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IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)
M.G. Uma, J.
Siddalingappa @ Siddalingagouda - Appellant
Versus
Devappa Kumatada - Respondent
Criminal Appeal No. 2660 of 2011
Decided On : 14-07-2020
Indian Penal Code - Section 509, 506 and 306 – Criminal Procedure Code - Section 209 – Acquittal of order – First Information Report - Whether accused was responsible - Whether he abated commission of suicide by deceased - Whether injured was in conscious state and is in a position to give her statement - Whether deceased was in a fit mental condition to make dying declaration look up to medical opinion - Whether accused can be convicted only on basis of such dying declaration when victim has sustained of burn injuries and Doctor had given evidence that injured was given pain killer and was injected and thereafter dying declaration was recorded - It is contention of prosecution that accused and deceased were working as teachers in Government Higher Primary School and accused with an intention to insult and to outrage modesty of deceased was making signs and gesturers seeking sexual favors from her - He was also threatening deceased and criminally intimidating her and thereby instigating her to commit suicide - Due to abatement by accused deceased committed suicide by self immolation by pouring kerosene and setting fire which has resulted in her death thereby accused committed offence punishable under Sections 509, 506 and 306 of IPC - On basis of statement of injured complaint was filed by CW-1 - Police registered FIR in Crime for offences punishable under Sections 506, 354 and 509 of IPC - During investigation injured had died and after investigation charge sheet was came to be filed for offences punishable under Sections 506, 509 and 306 of IPC – Held, Honble Apex Court held that even though deceased had suffered burn injuries there was no reasons as to why dying declaration which is otherwise found to be proved voluntarily and correct should be rejected simply because person who recorded dying declaration did not take signatures or thumb impression of deceased on it - On finding dying declaration as true and made voluntarily and also trustworthy and since there was no reason as to why same is to be disbelieved said dying declaration was accepted - Even evidence of PW-22 who recorded dying declaration is not satisfactory to rely on same - Witness specially states that four or five relatives of deceased were standing nearby her and deceased was frightened while giving declaration - All these facts and circumstances do not repose confidence about genuinely of dying declaration Ex.P17 - Unfortunately expect Ex.P17 there are no other materials against accused to attract either Sections 506, 509 or 306 of IPC – Court may also refer to decision of Honble Apex Court wherein Honble Supreme Court even though held that dying declaration stands proved considered fact whether accused can be convicted only on basis of such dying declaration when victim has sustained of burn injuries and Doctor had given evidence that injured was given pain killer and was and thereafter dying declaration was recorded - Serious doubt as to whether victim was in fit state of mind to make statement while suffering from burn was considered - Honble Apex Court expresses its opinion that victim must have been in great agony and once a sedative had been injected possibility of her being in a state of delusion cannot be completely ruled out - Apex Court noted that endorsement made by Doctor that victim was in fit state of mind to make statement has been made not before statement but after statement was recorded - But normally it should be other way round - In present case there is not even an endorsement either before or after recording statement of injured about her fitness by doctor and even evidence of Executive Magistrate-PW22 discloses that injured was very much afraid and her relatives were standing nearby - All these facts and circumstances will not inspire confidence in mind of court and court feel it is not safe to believe such dying declaration as sole basis to convict accused - From discussion held above it is clear that there are no direct evidence about involvement of accused in abating commission of suicide by deceased nor there are any material to attract Sections 506 or 509 of IPC - Only material relied on by prosecution is Ex.P17 is not proved by prosecution in accordance with law - In absence of any medical evidence to prove fit state of mind of deceased to give declaration and that declaration was voluntary same cannot be relied upon – Therefore court of opinion that prosecution has failed to prove guilt of accused for offences punishable under Sections 509, 506 and 306 of IPC beyond reasonable doubt - Accused is naturally entitled to benefit of doubt and is entitled to be acquitted – Court have gone through impugned judgment of acquittal passed by trial Court - It has taken into consideration all these materials on record and has arrived at right conclusion in acquitting accused – Court do not find any reason to interfere with same - Appeal is dismissed
JUDGMENT
M. G. Uma, J. - The appellant is before this Court aggrieved by the impugned judgment of acquittal dated 28/8/2010 passed by the learned Fast Tract Court-II Koppal, (for short hereinafter referred to as 'the trial Court' ) in S.C.No.37/2009 where under the respondent accused was found not guilty for the offences punishable under Section 509, 506 and 306 of IPC and acquitted him for the said offences.
2. Heard the learned advocates Sri. B.C.Patil for the appellant and perused written submissions filed by him. I have also heard Sri. C.R.Hiremath, for respondent No.1 and Sri. Ramesh B.Chigari, HCGP for respondent No.2, who supported the contention of appellant.
3. Parties are referred to as per their rank assigned to them before the trial Court.
4. Brief facts of the case are as follows:
It is contention of the prosecution that accused and deceased Manjula were working as teachers in Government Higher Primary School in Kukanapalli and the accused with an intention to insult and to outrage the modesty of the deceased Manjula was making signs and gesturers seeking sexual favours from her. He was also threatening the deceased and criminally intimidating her and thereby instigating her to commit suicide. Due to the abatement by the accused, the deceased committed suicide on 27/1/2009 at 7.30 p.m. by self immolation by pouring kerosene and setting fire, which has resulted in her death on 29/1/2009, thereby the accused committed the offence punishable under Sections 509, 506 and 306 of IPC.
5. On the basis of the statement of the injured, the complaint was filed by CW-1. Munirabad police registered FIR in Crime No.34/2009 for the offences punishable under Sections 506, 354 and 509 of IPC. During investigation the injured had died and after investigation, the charge sheet was came to be filed for the offences punishable under Sections 506, 509 and 306 of IPC.
6. The committal Court took cognizance of the matter and after following the procedure as contemplated under Sections 207 and 208 of Cr.P.C., passed the committal order as required under Section 209 of Cr.P.C. The learned Principal District and Sessions Judge, Koppal, made over the matter to the Fast Track Court II Koppal, for disposal in accordance with law. The trial Court after securing the presence of the accused framed charges against his for the above said offences. Accused has pleaded not guilty and claimed to be tried. After hearing the prosecution and the learned Advocate for the accused, the trial was fixed.
7. The prosecution in order to prove the guilt of the accused, got examined 22 witnesses, got marked 17 documents and identified 4 material objects. The statement of the accused was recorded under Section 313 of Cr.P.C. The accused has denied the incriminating materials available on record but has not chosen to lead any evidence in support of his defence. The trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and acquitted the accused for all the above said offences.
8. Aggrieved by the impugned judgment, PW-2-the father of the deceased preferred this appeal on various grounds. It is contended by the learned Advocate for the appellant that the trial Court has committed an error in acquitting the accused and the impugned judgment has resulted in miscarriage of justice. The prosecution witnesses examined before the trial Court spoke about commission of the offence by the accused and unnatural death of the deceased due to the abatement by the accused is also proved. But inspite of that, the trial Court proceeded to acquit the accused without any basis. The finding of the trial Court that the prosecution has not proved Exs.P11 and 17, i.e. the statement of the victim which was treated as first information and the dying declaration of the deceased, recorded just before death, have not been proved. The evidence of PW-22 fully suppo
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