GOVINDAPPA & ORS.versusSTATE OF KARNATAKA

                        [2010] 6 S.C.R. 962


A                     GOVINDAPPA & ORS.
                                v.
                     STATE OF KARNATAKA
               (Criminal Appeal No. 1469 of 2008)
                           MAY 11, 2010
B
            [P. SATHASIVAM AND H.L. DATTU, JJ.]

         Penal Code, 1860: ss. 498-A/34, 302134 - Conviction
  under - Accused persons poured kerosene on deceased-
C daughter-in-law and lit fire on her- Dying declaration recorded
  by Magistrate - Certificate of doctor that the deceased was
  in fit state of mind to give dying declaration -Conviction based
  on dying declaration - Interference with - Held: Not called for
  - The evidence of doctor clearly showed that the deceased
D was in a sound state of mind while giving the dying declaration
  before Magistrate - Such a dying declaration has got due
  weight in the evidence - Further, evidence of eye-witnesses
  proved that accused ill-treated the deceased and subjected
  her to cruelty and that they were involved in the commission
E of the offences - Conviction upheld - Crime against Women
  - Evidence Act, 1872 - s.32 - Dying declaration.

       Prosecution case was that the accused persons who
  WE!re the in-laws of the deceased burnt her by pouring
  kerosene and lighting fire on her. The neighbors
F extinguished the fire and took the deceased to the
  hospital. The doctor, PW-7 treated the deceased and
  informed the police. The magistrate PW-12 recorded the
  dying declaration of the deceased in the presence of PW-
  7. Trial court convicted the appellants A-1, A-2, A-4 as also
G A-3, mother-in-law and A-5, grandmother-in-law for
  offences under Section 498-A/34 IPC and Section 302134
  IPC. On appeal, High Court upheld conviction of
  appellants; however it acquitted A-3 and A-5. Hence the
  appeal.
H                              962
  GOVINDAPPA & ORS. v. STATE OF KARNATAKA              963

    Dismissing the appeal, the Court                          A

     HELD: 1. It is essential that the person who recorded
the dying declaration must be satisfied that the deceased
was in a fit state of mind. The certification by the doctor
is essentially a rule of caution and, therefore, the          B
voluntary and truthful nature of the declaration can be
established otherwise. The evidence of doctor (PW-7)
clearly showed that the deceased was in a sound state
of mind while giving the statement before the Tahsildar
PW-12. In such circumstances, such a dying declaration        C
has got due weight in the evidence. Further, the doctor
explained that though the c:leceased sustained 100%
burn injuries, she was in a position to talk. In such
circumstances, her statement cannot be rejected on the
ground that she sustained severe burn injuries. Normally,
the person on the verge of death would not implicate          D
somebody falsely. In the light of dying declaration
coupled with the evidence of eye-witnesses, there was
ample evidence on record to hold that the appellants ill-
treated the deceased and subjected her to cruelty by
giving both mental and physical torture and in                E.
furtherance of their common intention only to commit the
murder of the deceased, poured kerosene and set fire on
her who ultimately succumbed to the injuries. The dying
declaration fully corroborated the evidence of Doctor and
Tahsildar who recorded it. [Para 15) [970-F-H; 971-A-D]       F

     2. The analysis of the prosecution witnesses,
particularly, PW-3, PW-4, PW-10 elderly person of the
village and PW-12 Taluk Executive Magistrate who
recorded the dying declaration of the deceased clearly        G
proved the involvement of appellants in the commission
of offence as charged and they were rightly awarded
sentence of life imprisonment. Though, it was pointed out
that there were certain discrepancies, they all were
minimal and did not affect the case of the prosecution.
                                                              H
    964      SUPREME COURT REPO~TS                [2010] 6 S.C.R.


A In view of the oral evidence of PW-3, PW-4, PW-6, PW-7,
  PW-9, PW-10, PW-12 coupled with dying declaration Ex.
  P-~l, the prosecution fully established its case against the
  appellants. [Para 16] [971-E-F]

B       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1469 of 2008.

         From the Judgment & Order dated 04.10.2007 of the High
    Court of Karnataka, Bangalore in Criminal Appeal No. 2573
    of 2006.
c
        Sanjay Jain, Vinay Arora, Mukesh Kumar for the
    Appellants.

         Sanjay R. Hegde, A. Rohen Singh, Ramesh K. Mishra,
    Vikrant Yadav, Ramesh Kr. Mishra for the Respondent.
D
          The Judgment of the Court was delivered by

        P. SATHASIVAM, J. 1. This appeal is directed against the
  final judgment and order dated 04.10.2007 passed by the High
E Court of Karnataka at Bangalore in Criminal Appeal No. 2573
  of 2006 whereby the High Court partly allowing the appeal
  acquitted Laxmibai - A-3, the mother of the appellants herein
  and Bhagirathi-A-5, the grandmother of appellants and affirming
  the sentence passed by the trial Court convicted A-1, A-2 and
F A-4, appellants herein, for offences under Section 498-A/34
  IPC and Section 302/34 IPC.

       2. The facts leading to the present appeal are as follows:
  The deceased - Renuka, was married to appellant No.1 about
  10 years prior to the date of the incident. As per the prosecution
G case!, on 10.12.2005, at about 12 noon, the appellants herein,
  along with their mother and grandmother tried to pour kerosene
  oil and lit fire on the deceased and because of that she raised
  hue and cry. On hearing her noise, five neighbours came and
  requested them not to do so but the accused persons asked
H them not to interfere in their family matter. Appellant No.3
 GOVINDAPPA & ORS. v. STATE OF KARNATAKA                965
            (P. SATHASIVAM, J.]

poured kerosene on the deceased and appellant No.2 set fire A
in the presence of the neighbours. After pouring kerosene, the
accused persons ran away from the house and the neighbours
extinguished the fire and covered the deceased with blanket
and had taken her immediately to the Government Hospital
Bagalkot. At about 2.:.>0 p.m., the Doctor (PW-7) informed the B
police and the Magistrate (Tehsildar) (PW 12) came to the
J-iospital at 4.30 p.m. and recorded the dying declaration of the
deceased which is filed as Ex. P-9. The Police Officer came
to the hospital after 7 p.m. and taken the statement of the
deceased which was written by Govindagowda Patil - PW-11, c
the neighbour, and F.l.R. was registered at the police station
at 7.15 p.m. which is Ex. P-10. The Investigating Officer, PW-
 17 came to the hospital at 8.30 p.m. and again tried to take
 the statement of the deceased but she was not in a position to
 give any statement and at 9.00 p.m., she died. The Inquest D
 Panchnama was prepared at about 11.00 p.m. On 11.12.2005,
 post mortem was conducted by the Doctor, PW-7, the report
 of .which is Ex. P-5. The Investigating Officer filed the charge
 sheet on 23.01.2006. On 26.06.2006, the Fast Track Court,
 Bagalkot framed the charges against all the five accused
 persons under Sections 498-A, 143, 147, 341, 302 read with E
 Section 149 1.P.C. By order dated 03.10.2006, the Fast Track
 Court, Bagalkot convicted all the five accused for the offence
 punishable under Sections 498-A, 143, 147, 341, 302 read
 with Section 149 1.P.C. and sentenced them to undergo
 rigorous imprisonment for two years and also sentenced them F
 to pay a fine of Rs.2000/- each in default, simple imprisonment
 for three months for the offence punishable under Section 498-
 A read with Section 149 l.P.C. and further convicted them for
 the offences punishable under Section 302/149 IPC and
 sentenced them to undergo imprisonment for life and to pay a G
 fine of Rs.10,000/- each in default, simple imprisonment for one
 year. All of them filed a Criminal Appeal being Appeal No. 2573
 of 2006 before the High Court. By order dated 04.10.2007, the
  High Court by partly allowing the appeal acquitted A-3 and A-
  5 of all the charges leveled against them and affirming the H
    9136      SUPREME COURT REPORTS                  [201 OJ 6 S.C.R.


A   sentence passed by the trial Court on A-1, A-2 and A-4
    convicted them for the offence punishable under Section 498-
    A/34 1.P.C. and Section 302/34 l.P.C. Aggrieved by the said
    order, accused Nos. 1, 2 and 4 have preferred this appeal by
    way of special leave petition.
B
          3. We have heard Mr. Sanjay Jain, learned counsel for the
    appellants-accused and Mr. Sanjay R. Hegde, learned counsel
    for the respondent-State.

           4. Points for consideration in this appeal are:-
c
           (i) Whether the Trial Court was justified in convicting the
           appellants-accused A-1, A-2, and A-4 for offences
           punishable under Section 498A, read with Section 34 IPC
           and Section 302 read with Section 34 IPC?
D          (ii) Whether the sentence imposed              upon the
           appellantsaccused is justifiable?

           (iii) Whether the High Court is right in confirming the
           conviction and sentence imposed on the appellants?
E
         5. In this appeal, we are concerned only with A-1, A-2 and
    A-4, since the other accused A-3 and A-5 were acquitted by
    the High Court.

       6. Apart from various materials in the form of oral and
F documentary evidence, the Trial Court accepted the evidence
  of eye-witnesses, namely, PW-3, PW-4, PW-5, PW-6 as well
  as Dr. Uma Kant PW-7 who treated Renuka, father of the
  deceased PW-9, one elderly person of the village PW-10 and
  Taluk Executive Magistrate PW-12 who had recorded the dying
G declaration of Renuka. Learned counsel for the appellants-
  accused pointed out that as per the prosecution, there were five
  witnesses present at the spot of incident, even before the victim
  was burnt, but none of them stopped the accused or tried to
  prevent the in.cident. He also submitted that the Trial Court and
H the High Court committed an error in relying upon the dying
 GOVINDAPPA & ORS. v. STATE OF KARNATAKA                     967
            [P. SATHASIVAM, J.]

declaration recorded by PW-12 since PW-12 has neither taken          A
the certificate from the Doctor nor asked any question to verify
the mental condition of the deceased Renuka, particularly, when
she suffered 100% burns as shown in the post-mortem report.

     7. At the foremc st, let us verify the evidence of Dr. Uma
                                                                     8
Kant PW-7 who treated the injured Renuka when she was
brought to the hospital. Though, he had stated that injured
Renuka had sustained 100% burn injuries, at about 4.45 p.m.,
according to him, she was in a fit state of mind to give
statement. Based on the statement of doctor PW-7, Taluka
Executive Magistrate PW-12 recorded her statement in the             C
presence of PW-7. It is further seen that after recording the
statement, her left thumb impression was taken on the
statement, the doctor PW-7 also subscribed his signature. It is
true that in the crossexamination it was elicited that the tongue
of the deceased was swollen and protruded and lips were              D
burnt. Though this suggestion has been admitted by PW-7, the
fact remains at the time of recording her statement PW-7 was·.
satisfied that Renuka was in a fit condition and in a fit state of
mind to make a statement. There is no reason to disbelieve
the version of PW-7 who made initial treatment and he was very       E
well present during the entire period of recording the statement
(Ex. P-9). We hold that the evidence of PW-7 coupled with PW-
12 are acceptable and support the case of the prosecution.

     8. Now, let us discuss the other eye-witnesses, first and       F
foremost is PW-3. According to him, he is residing in a house
adjacent to the deceased Renuka. He explained that he knew
the family members of the appellants and the deceased. He
also explained that sister-in-law of the deceased A-4 desired
to give her elder daughter in marriage to A-1 and because of         G
that Renuka was being assaulted by the appellants. He
deposed that on 10.12.2005 at 12.00 o'clock he heard a crying
sound from the house of the appellants. He along with others
went to the house of the appellants and they found A-1 , A-3 and
A-5 holding Renuka. A-2 had a match-box in his hand and A-           H
   ~168    SUPREME COURT REPORTS                [201 O] 6 S.C.R.


A 4 was holding kerosene can. Though he requested not to cause
  any harm to Renuka, according to him, the accused person
  were holding Renuka and sister-in-law (A-4) poured kerosene.
  He further asserted that after setting fire by pouring kerosene
  accused A-1 to A-4 ran away from the scene of occurrence.
B Though, he also implicated A-3 and A-5 in the commission of
  offence but in the absence of further corroboration, the High
  Court has rightly acquitted them. However, there is no reason
  to disbelieve the evidence of PW-3 insofar as A-1, A-2 and A-
  4 appellants herein that they were responsible for the cause of
c the death of Renuka.
       9. The next witness is Govindappa PW-4, who witnessed
  the incident and partly supported the case of the prosecution.
  He explained how the deceased was humiliated and harassed
  by the appellants. According to him, this was narrated to him
D by Renuka during her lifetime and on several occasions she
  had gone to her native place due to ill-treatment meted out to
  her at the hands of the appellants. He also explained that on
  10.12.2005 at about 12.00 o'clock, When he was in his house,
  he heard cries from the house of the appellants. He rushed to
E their house and saw in the first floor Renuka was in ablaze. As
  rightly observed by the High Court, though, PW-4 did not
  support the entire case of prosecution and he had been treated
  as hostile witness, his evidence to the extent A-2 and A-4
  participating in the commission of offence is proved. To this
F extent, the High Court has rightly accepted his testimony.

       10. The next eye-witness examined by the prosecution is
  one - Prakash PW-6. He explained how Renuka was humiliated
  and harassed by the appellants and on the relevant date and
G time and after hearing the cries he went to the first floor and
  found A-1, A-2 and A-5 were holding Renuka, A-4 was holding
  kE!rosene can and A-2 was holding a matchstick. He further
  dE~posed that the accused informed him that it is their family
  matter and none should interfere. At that time, A-4 poured
  kerosene on the body of Renuka and A-2 lighted match stick
H
  GOVINDAPPA & ORS. v. STATE OF KARNATAKA                  969
             [P. SATHASIVAM, J.]

and lit fire to Renuka and immediately all the accused ran away A
from the scene of occurrence. As observed by the High Court,··
the evidence of PW-6 shows that A-4 poured kerosene and A-
2 lit fire. The above statement of PW-6 finds support from the
dying declaration Ex. P-7. His assertion that A-1 was holding
Renuka also finds corroboration from the dying declaration Ex. B
P-9. ln other words, the evidence of PW-6 clearly proves the
participation of A-1, A-2 and A-4 in the commission of offence._

     11. Krishnappa, father of the deceased was examined as
PW-9. He explained how his daughter was harassed and               C
humiliated by the appellants. He also explained the desire of
A-4 sister-in-law of the deceased to give her elder daughter to
A-1. His evidence gets support from the dying declaration Ex.
P-9 and to this extent the same is acceptable and rightly relied
on by the High Court.
                                                                   D
    12. An elderly person from the same village had been
examined as PW-10 and he also narrated how the deceased
Renuka was humiliated and harassed at the instance of the
appellants.
                                                                   E
     13. Other important witness is H.N. Nagaraj, PW-12,
Taluka Executive Magistrate. He deposed before the Court that
he had recorded the dying declaration of Renuka and the same
was recorded after ascertaining her condition from PW-7 Dr.
Uma Kant. After noting that Renuka was in a fit state of mind
                                                                   F
from Dr. Uma Kant PW-7 and she was in a position to make
the statement, in the presence of PW-7 he recorded her
statement on 10.12.2005 at 4.45 p.m. He denied the
suggestion that Renuka was not in a position to make a
statement.
                                                                   G
     14. About dying declaration Ex. P-9, we have already
adverted to the evidence of Dr. Uma Kant (PW-7), Government
District Hospital Bagalkot. He explained that on 10.12.2005 at
2.20 p.m. injured Renuka w/o Govindappa Macha was brought
with history of burns on the same day at 1.00 p.m. and she was     H
    970     SUPREME COURT REPORTS                  [2010) 6 S.C.R.


A   admitted in the hospital and treatment was given to her. When
    Taluka Executive Magistrate (PW-12) came to the hospital at
    about 4.45 p.m., he enquired about the mental conditionof the
    patient and whether she is capable of giving statement for which
    PW-7 informed that the patient is in a fit state of mind to give
B   statement. Accordingly, the statement was recorded in his
    presence and then Renuka put her left thumb impression on the
    said statement and both the Doctor and the Magistrate also
    signed on the said statement. It is true that on the same night
    at 9.00 p.m. the injured expired due to burn injuries and post-
C   mortem was conducted. On examination of body, he found
    superficial (epidermal burn) all over the body. Hyperaemic skin,
    singeing of hair present, burn 100% few small blisters are seen
    over the face containing serous ferrous fluids, skin is red and
    hyperaemic, singeing of hair present on head, duramater is
    leathery, brain is shrunken and yellow. All the internal organs
0
    were congested, coal particles are seen in nose, mouth,
    trachea and oseophagus. Found smell of kerosene oil on her
    body. He is of the opinion that death is due to shock as a result
    of 100% burn, time since death is within 4 to 24 hours.
E   Accordingly, he issued the post-mortem report as per Ex. P-5,
    which bears his signature. PW-7 has also denied the
    suggestion that the deceased-Renuka was in the semicoma till
    the death.

        15. Though, it was argued that PW-12 Tahsildar has not
F obtained the certificate from the Medical Officer regarding
  condition of the deceased, that itself is not sufficient to discard
  the dying declaration (Ex. P-9). What is essential required is
  that the person who recorded the dying declaration must be
  satisfied that the deceased was in a fit state of mind. The
G certification by the doctor is essentially a rule of caution and,
  therefore, the voluntary and truthful nature of the declaration can
  be established otherwise. The evidence of doctor (Pw-7) clearly
  shows that the deceased was in a sound state of mind while
  giving the statement before the Tahsildar (PW-12). In such
H circumstances, we are of the view that such a dying declaration
  GOVINDAPPA & ORS. v. STATE OF KARNATAKA                    971 !
             [P. SATHASIVAM, J.]

has got due weight in the evidence. Further, as stated earlier,      A
the doctor has explained that though the deceased Renuka
sustained 100% burn injuries, she was in 2 position to talk. In
such circumstances, her statement cannot be rejected on the
ground that she sustained severe burn injuries. Normally, the
person on the verge of death will not implicate somebody             8
falsely. Even if we accept some contradiction in Ex. P-7
complaint, in the light of Ex. P-9 dying declaration coupled with
the evidence of eye-witnesses, there is ample evidence on
record to hold that the appellants ill-treated the deceased
Renuka and subjected her to cruelty by giving both mental and        C
physical torture and in furtherance of their common intention only
to commit the murder of the deceased, poured kerosene and
set fire on her who ultimately succumbed to the injuries on the
same day in the District Hospital, Bagalkot. In our view, -dying
declaration (Ex. P-9) fully corroborates the evidence of Doctor
and Tahsildar who recorded it.
                                                                     0

      16. The analysis of the prosecution witnesses, particularly,
PW-3, PW-4, PW-10 elderly person of the village and PW-~ 2
Taluk Executive Magistrate who recorded the dying declaration
of Renuka clearly proves the involvement of appellants in the        E
commission of offence as charged and they were rightly
awarded sentence of life imprisonment. Though, it was pointed
out that there were certain discrepancies, according to us, they
all are minimal and it had not affected the case of the
prosecution. As discussed earlier, in view of the oral evidence      F
of PW-3, PW-4, PW-6, PW-7, PW-9, PW-10, PW-12 coupled
with dying declaration Ex. P-9, we hold that the prosecution has
fully established its case against the appellants and we are in
entire agreement with the conclusion arrived by the High Court.

    17. In the light of the above discussion, we do not find any     G
merit in the appeal, consequently, the same is dismissed.

D.G.                                         Appeal dismissed.