IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR. JUSTICE B.A. PATIL AND THE HON’BLE MR.JUSTICE R. DEVDAS CRIMINAL APPEAL NO.115/2016 BETWEEN:
Karibasappa S/o Basavarajappa Aged about 33 years R/o Yaragunte Camp, Karur Road, Davanagere-577 001.
… Appellant (By Sri D. Nagaraja Reddy, Advocate) AND:
State of Karnataka by Gandhinagara Police, Davanagere, Davanagere-577 001.
Represented by State Public Prosecutor High Court Building, Bengaluru-560 001.
… Respondent (By Sri Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of the Cr.P.C praying to set aside the judgment and order of conviction dated 06.08.2014 passed by the I Addl. District and Sessions Judge, Davanagere in S.C.No.83/2012 convicting the appellant/accused for the offences punishable under Sections 498-A and 302 of Indian Penal Code.
This Criminal Appeal coming on for hearing this day, B.A.Patil J., delivered the following:-
J U D G M E N T The present appeal is filed by the accused challenging the judgment and order of conviction and sentence passed by the I Additional District and Sessions Judge, Davanagere in SC.No.83/2012 dated 6/12.8.2014.
2. I have heard Sri D.Nagaraja Reddy, learned counsel appearing for the appellant-accused and Sri Vijayakumar Majage, learned Additional SPP for the respondent-State.
3. Case of the prosecution in brief is that accused got married Shailaja, the sister of the deceased. After some time, Shailaja committed suicide by leaving two children and thereafter Lakshmi, the sister of the deceased Shailaja was given in marriage to the accused and she gave birth to a female child. Thereafter, the accused-appellant started ill-treating and harassing Lakshmi by suspecting her fidelity and subjected her to both mental and physical cruelty and also used to assault her. In that light, on 9.2.2012 at about 8.00 p.m. when the deceased Lakshmi called accused for meals, he picked up quarrel and abused her in filthy language by saying that he does not want any meals and she can provide the same to her male friend (boyfriend). In that connection, being fed up by the ill-treatment and harassment, the deceased Lakshmi herself poured kerosene on her body and at that time, the appellant-accused with an intention to take away her life, set fire on her with a matchstick. After hearing her hue and cry, the neighbourers came and extinguished the fire and immediately, she was shifted to CG Hospital, Davanagere. When she was under treatment, her dying declaration was recorded by the Tahsildar and a case has been registered. On 16.2.2012 at about 10.00 p.m., injured Lakshmi succumbed to the burn injures. After completion of investigation, the charge sheet has been filed.
4. After filing of the charge sheet, the learned Magistrate took cognizance and after following the procedure under Section 209 of Cr.P.C., the case was committed to the Sessions Court. The Sessions Court took cognizance and secured the presence of the accused who was in judicial custody. After hearing the learned PP and the learned counsel for the accused, the charge was framed read over and explained to the accused, who pleaded not guilty and claimed to be tried and as such the trial was fixed.
5. In order to prove its cases, the prosecution in all has examined 23 witnesses and got marked 25 Exhibits and 3 Material Objects. After closure of the prosecution case the accused was examined by putting incriminating material as against him.
Accused has not led any evidence. However, during the course of cross-examination, Ex.D1 was got marked on his behalf. After hearing the learned counsel for the parties, the trial Court came to the conclusion that the prosecution has proved its case beyond reasonable doubt and convicted the accused for the offences punishable under Sections 498A and 302 of IPC and sentenced him to undergo RI for a period of two years and to pay a fine of Rs.10,000/- in default of payment of the fine amount, to undergo SI for a period of one year for the offence punishable under Section 498A of IPC. In so far as the offence punishable under Section 302 of IPC is concerned, the trial Court sentenced the accused to undergo imprisonment for life, till his last breath and to pay a fine of Rs.25,000/-, in default of payment of the fine amount, to undergo RI for two years. Challenging the legality and correctness of the said judgment and order, the accused is before this Court.
6. The main grounds urged by the learned counsel for the accused-appellant are that the impugned judgment and order of conviction and sentence is perverse and not sustainable in law. The trial Court has not considered the records which clearly go to show that the deceased Lakshmi sustained burn injuries due to stove burst and the said aspect has not been accepted by the trial Court. He further submitted that the alleged incident has taken place on 9.2.2012. Though the injured was conscious and in a fit state of mind, no complaint has been registered. Even all the relatives who were present have also not given any complaint. He further submitted that though the requisition has been sent by the police on 10.2.2012, the dying declaration of the deceased was recorded only on 14.2.2012. The Tahsildar who came to be examined as PW.22 has deposed that the said dying declaration has been recorded on 15.2.2012, but the endorsement of the doctor and other material is contrary to his evidence. Under such circumstances, the trial Court ought to have discarded the evidence and ought to have acquitted the accused-appellant. He further submitted that there is no consistent evidence and there are so many contradictions and omissions in the evidence of the prosecution witnesses, which has not been properly considered and appreciated by the trial Court. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment and order passed by the trial Court.
7. Per contra, the learned Additional SPP vehemently argued and submitted that there is ample material to show that the accused-appellant used to ill-treat and harass the deceased Lakshmi by suspecting her fidelity. On the date of the alleged incident, when the deceased herself poured kerosene on her body, the accused with an intention to eliminate her, lit the fire and as a result of the same, she sustained burn injuries and died. He further submitted that the deceased has given the dying declaration as per Ex.P22, wherein she has clearly stated about the ill-treatment, harassment and the overt acts of the accused- appellant. There is corroboration of the evidence of other witnesses and it is also supported by the medical evidence. The accused-appellant has not made out any good grounds to entertain the appeal. Hence, he prays to dismiss the appeal.
8. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for both parties and perused the records, including the impugned judgment and order.
9. Before considering the submissions, it is relevant to glance in brief the evidence which has been led by the prosecution. PW.1 is the witness who was residing on the backside of the house of the accused, so also PW.2. They are the panch witnesses to the spot mahazar at Ex.P1. They have not supported the case of the prosecution and they have been treated as hostile.
PW.3 is the pancha to inquest mahazar at Ex.P4, so also PW.4.
PW.5 is uncle of the deceased. PW.6 is the relative of the deceased. They have deposed about the ill-treatment and harassment caused by the accused by suspecting the fidelity of the deceased. They also advised the accused suitably and to lead happy life with the deceased.
PWs.7, 8 and 9 are the neighbourers who have not supported the case of the prosecution and have been treated as hostile.
PW.10 is the driver of autorickshaw who carried the injured to the CG Hospital at Davanagere.
PW.11 is a witness who heard the galata in the house of the accused.
PW.12 is the witness who has not supported the case of the prosecution.
PW.13 is the son of the accused who was born to his first wife. He speaks about the quarrel between the accused and the deceased and accused suspecting the fidelity of the second wife.
PW.14 is the ASI who has sent a requisition to the Tahsildar to record the statement of the deceased and registered the case.
PW.15 is the Police Constable who carried the FIR to the jurisdictional Court.
PW.16 is the doctor who got admitted the injured to the hospital and given first aid.
PW.17 is the doctor who conducted autopsy over the dead body.
PW.18 is the PSI who registered the case.
PW.19 is the Junior Engineer who prepared the sketch of scene of the offence.
PW.20 was a Revenue Officer who has issued the details of the property wherein the incident has taken place.
PW.21 is the doctor who certified about the fitness of the injured to give the dying declaration as per Ex.P22.
PW.22 is the Tahsildar who recorded the dying declaration as per Ex.P22.
PW.23 is the Investigating Officer who investigated the case and filed the charge sheet.
10. Though the learned counsel for the appellant-accused has raised several contentions, as could be seen from the evidence and the records in so far as the offence punishable under Section 498A is concerned, there is ample material to show that before he got married with the deceased Lakshmi, even he used to ill-treat and harass the first wife deceased Shailaja, who committed suicide. Thereafter the accused got married with the deceased Lakshmi. After she gave birth to a female child, accused started to ill-treat and harass the deceased Lakshmi by suspecting chastity and even he used to tell her that the said child was not born to him. Even the evidence of PWs.5, 6, 7, 13, clearly goes to show that the accused-appellant was ill-treating and harassing the deceased by suspecting her fidelity. During the course of their cross-examination, nothing has been elicited so as to discard their evidence. Even during the course of arguments, the said fact has also not been seriously disputed by the learned counsel for the appellant-accused.
11. Keeping in view the aforesaid proved facts, let us consider whether the prosecution has proved the fact that because of physical and mental cruelty of the accused, when the deceased Lakshmi herself poured kerosene on her body, the accused with an intention to take away her life lit fire with a matchstick. On close reading of the dying declaration at Ex.P22 recorded by PW.22-Tahsildar, wherein the deceased has clearly stated about the ill-treatment and harassment caused to her by the accused. The said dying declaration is in the format of question and answer. She has also stated about the ill-treatment and harassment said to have been committed by the accused by suspecting her fidelity. On the date of the incident, being fed up, as the accused always used to tell that she should die, she herself poured kerosene on her body and immediately thereafter, the accused by saying that she should die, lit the fire with a match stick, thereby she has stated that the accused-appellant is the cause for the said burn injuries. In order to substantiate the said fact, the prosecution has examined PW.22-Tahsildar, who recorded the dying declaration as per EX.P22. He has deposed that after receiving the requisition, he went to the hospital to record the statement of the injured, but as she was not in a position to speak, by informing the same to the doctor, he came back to the office. On 14.2.2012, as PW.22 received the information that the injured was in a fit state of mind and was talking, he went to the hospital at about 1.00 p.m. and contacted the doctor on duty and ascertained the fitness of the injured and thereafter putting the questions to the injured, he confirmed the same and he has recorded the dying declaration as per Ex.P22. Though during the course of arguments, it is contended that the endorsement in Ex.P23 shows that it was recorded on 15.2.2012, as per Ex.P22, the dying declaration it was recorded on 14.2.2012. PW.22 has also stated the said aspect. In this behalf there is a variation in recording of the dying declaration and as such the same is not acceptable and reliable. We have carefully and cautiously gone through Ex.P23, endorsement of the Medical Officer, wherein the date is mentioned as 15.2.2012. But as could be seen from EX.P22, it has been recorded on 14.2.2012. In this behalf, there are no serious contradictions so as to discard Ex.P22. Even as could be seen from the cross- examination, the recording of dying declaration has not been seriously disputed, so also the fitness of the deceased.
12. It is well settled proposition of law that certification of the doctor about the fitness of the injured to make the statement is a rule of caution and the ultimate test is whether the dying declaration can be held to be truthful and voluntary. Keeping in view the said proposition of law, if Ex.P22 and other records are perused, they clearly satisfy the test to the effect that the said declaration given by the deceased is truthful and voluntary, that too when the ill-treatment and harassment caused by the accused-appellant is also corroborated and it has not been seriously disputed.
13. It is the specific contention of the learned counsel for the appellant-accused that the medical records go to show that the deceased sustained burn injuries due to stove burst. As per the records, the presence of the accused immediately after the incident was also established and when Ex.P1-spot mahazar has been drawn, no such material has been recovered and seized so as to substantiate the fact that there was a stove burst. If really, the deceased has sustained the burn injuries due to stove burst as contended, definitely the said material would have been seized and recovered at that time. The deceased has categorically stated in her dying declaration that being fed up with the ill-treatment and harassment caused by the accused, she herself poured kerosene on her body and at that time, the accused with an intention to kill her, lit the fire. The said fact also substantiates with the evidence of the other witnesses who came to the spot immediately after the alleged incident and extinguished the fire and shifted the deceased to the hospital. No doubt in some medical records, immediately when the injured was taken to the hospital, an entry has been made and at that time, the injured has stated that because of the stove burst she sustained the burn injuries. As could be seen from the evidence of the doctor who got admitted the injured in the hospital, she has deposed in the cross-examination that the accused-appellant was present. When he was present at the time of admission of the injured to the hospital there is every possibility of he giving such information. Even the evidence of PW.22- Tahsildar discloses that injured was not able to speak. Under such circumstances, she giving such statement before the doctor does not arise. Usually person who comes along with injured patient gives the information. In the absence of any material in Ex.P1, the said contention is not acceptable. Except stray entry in Ex.P16, there is no other corroborative evidence to substantiate the contention taken up by the appellant-accused.
14. It is well settled principle of law that when the dying declaration is trustworthy and reliable, then under such circumstances, solely on the basis of the such dying declaration the accused can be convicted. If all the circumstances together are looked into, they clearly go to show that the deceased died due to burn injuries that too when herself poured kerosene being fed up with the ill- treatment and harassment of the accused, and at that time, the accused with an intention to take away her life, lit fire. Taking into consideration the entire evidence and the material on record, we are of the clear opinion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and no other view is possible by analyzing the said evidence.
15. We have carefully and cautiously gone through the impugned judgment and order passed by the trial Court. We find no perversity or illegality committed by the trial Court while passing the impugned judgment. However, the trial Court has erred in sentencing the accused to undergo imprisonment for life till his last breath. When the deceased herself has poured kerosene on her body and at that time, the accused-appellant lit the fire, we find no heinousness or any other brutal act committed by the accused and it is not a rarest of the rare case, so as to impose the sentence of imprisonment till his last breath. There are no exterior circumstances to impose such sentence. In that light, we modify the sentence passed by the trial Court. Hence, we pass the following order:-
Appeal is dismissed.
The judgment and order of conviction and sentence passed by the I Additional District and Sessions Judge, Davanagere, in SC.No.83/2012 dated 6/12.8.2014 convicting the accused-appellant for the offences punishable under Sections 498A and 302 of IPC is confirmed.
In so far as sentence is concerned, it is modified to the following extent:-
The accused-appellant shall undergo imprisonment for life and to pay a fine of Rs.25,000/-, and in default of payment of fine amount, he shall undergo RI for a period of two years for the offence punishable under Section 302 of IPC.
The accused-appellant is also entitled to the benefit under Section 428 of Cr.P.C.
Sd/- JUDGE Sd/- JUDGE *ck/-