Karnataka High Court
Fayazahammad S/O. Maradansab … vs The State Of Karnataka on 8 February, 2017
Author: Anand Byrareddy K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 8TH DAY OF FEBRUARY 2017

PRESENT

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

AND

THE HONOURABLE MR. JUSTICE K.SOMASHEKAR

CRIMINAL APPEAL No.2609 of 2013

Between

Fayaz Ahammad
S/O. Maradansab Shaikhsanadi
@ Doddamani
Age: 35 Years, Occupation Goundi,
R/O. Alladhageri,
Taluk Hirekerur, District: Haveri
… Appellant
(By Sri Srinand A Pachhapure, Advocate )

And

The State Of Karnataka
Represented by State Public Prosecutor,
Circuit Bench
(Hounsabhavi Police Station,
Hounsabhavi)
… Respondent
(By Sri V.M. Banakar, Additional State Public Prosecutor)

This criminal appeal is filed under section 374(2) Of
Code of Criminal Procedure seeking to set aside the order of
:2:
conviction dated 23.1.2013 and sentence dated 28.1.2013
passed by the P.O., Fast Track Court, Ranebennur In S.C.No.7
of 2011 and acquit the accused/appellant of the charge levelled
against him.

This Criminal Appeal coming on for hearing this day,
Anand Byrareddy J., delivered the following:

JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.

2. The appellant was the accused who was accused of having murdered his wife and was tried for the offences punishable under Sections 498A, 323, 504 and 302 of the Indian Penal Code, 1860(hereinafter referred to as the ‘IPC’ for brevity).

3. The background of the case as stated by the prosecution is that the appellant had married one Asma Banu about 4 years prior to the incident. But, however, the marriage had failed as the appellant was alleged to have given mental and physical torture to his wife and in spite of the elders and relatives advising him, he did not change his ways. It transpires that the wife had delivered a child and had returned to her matrimonial home after her delivery at her maternal home with a two month old baby. It transpires that on 06.10.2010 at about 6.00 p.m., she is said to have asked the accused as to when he would get the gold ornaments back which had been pledged by the accused. At which the appellant is said to have lost his temper and abused her in foul language and had assaulted her. On the next day at about 11.00 a.m. another quarrel is said to have broken out over a minor incident and again the accused is said to have assaulted her and had doused her with kerosene and set her ablaze. The neighbourers are said to have rushed her to the hospital. In the above background, a case was registered against the accused for the offences as aforesaid. She was admitted to hospital on 07.10.2010 and had suffered 95% burn injuries. She is said to have succumbed to the injuries on 09.10.2010 at about 4.00 p.m. Therefore, the case which had been registered for an offence punishable under Section 307 was converted to one for an offence punishable under Section 302 of IPC. It is, thereafter, that on further proceedings being completed and the matter having been committed to the Sessions Court, the appellant stood trial and has been convicted. It is that judgment of conviction which is under challenge in the present appeal.

4. The learned counsel for the appellant would point out that the trial Court has found that all the witnesses to the prosecution had either turned hostile or did not support the case of the prosecution. The guilt as found by the accused is entirely on the basis of the statement made by the deceased, which is sought to be treated as a dying declaration, at Ex.P-12. It is emphasized that when the deceased had suffered 95% burn injures and which have been defined in the postmortem as “deep burn injuries”, according to the authorities on Medical Jurisprudence, the degree of burns have been divided into 6 degrees but have been merged into 3. The pressure and depth of burn can be measured by considering the nature of its severity. Epidermal Burns is known as the first and second degree burns, Dermo-Epidermal burns is known as the third and fourth degree and Deep Burn injuries are known as fifth and sixth degree burns. Therefore, it is contended by the learned counsel that the burns which are defined as deep burn injuries are of the highest degree and therefore when the victim had suffered 95% injuries, it is highly impossible that she had provided the statement which is recorded at Ex.P-12 and the said statement which is in the form of a complaint in great detail as to the relationship of the deceased with the accused, the ill-treatment that was meted out to her and other details, as if, made by a healthy person in a normal state of mind, cannot be attributed to have been made by the victim of burn injuries who had suffered 95% burns. The fact that the particulars and the details of the treatment that the deceased had undergone from the time of her admission to the hospital and thereafter not being made available, would not support the case of the prosecution that she was in a fit state of mind to make any kind of statement let alone a detailed statement such as recorded in Ex.P-12. Therefore, it is emphasized, that the victim would have suffered excruciating pain and would have been unconscious as again indicated by Medical Authorities in such cases and a person who had suffered such injuries would be required to put on sedation to tide over the extreme trauma and pain that the victim would undergo and therefore it is highly impossible that any such statement was made as recorded at Ex.P-12 which is sought to be claimed as a dying declaration. The learned counsel would also point out that a Constitution Bench of the Supreme Court in the case of Laxman Vs. State of Maharashtra ((2002) 6 SCC 710), no doubt has laid down as to the requirement of a dying declaration which would satisfy the test of genuineness. The court having gone to the extent of holding that the certification of a medial practitioner as to the victim being in a fit state of mind to make a dying declaration is only a rule of caution and hence the voluntary and truthful nature of the declaration can even be established otherwise. But the dying declaration should readily appeal to the Court as being plausible and acceptable and not a statement such as Ex.P-12. Therefore, the learned counsel would point out that in the face of the trial Court having held that opinion of the material witness has supported the case of the prosecution and the only basis on which the accused had been found guilty is the so called dying declaration has resulted in grave injustice and that the same requires to be set aside.

5. While the learned Additional State Public Prosecutor would point out that Ex.P-13 is a certification issued by a medical practitioner to state that the deceased was in a fit state of mind to make the dying declaration and it is pursuant to this, that the statement has been recorded and the dying declaration, as held by the Apex Court, should be treated with great reverence and given its evidentiary value and weight should be attached to the dying declaration. The learned Additional State Public Prosecutor however, would seek to place reliance on the decision of the Supreme Court in Vijay Pal v. State(Government of NCT of Delhi) ((2015) 4 Supreme Court cases 749) to contend that even a victim who has suffered 100% burns, is quite capable of making a dying declaration and this is endorsed by the Supreme Court in the above judgment. It is contended that from a reading of the judgment in Vijay Pal’s case, the Supreme Court while passing the judgment has referred to a decision in Mafabhai Nagarbhai Raval. v. State of Gujarat ((1992) 4 SCC 69) wherein it was held that a person suffering 99% burn injuries can be deemed capable enough for the purpose of making a dying declaration. The court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance. Further the Supreme Court has referred to yet another decision in State of M.P. v. Dal Singh ((2013) 14 SCC 159), wherein a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible and hence would seek to justify the judgment of the court below.

6. In the above said circumstances, as pointed out by the learned counsel for the appellant, the only basis for conviction was the dying declaration or the statement of the deceased which is construed as a dying declaration upon her death. It is not in dispute that the deceased had suffered deep burn injuries. Initially, the medical records of the first aid that was provided and the treatment that the victim received on admission to the hospital, is not forthcoming from the record. Therefore, the status of the victim at the initial stage is not evident from the record. The subsequent certification by the medical practitioner on 18.10.2010 at about 1.50 p.m. to the effect that she was in a fit state of mind to make the statement, has prompted the head constable, purportedly, to record the statements made by the victim by the complainant as at Ex.P-12. The same is reproduced hereunder for ready reference:

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7. As seen from the first sentence of the said Ex.P-12, she has provided a lengthy cell phone number. This itself would take much effort for a person who has suffered 95% burn injuries and to expect this Court to believe that the victim was capable of making a further two page complaint in a cogent and coherent manner, when she would have been barely able to speak and was possibly not even fully conscious, is difficult to accept, on the face of it, since the victim was apparently not in a position to make any kind of statement or a dying declaration. Ex.P-12 has been generated, only, in order to frame the accused as otherwise, there was no evidence against the accused as to the manner in which the incident had taken place and there were no direct eyewitnesses to the incident. Therefore, placing reliance on the said statement would result in a miscarriage of justice. According to the text book on Medical Jurisprudence and Toxicology, 24th edition by Modi at page 486 with reference to sixth degree burns which are characterized as deep burns, it is stated that if death is not an immediate result, the victim may even recover, once the initial shock is overcome. Therefore, if the incident having taken place at 11.00 a.m. and since when there is 95% burn injuries, the victim would have suffered severe shock and to expect that she would have overcome the shock by 1.50 p.m. on the next day is difficult to believe, as the victim would have been under excruciating pain and suffering and hardly capable of speaking. Therefore, the said statement cannot be readily accepted.
8. The contention of the learned Additional State Public Prosecutor that the dying declaration must be treated with reverence and must be given evidentiary value as stated by the Apex Court is dependent on the other facts and circumstance which are acceptable to the court. Merely because a document is styled as a dying declaration, it need not be mechanically accepted by the Court unless the Court is satisfied that it is a genuine denying declaration and which could have been recorded in circumstances which do not create any suspicion or doubt. The want or otherwise of medical certification to state the state of mind of the victim though may not be necessary, the other circumstances do matter and in the present case on hand, we have no hesitation in holding that the so called dying declaration at Ex.P-12 is not a genuine document that has been recorded on the say of the deceased as sought to be contended by the prosecution. It is highly unlike.

9. Insofar as the reliance placed by the learned Additional State Public Prosecutor on Vijay Pal’s case to contend that notwithstanding the victim having suffered 95% burn injuries she was capable of making a statement as recorded at Ex.P-12 would have to be to the satisfaction of this Court. In that the Supreme Court has not held that the document produced as dying declaration should be mechanically accepted. Even if the victim had suffered 100% burn injuries it is quite possible that the dying declaration made was credible and was found acceptable on examination. In the present case on hand, on a close examination of the so called dying declaration we are of the opinion that the victim was not capable of making any such dying declaration particularly, if, the photographs of the victim as found at page 50 of the paper book, is seen, it is impossible that she was capable of making such a detailed and coherent statement as recorded at Ex.P-12. The dying declaration even if it should be in the ‘question-answer’ format, where questions are posed and if the victim without any difficulty can either indicate ‘Yes’ or ‘No’ even by signs, it would be sufficient to qualify as a dying declaration. Therefore, it would depend on the facts and circumstances as to the manner in which the dying declaration is recorded and the credibility of the said dying declaration should satisfy the conscience of the Court. Therefore, in the present case on hand, we have no hesitation in negating the so called dying declaration at Ex.P-12. Therefore, the benefit of doubt would be to the accused. The prosecution has not established its case beyond all reasonable doubt.

Accordingly, the appeal is allowed. The judgment of the Court below is set aside. The appellant-accused is acquitted. The accused shall be set at liberty forthwith.

The operative portion of the Judgment shall be communicated to the Jail authorities concerned, forthwith, for immediate compliance.

Sd/-

JUDGE Sd/-

JUDGE kmv

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