JAYAMMA & Anr. v. STATE OF KARNATAKA

#2. Having meditated over the issue to the extent it is possible, and on a minute examination of the original document- dying declaration (without understanding its contents as it is in Kannada language except that the endorsement of the doctor is in English) read with its true translation placed on record, it is not found to be totally safe to convict the appellants on the basis of the said document alongwith its corroboration by PW-11, police officer and PW-16, doctor for the several reasons. Firstly, the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose with such precision. Although it is stated that deceased was questioned by the Police officer, the purported dying declaration is not in a questions and answers format. The direct or indirect dominance of the Police Officer appears to have influenced the answers only in one direction. Secondly, the injured victim was an illiterate old person and it appears beyond human probabilities that she would have been able to narrate the minutes of the incident with such a high degree of accuracy. Thirdly, there is sufficient evidence on record that the victim had been 13 A B C D E F G H SUPREME COURT REPORTS [2021] 5 S.C.R. administered highly sedative painkillers. Owing to 80% burn injuries suffered by the victim on all vital parts of the body, it can be legitimately inferred that she was reeling in pain and was in great agony and the possibility of her being in a state of delusion and hallucination cannot be completely ruled out. The doctor (PW- 16) made the endorsement that the victim was in a fit state of mind to make the statement ‘after’ the statement was recorded and not ‘before’ thereto - being the normal practice. It further appears that faculties of the injured had been drastically impaired and instead of making statement in an informative form she had apparently endorsed what the Police Officer (PW-11) intended to. True it is that the Police Officer (PW-11) had no axe to grind or a motive to implicate the appellants, but his over-enthusiasm to solve a criminal case within no time seems to have swayed the Police Officer (PW-11) so much that he appears to have not asked the doctor to make an endorsement of fitness of the victim before recording the statement. He also did not deem it appropriate to call a Judicial or Executive Magistrate to record such statement, for the reasons best known to himself. Fourthly, there is a serious contradiction between the statement of PW-16 on one hand and PW-11 on the other, in respect of the nature of burn injuries suffered on different body parts of the victim. While the doctor acknowledges that burn injuries included the hands of the victim, the police officer claims that her hands were safe and she could put her thumb impression. The thumb impression is seen very scrupulously and the same appears to be absolutely natural. If that is so, the medical officer, whose statement should carry more weightage in respect of the nature and gravity of injuries, stands belied. Fifthly, and most importantly the police officer PW-11 candidly admits that he did not seek an endorsement from the doctor as to whether the injured was in a fit state of mind to make a statement, before he proceeded to record the statement. Both the police officer as well as the doctor have tried to cover up this serious lacuna by referring to the purported oral endorsement of the doctor. It appears that the police officer was in full command of the situation and with a view to fill up the legal lacuna, he later on secured the endorsement from the doctor PW-16 on the available space of the paper, which is ex-facie unusual and not in 14 A B C D E F G H JAYAMMA & ANR. v. STATE OF KARNATAKA line with settled legal procedure. Sixthly, the alleged motive for the homicidal death is highly doubtful. There is not an iota of evidence, and the prosecution has made no effort to verify the truth in the statement that the appellants poured kerosene and lit the victim on fire only because her son had assaulted the husband of Appellant No.1 and the accused were insisting on payment of Rs.4,000/- which was spent on the treatment of the said assault–victim. Not much can be said when the deceased’s own son and daughter-in-law have denied this incident and rather claimed that their mother/mother-in-law committed suicide. The Seventh reason to dissuade from harping upon the dying declaration is the conduct of the parties, i.e., a natural recourse expected to happen. Had it been a case of homicidal death, and the victim’s son PW-2 and her daughter-in-law PW-5 had witnessed the occurrence, then in all probabilities, they would have, while making arrangement to take the injured to hospital, definitely attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor and the police officer suggest that while the son, daughter-in-law and neighbour of the deceased were present in the hospital, none approached the police to report such a ghastly crime. It is difficult to accept that the son and daughter-in-law of the deceased were won over by the accused persons within hours of the occurrence. This unusual conduct and behaviour lends support to the parallel version that the victim might have committed suicide. The Eighth reason which makes this Court reluctant to accept the contents of purported dying declaration, is the fact that victim was brought to the Civil Hospital at 12.30 a.m. on 22.09.1998. She succumbed to her burn injuries after almost 30 hours later at 5:30 am on 23.09.1998. It is neither the case of prosecution nor has it been so stated by PW-11 or PW-16 that soon after recording her statement she became unconscious or went into coma. The prosecution, therefore, had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. It is common knowledge that such Officers are judicially trained to record dying declarations after complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. The law does not compulsorily 15 A B C D E F G H SUPREME COURT REPORTS [2021] 5 S.C.R. require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case. [Para 22][31-G-H; 32-A-H; 33-A-H; 34-A-D]

#3. The High Court’s view regarding conviction of the appellants is departed from because the power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ‘possible view’. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact. [Para 23][34-E-G]

#4. It may be seen that the High Court dealt with the appeal against acquittal summarily and did not even discuss the ocular evidence, especially of the son and daughter-in-law of the deceased, who have, to some extent, belied the version of the doctor (PW-16) or the investigating officer (PW-11). It is said so because according to (PW-2), son of the deceased, the victim had lost consciousness and was unable to speak at the time when she was rushed to the hospital in a bullock cart arranged by (PW- 3). Without discarding or disbelieving such statement(s), it is difficult to accept that injured was in a fit state of mind at 1:15 a.m. when the alleged dying declaration was recorded. Her state 16 A B C D E F G H JAYAMMA & ANR. v. STATE OF KARNATAKA of mind can be well imagined due to the combined effect of the trauma and the administration of painkillers. The High Court, on the other hand, relied upon the dying declaration as the same was purportedly corroborated by the statements of doctor (PW- 16), and the police official (PW-11) who authored the document. Such a conclusion, is totally erroneous and based upon misreading of the evidence on record. According to PW-16, the victim had suffered 80% injuries including on her hands. As against it, the Police Officer PW-11 claims that there were no burn injuries on the hand of the victim, hence she could put her left thumb impression on the dying declaration. These glaring contradictions should not have gone unnoticed by the High Court. [Para 24] [34-H; 35-A-E]

#5. The document itself recites that son of the injured- deceased, had beaten the husband of Appellant No. 1 and the appellants had statedly incurred medical expenses to the tune of Rs. 4,000/- which they demanded from the injured-deceased and then they doused kerosene and set her on fire. In the absence of any provocation from the side of injured, the cause itself being so trivial in nature and the factum of causing any injuries to the husband of Appellant No. 1 having been expressly denied by the daughter-in-law of the deceased, coupled with the fact that there is no evidence whatsoever to prove that any such incident took place, the so-called motive has not been proved at all and the declaration, thus, recites a non-existent incident. [Para 25] [35-E-G]

#6. The Additional Session Judge, formulated point as to whether the prosecution was able to prove beyond all reasonable doubt that the accused persons with an intention to kill the victim went to her house and picked up a quarrel in connection with a previous dispute and then doused her with kerosene and set her ablaze. The Additional Sessions Judge extensively examined the entire evidence and after reaching to the conclusion that all the witnesses of the motive or the occurrence have resiled and declared hostile, he was left with the residuary question to decide as to whether the death was suicidal or homicidal. He, thereafter, considered the dying declaration threadbare and critically analysed the statements of PW-11 and PW-16. The factors like 17 A B C D E F G H SUPREME COURT REPORTS [2021] 5 S.C.R. interpolation in the dying declaration; contradiction in the statements of PW-11 and PW-16 regarding injuries on the palm; the victim with 80% injuries was apparently not in a situation to talk or give statement; son of the deceased himself stated that his mother committed suicide as she could not bear that her another son had been sent to jail; there being no corroborative evidence to the statement; and there is no other evidence led by the prosecution to connect the appellants with the crime except the statement, he held it unsafe to convict the appellants on the solitary basis of the dying declaration. The view taken by the trial court is fully endorsed. The reasons which assigned are sufficient to cast doubts on the genuineness of the prosecution case. Thus, it is difficult to uphold the conviction only on the basis of the dying declaration. [Paras 26 & 27][35-H; 36-A-E] Chandrappa v. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630; Perla Somasekhara Reddy and Others v. State of A.P. (2009) 16 SCC 98: [2009] 8 SCR 145 ; State of Rajasthan v. Shera Ram (2012) 1 SCC 602 : [2011] 15 SCR 485; Shyam Babu v. State of Uttar Pradesh (2012) 8 SCC 651 : [2012] 8 SCR 255; Murugesan v. State (2012) 10 SCC 383 : [2012] 13 SCR 1; Mookkiah v. State (2013) 2 SCC 89 : [2013] 2 SCR 881; Shivasharanappa v. State of Karnataka (2013) 5 SCC 705 : [2013] 5 SCR 1104; Surinder Kumar v. State of Haryana (2011) 10 SCC 173 : [2011] 12 SCR 1205; Paparambaka Rosamma & Ors v. State of A.P. (1999) 7 SCC 695 : [1999] 2 Suppl. SCR 328; Vijay Pal v. State (Government of NCT of Delhi) (2015) 4 SCC 749 : [2015] 3 SCR 394 – referred to. Case Law Reference [2007] 2 SCR 630 [2009] 8 SCR 145 [2011] 15 SCR 485 [2012] 8 SCR 255 [2012] 13 SCR 1 referred to referred to referred to referred to referred to Para 9 Para 9 Para 9 Para 9 Para 9 18 A B C D E F G H JAYAMMA & ANR. v. STATE OF KARNATAKA [2013] 2 SCR 881 [2013] 5 SCR 1104 [2011] 12 SCR 1205 referred to referred to referred to [1999] 2 Suppl. SCR 328 referred to [2015] 3 SCR 394 referred to [2003] 1 Suppl. SCR 745 referred to (2003) 1 SCC 112 referred to [2006] 5 Suppl. SCR 709 referred to [1992] 2 SCR 197 [2019] 5 SCR 904 referred to referred to Para 9 Para 9 Para 9 Para 9 Para 10 Para 14-A Para 14-B Para 14-C Para 14-C Para 17 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 758 of 2010. From the Judgment and Order dated 29.07.2008 of the High Court of Karnataka, at Banglore in Criminal Appeal No. 672 of 2002. With Criminal Appeal No. 573 of 2016. Shekhar G. Devasa, Manish Tiwari, Rahul Kulhare for M/S. Devasa & Co., Vijay Kumar, Ms. Vidushi Garg, Ms. Vithika Garg, Advs. for the Appellants. Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal, Advs. for the Respondent. The Judgment of the Court was delivered by SURYA KANT, J. These Criminal Appeals, which have been heard through video conferencing, are directed against the common judgment dated 29.07.2008 passed by the High Court of Karnataka at Bangalore whereby the findings of the trial Court were reversed and after setting aside the appellants’ acquittal, they have been convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) and consequently sentenced to life imprisonment. 19 A B C D E F G H SUPREME COURT REPORTS [2021] 5 S.C.R. FACTS

#2. The parties in the present case are closely related. The case of the prosecution is that there was a long-standing animosity between the families of Jayamma wife of Reddinaika (Appellant No.1) and Jayamma wife of Sanna Ramanaika (deceased) and in connection thereto, a quarrel took place on 10.09.1998 in which, Thippeswamynaika son of the deceased assaulted and injured Reddinaika (Husband of Appellant No.1). Thereafter the appellants allegedly went to the house of the deceased on 21.09.1998 and confronted her about the assault on Reddinaika. The appellants demanded Rs. 4,000/- for the cost incurred on the medical treatment of Reddinaika. After a heated exchange of words, the appellants allegedly doused the deceased-Jayamma in kerosene and set her on fire. Specific roles have been attributed to all the appellants in respect thereto. Upon hearing the wails of Jayamma, her other son Ravi Kumar (PW-2) and daughter-in-law Saroja Bai (PW-5; wife of Thippeshi or Thippeswamynaika) came to the spot and tried to extinguish the fire. The appellants meanwhile ran away from the spot. Since Jayamma was seriously injured, PW-2 sought help from Kumaranaika (PW-3) to shift Jayamma to the hospital. PW-2 and PW-3 then took the injured-Jayamma on a bullock cart to Primary Health Centre (P.H.C.), Thalak and there Dr. A. Thippeswamy (PW-16) provided primary treatment to the injured- Jayamma, including, administering her certain pain killers. Dr. A. Thippeswamy (PW-16) sent medico-legal case information to the Thalak Police Station, and on receipt thereof, SHO K.V. Mallikarjunappa (PW- 11) reached the hospital and recorded the statement of the injured Jayamma (Ex. P-5) in the presence of PW-16. Jayamma in her statement implicated all the appellants. On the basis of the said statement, Crime No. 101 of 1998 was registered at the Thalak Police Station under Sections 504, 307, 114 read with Section 34 of IPC. Owing to the seriousness of injuries, the victim was later shifted to Government Hospital, Chitradurga. However, on 23.09.1998 at 5:30 AM, Jayamma succumbed to her injuries.

#3. Upon being notified about the death of Jayamma, the Police sent a requisition to the Court, requesting that offence under Section 307 read with Section 34 IPC be altered to offence under Section 302 read with Section 34 IPC. ASI J. Sanjeeva Murthy (PW-14) thereupon visited the Hospital and conducted the inquest. The body was sent for post mortem examination and a report was made by Dr. Sunil Chowhan (PW- 20 A B C D E F G H JAYAMMA & ANR. v. STATE OF KARNATAKA [SURYA KANT, J.] 19), wherein, it was opined that Jayamma died of shock due to extensive burn injuries. Thereafter, the police visited the spot, drew the mahazar and made certain seizures in the presence of Rameshnaika (PW-1) and Eshwarnaika (PW-15). During the course of further investigation, PSI Chandrahas Naik (PW-13) and CPI Shankar (PW-18) recorded the statements of witnesses and arrested the appellants. Appellant No.1, however, was able to obtain anticipatory bail and was, thus, released after her arrest.

#4. After the completion of investigation and filing of charge-sheet, the case was committed to the court of Additional Sessions Judge at Chitradurga. Charges were framed under Sections 504, 302, 114 read with Section 34 IPC against the appellants, to which they pleaded not guilty and claimed trial. The prosecution examined nineteen witnesses and thirteen documents to establish the guilt of the accused. The case of the appellants, as recorded in their statements under Section 313 of the Code of Criminal Procedure, 1973 (“CrPC”) was one of total denial. No defense evidence was led by them.

#5. During the course of trial, several prosecution witnesses turned hostile. PW-2, son of the deceased, put forward an alternative chain of events wherein he claimed that the deceased committed suicide because she couldn’t bear the fact that her son Thippeswamynaika was arrested and sent to jail for beating husband of the 1st appellant. PW-2 further stated that the deceased was unable to speak after the incident. In a similar vein, daughter-in-law of the deceased (PW-5) also contradicted the prosecution version and denied any knowledge as to how the deceased died. Regarding the arrest of her husband Thippeswamynaika, PW-5 disputed the fact that any quarrel had taken place on 10.09.1998 and claimed that she was not aware of the reason behind her husband’s arrest. PW-1 and PW-15 who are mahazar witnesses also did not support the prosecution case; they denied being called by the Police and stated that nothing was seized in their presence. The only material witnesses who supported the prosecution version were PW-11 (K.V. Mallikarjunappa) and PW-16 (Dr. A. Thippeswamy). They deposed that the statement of the deceased (Ex.P-5), accusing the appellants for the murderous attack on her was genuine and voluntary.

#6. Since it was not in dispute that Jayamma died due to burn injuries, the crucial question before the trial Court was whether the death was suicidal or homicidal. The trial Court noted that the sole material on 21 A B C D E F G H 22 A B C D E F G H SUPREME COURT REPORTS [2021] 5 S.C.R. record to connect the accused persons with the offence of murder was the statement of the deceased Ex.P5, which was being treated as a dying declaration. The prosecution heavily banked upon the said statement in order to prove the guilt of the accused. However, upon considering the mitigating circumstances such as testimonies of the hostile witnesses, nature of burn injuries of the victim, and the lack of any corroborative evidence, the trial Court was of the opinion that the prosecution had failed to prove the genuineness of Ex.P5 beyond all reasonable doubt. The evidence of PW-11 and PW-16 who had supported the prosecution case was found to be vague and unsatisfactory. Consequently, the Court held that the prosecution had failed to discharge its onus and acquitted the appellants.

#7. The High Court in appeal reversed the findings of the trial Court and held that the evidence consisting of dying declaration was clinching and sufficient to bring the guilt home. While several arguments appear to have been raised on behalf of the appellants, the High Court brushed aside the same, plainly stating that no credence could be attached to the testimonies of the hostile witnesses. The High Court instead placed emphasis on the testimonies of PW-11 and PW-16 who had corroborated the contents of the dying declaration (Ex.P-5). The High Court found no good ground to disbelieve either the testimonies of PW-11 and PW-16, or the contents of the dying declaration (Ex.P-5), and reversed the acquittal awarded by the trial court. The appellants were consequently convicted under Section 302 read with Section 34 IPC and sentenced to life imprisonment.

#8. Discontented with the order of the High Court, the appellants have assailed their conviction and sentence through these two criminal appeals. Since the High Court has summed up its conclusions by way of a brief order, we deem it appropriate to reproduce the two relevant paragraphs no.4 and 6 of its impugned judgment which are to the following effect:- “4. On through consideration we find that although the material witnesses PWs.2 and 5 have turned hostile, the evidence placed by the prosecution by way of dying declaration is very much clinching. PW 11 recorded statement and testified the fact of recording statement at Ex.P-5 and his evidence also discloses that it was recorded in the presence of the doctor PW16 and the doctor has given endorsement at JAYAMMA & ANR. v. STATE OF KARNATAKA [SURYA KANT, J.] Ex.P-5. He has also deposed that the deceased was in a fit state of mind and she gave the statement voluntarily which was recorded by PW11 in his presence. The contents of Ex.P- 5 implicates all the accused for causing murder with common intention. xxx xxx xxx

#6. On thoroughly going through the documents, we find that no credence could be attached to the evidence of the witnesses who have turned hostile. PW16 is an independent witness. The evidence of PW 16 discloses that the deceased made a statement at Ex.P-5 and it is voluntarily and that she was in a fit state of mind to give her statement. The evidence of PW 11 shows that he recorded statement in the presence of PW16 and Ex.P-5 contains the endorsement of the doctor. There is no good reason to disbelieve the version of PWs. 1 (sic) and 16 and the contents of Ex.P-5. The autopsy report discloses that the death is on account of burn injuries which corroborates the e=contents (sic) of Ex.P-5. In view of the above, we find that the acquittal is bad in law and hence, the same is set aside. In the result we pass the following order: The appeal is allowed. Accused Nos. 1 to 4 are convicted for an offence punishable under Section 302 read with Section 34 of IPC. The accused persons are sentenced to life imprisonment.” CONTENTIONS

#9. We have heard learned counsels for the parties at considerable length and perused the record in-depth. The principal contentions raised on behalf of the appellants are that the High Court’s order is totally cryptic and it erroneously reversed the well-reasoned order of acquittal passed by trial Court. Relying upon a catena of decisions of this Court including in the cases of Chandrappa v. State of Karnataka1, Perla Somasekhara Reddy and Others v. State of A.P.2, State of Rajasthan v. Shera Ram3, Shyam Babu v. State of Uttar Pradesh4, Murugesan