P.W. 20) was summoned to the hospital and he recorded the statement of the victim (dying declaration-Ex. P. 18) in presence of the doctor (P.W. 23) on the very day i.e., on 18.1.2010. After completion of the investigation, the Investigating Officer (P.W. 24) laid the charge sheet against the sole accused for the offences punishable under Sections 498A and 302 of IPC, in as much as the deceased died on 24.1.2010.
3. In order to prove its case, the prosecution in all examined 24 witnesses and got marked 23 exhibits and 3 material objects. On behalf of the defence, no witness is summoned. The trial on evaluation of the material on record, convicted the accused for the offences punishable under Sections 302 and 498A of IPC.
4. Sri B.S. Prasad, learned advocate appearing on behalf of the appellant taking us through the entire material on record submits that two dying declarations Exs. P.19 and 18 are conflicting with each other; the intimation sent by the hospital to the police as per Ex. P.5 which was the first in point of time, clearly reveals, that it is a case of suicidal death and not a case of homicidal death; the two children, who were residing with accused, are not examined before the Court; the two children would have been the best witnesses in the matter in as much as the incident might have taken place in front of them; the evidence of P.Ws. 14, 15 and 17 cannot be believed in as much as they are the mother and brothers of the deceased and their versions are interested versions; since the victim had sustained 95% to 96% burn injuries, it is impossible for her to give statements as were recorded as per Exs. P.18 and 19; the victim could not have been in a position to give such a lengthy statements after sustaining burns of 95% to 96%; except the palms of the victim, the entire body of the victim was burnt; since the face of the victim was entirely burnt, she would not have been in a position to give the dying declarations - Exs. P.18 and 19; thus according to him, both the dying declarations are concocted and created by the police just to sue the case of the prosecution.
5. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, argued in support of the judgment of the Court below.
6. In the matter on hand, undisputedly, the accused also has sustained injuries. The incident has taken place during the night of 17.1.2010 in the matrimonial house wherein the accused and the deceased only were there. Of course, two minor children, who may be aged about 4 to 6 years, might have also been present but by then, they must have slept. The incident has taken place after 10.00 p.m. on 17.1.2010. The wound certificate of the accused -Ex. P.15 and the evidence of the doctor - P.W. 16, who examined the accused would clearly disclose that the accused also sustained injuries. Thus the presence of the accused on the spot cannot be disputed. Hence, the question to be decided in the matter is as to - Whether it is a case of suicidal death or homicidal death?
7. Before proceeding further, it is relevant to know the version of each of the witnesses in brief which is as under:
"P.W. 1 and P.W. 22 are the witnesses for inquest mahazar - Ex. P. 1. P.W. 2 is the relative of the deceased. He has deposed about the harassment meted towards the deceased, in other words, the motive for commission of offence.
P.Ws. 3 and 4 are the witnesses for the scene of offence mahazar - Ex. P. 2. Both of them have turned hostile.
P.W. 5 is the neighbour of the deceased and accused. He has also turned hostile to the case of the prosecution.
P.W. 6 is the doctor, who admitted the victim to the hospital initially. He sent the intimation to the police as per Ex. P.5 about the medico legal case.
P.W. 7 is another doctor, who sent the intimation of death to the police after the death of the deceased as per Ex. P. 6.
P.W. 8 is the doctor, who conducted autopsy over the dead body and the post mortem report is at Ex. P.7.
P.W. 9 is the Secretary of the Grama Panchayat, who issued the house tax register extract wherein the incident has taken place as per Ex. P. 8.
P.Ws. 10 and 11 are the two neighbours of the deceased and the accused and both of them have turned hostile.
P.W. 12 is another neighbour. Though he has turned partly hostile, has deposed the presence of the accused in the house during the relevant point of time. He made arrangements to shift the victim to the hospital in an ambulance.
P.W. 13 is another neighbour of the deceased and accused, who has turned hostile to the case of the prosecution.
P.W. 14 is the mother of the deceased and P.Ws. 15 and 17 are the brothers of the deceased. All these witnesses have deposed that the accused is a drunkard and he used to quarrel with the accused frequently; he used to harass the deceased on one pretext or the other; the accused used to demand money from the deceased for consuming alcohol. They have also deposed about the oral dying declaration made by the deceased in the hospital during the course of treatment.
P.W. 16 is the doctor, who examined the accused and treated him. The wound certificate of the accused is at Ex. P.15. P.Ws. 18 and 19 are the Police Constables, who have participated during the course of recording the dying declaration. P.W. 20 was the Taluka Executive Magistrate, who recorded the dying declaration - Ex. P. 18 in the question and answer form.
P.W. 21 is the Sub-Inspector of Police. He has recorded the statement of the victim in the hospital as per Ex. P. 19 in the presence of the doctor P.W. 23. Based on such statement - Ex. P. 19, a crime came to be registered and investigation was proceeded with.
P.W. 23 is the doctor. As mentioned supra, he was present at the time of recording of both dying declarations Exs. P.18 and 19.
P.W. 24 is the Investigating Officer, who completed the investigation and laid the charge sheet."
8. The first information as mentioned supra was given by the victim herself as per Ex. P. 19 which was recorded by the Sub-Inspector of Police (P.W. 21) in presence of the doctor - P.W. 23. So the dying declaration of the victim as found at Ex. P. 19 itself was treated as the first information and a crime came to be registered based on the said dying declaration. The dying declaration was recorded in between 12.30 p.m. and 2.30 p.m. on 18.1.2010. The doctor has certified on the dying declaration Ex. P. 19/first information report to the effect that the patient is conscious and she is mentally fit to give statement. Such an endorsement is made by the doctor not only on the top of the dying declaration but also at the bottom, meaning thereby, the victim was conscious and was fit to make statement all through during the course of recording of statement Ex. P.19.
9. The dying declaration Ex. P. 19 clearly reveals that since one year, the accused and the deceased were living separately along with two children; earlier thereto, the couple and the children were living with the parents of the accused; since the accused was not earning and was addicted to bad habits of drinking alcohol, etc., the parents of the accused being frustrated, did not allow the accused and his family to continue to stay with them and hence, the accused was forced to take another house and he started living with his wife and children in a different house. Even when the accused started living with the deceased and his children separately, he did not mend his conduct; his old habits of drinking alcohol on day to day basis continued all through and he used to harass the deceased both physically and mentally; he used to pressurize the deceased to get money for satisfying his bad habit of consuming alcohol. The dying declaration further reveals that at about 10.00 p.m. on 17.1.2010, the accused came back to the house fully drunk as usual and in that regard once again, he started quarreling with his wife and ultimately, he poured kerosene and set the deceased ablaze. Since the victim started crying loudly, the neighbours namely Ramanna, Umapathy, etc., came and extinguished the fire and thereafter, they shifted the victim to the C.G. Hospital, Davangere in the ambulance.
The second dying declaration is at Ex. P.18. The same is recorded by the Taluka Executive Magistrate in the presence of the doctor - P.W. 23. The said dying declaration is recorded after recording the first dying declaration - Ex. P.19. The Taluka Executive Magistrate commenced the writing of second dying declaration Ex. P.18 at 2.30 p.m. on 18.1.2010 in presence of the doctor. The doctor has certified that the patient was conscious and she was mentally fit to give statement. In the said dying declaration also, the victim has clearly stated that it was her husband, who poured kerosene and set her ablaze; she has also deposed that she has got two children and despite the same, the accused used to come to the house fully drunk and used to quarrel with her by demanding money; as the victim advised the accused on that day to behave properly, the accused got enraged and poured kerosene on the victim and set her ablaze.
10. Both the dying declarations are not only supported by the certificates issued by the doctor that the victim was in a fit condition to make statement but also both of them were supported by the thumb impression of the victim.
11. Sri Prasad, learned advocate for the appellant while arguing against the dying declaration Ex. P. 18 contends that, the Taluka Executive Magistrate has put his signature after recording the fact that the victim was not in a position to speak and that he made only the signs and after understanding the signs made by the victim, he recorded the dying declaration.
12. Though at the first look it appears so, but on meticulous perusal of the dying declaration (in original) Ex. P.18, we disagree with the submissions made by Mr. Prasad. We have perused the original dying declaration Ex. P.18. In this context, the learned Additional SPP., submits that the cyclostyle format is provided to the Taluka Executive Magistrates by the State Government for recording the dying declaration and the Taluka Executive Magistrate has merely filled up the said form having regard to the answers given by the victim in respect of each question found in the form. On perusal of the original dying declaration - Ex. P.18, we are satisfied that the submissions made by the learned Additional SPP., deserve to be accepted. Ex. P.18 is in a cyclostyled form. The answers as provided by the victim are filled up as against each question mentioned in the cyclostyled form in the handwriting of the Taluka Executive Magistrate. The questions are already typed in the cyclostyled form whereas the answers are filled up by the Taluka Executive Magistrate based on the information given by the victim in respect of each of the questions. The Taluka Executive Magistrate has written Ex. P.18 in green ink in his own hand writing. After recording the dying declaration - Ex. P.18 in question and answer form, the Taluka Executive Magistrate has signed. He has also taken the left thumb impression of the victim. Thereafter, two more signatures are made by the Taluka Executive Magistrate in a printed form, of which, we are not concerned, as a matter of fact, the Taluka Executive Magistrate should not have put his signature in other portions of the declaration. But it seems by inadvertence, the Taluka Executive Magistrate has put his signature. Merely because the Taluka Executive Magistrate has put his signature on other portions of typed material unnecessarily, the version of the victim as recorded by him in his own hand writing cannot be suspected or disbelieved, particularly when the version as found in Ex. P. 18 is corroborated by the version found in Ex. P. 19 in all material particulars.
13. Thus we find that the versions as found in Exs. P.18 and 19 corroborate with each other in all material particulars and it seems, both the dying declarations are recorded by the concerned authorities based on the versions given by the victim.
14. Both the dying declarations are supported by the versions of the doctors as well as the authorities, who recorded the dying declarations. The first dying declaration - Ex. P. 19 is recorded by the Sub-Inspector of Police (P.W. 21) in presence of the doctor (P.W. 23). The Sub-Inspector of Police (P.W. 21) has deposed that after getting the information from the hospital, he visited the Chigateri Government Hospital and recorded the statement of the victim as per Ex. P. 19 in presence of the doctor. He has identified the signature of the doctor as per Ex. P. 19(c). The Sub-Inspector has also deposed before the Court as to the contents of the dying declaration - Ex. P. 19 recorded by him. Nothing worth is elicited by the defence during his cross-examination. The second dying declaration is recorded by the Taluka Executive Magistrate (P.W. 20). He has deposed that he visited the hospital as per the request of the Mayakonda Police and recorded the dying declaration of the victim -Ex. P. 18 in the presence of the duty doctor. He has also identified not only his signature, but also the signature of the doctor and the certificate issued by the doctor regarding the fitness of the victim. He has also deposed about the contents of the dying declaration recorded by him as found in Ex. P. 18. In the cross-examination also P.W. 20 has deposed that the victim was in a fit condition to make statement. He does not know as to what were the medicines which were administered to the victim. We do not find anything in his evidence for discarding his version.
15. Both the dying declarations are supported by the certificates issued by the doctor (P.W. 23), who has certified that the victim was in a fit condition to make statements during the relevant point of time. The doctor P.W. 23 was present at the time of recording of both the dying declarations. The said doctor has deposed that the Sub-Inspector (P.W. 21) came to the hospital at 12.30 p.m. and started recording the statement at 1.20 p.m. At the time of recording Ex. P.19, he was present and he gave the fitness certificate relating to the victim. Recording of the dying declaration was completed at 2.30 p.m. Even at the conclusion of recording of the dying declaration, he has issued the fitness certificate by certifying that the victim was in a fit condition to make the statement.
Thereafter, the Taluka Executive Magistrate also came to the hospital and in the presence of the doctor, the dying declaration was recorded as per Ex. P. 18 at about 2.30 p.m. At the time of the recording of the said dying declaration also, the doctor-P.W. 23 has certified that the victim was in a fit condition to make statement. In the cross-examination, the doctor has deposed that sometimes the victims of burn injuries would become physically weak after consuming drugs administered to such patient, but mentally they would be in a fit condition to make statement. Even in the cross-examination, the said doctor has withstood to depose that the victim was in a fit condition to make statement. A suggestion was also put to the doctor by the defence that the victim was not in a position to put her thumb impression on the dying declaration, but such a suggestion is denied by him. He has reiterated that the victim was in a fit condition to make statement as recorded in Ex. P. 18.
16. From the aforementioned discussions, we of the clear opinion, that both the dying declarations corroborate with each other and they fully support the case of prosecution. The evidence of the doctor as well as the Sub-Inspector of Police and the Taluka Executive Magistrate, who recorded the dying declarations would fully support the case of the prosecution. Thus the trial Court is justified in concluding that the death is homicidal in nature.
17. As mentioned supra, the incident has taken place during the night of 17.1.2010 at 1.20 p.m. and the two dying declarations are recorded in the evening of 18.1.2010. The victim died on 24.1.2010 which means that the victim was alive till 24.1.2010. The very fact that the victim surviving for 7 days after the incident would clearly goes to show that she might be in a fit condition to make statement at least on 18.1.2010. The death was not instantaneous. The death did not occur immediately after recording of the dying declarations, to suspect the dying declarations. Having regard to the totality of the facts and circumstances, in our considered opinion, the trial Court is justified in relying upon the dying declarations while coming to the conclusion.
18. The evidence of P.Ws. 2, 14, 15 and 17 would clearly reveal that the accused was addicted to bad habits of consuming alcohol. Every day he used to come to the house fully drunk and torture the deceased both mentally as well as physically demanding money from her for consuming alcohol and in that regard, he used to harass the victim not only mentally but also physically. Despite number of panchayats held in the village, the accused did not mend his conduct. Though P.Ws. 2, 14, 15 and 17 are the near relatives of the deceased, their versions cannot be suspected. Merely because all are relatives, it cannot be said that they would depose falsely. It is natural for the near relatives to know as to what is happening within the family. All these witnesses have deposed about the panchayats held within the family members. The evidence of these witnesses is consistent, cogent and reliable and the same would amply prove that the accused used to harass the victim both physically and mentally for the aforementioned reasons.
19. The case of the prosecution is further supported by the versions of P.Ws. 14, 15 and 17 who have deposed about the oral dying declarations made by the victim in the hospital before them. P.W. 14 is the mother of the victim and P.Ws. 15 and 17 are the brothers of the victim. Their evidence clearly reveals that at about 11 p.m. on 17.1.2010, they received a telephonic call that the accused set the victim ablaze after pouring kerosene. They immediately rushed to the Chigateri Government Hospital, Davangere and saw the victim with burn injuries. At that point of time, the victim was in a fit condition to make statement and she was talking with clarity. On enquiry, the victim disclosed before them that the accused poured kerosene on her and set her ablaze.
20. Having regard to the aforementioned discussion, it is clear that the trial Court is justified in convicting the accused for the offences punishable under Sections 302 and 498A of IPC. Even on reconsidering the material on record, we do not find any reason to disagree with the reasons assigned and conclusions rendered by the trial Court. Accordingly, the appeal fails and the same stands dismissed.
