IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO AND THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD CRIMINAL APPEAL No.1312/2015 BETWEEN:
KOTRESHI @ KOTRESHAPPA S/O NINGAMMA AGED 43 YEARS RESIDING AT MATHIHALLI VILLAGE HARAPPANAHALLI TALUK DAVANAGERE- 583 131.
….APPELLANT (BY SRI VIKAS M, FOR SRI. ARUNA SHYAM.M, ADVOCATE) AND:
THE STATE OF KARNATAKA REPRESENTED BY CHIGATERI POLICE REP. SPP, HIGH COURT OF KARNATAKA BANGALORE – 560 001.
…RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED:04.02.2015 AND ORDER OF SENTENCE DATED 24.02.2015 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, IN S.C.No.118/2012-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 498(A) AND 302 OF IPC SENTENCING HIM TO UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR AND TO PAY FINE OF Rs.1,000/- IN DEFAULT OF PAYMENT OF FINE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 2 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 498-A OF IPC ALSO SENTENCED HIM TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF Rs.5,000/- IN DEFAULT OF PAYMENT OF FINE SHALL UNDERGO SIMPLE IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS DAY N.K.SUDHINDRARAO J., DELIVERED THE FOLLOWING JUDGMENT The appeal by the accused is directed against the judgment of conviction dated 4.2.2015 and order of sentence dated 24.2.2015 passed by the First Additional District and Sessions Judge, Davanagere, in S.C.No.118/2012 wherein, the accused was convicted for the offences punishable under Section 498A and 302 of IPC and was sentenced him to undergo simple imprisonment for one year for the offence punishable under Section 498A of IPC and to pay fine of Rs.1,000/-
and in default of payment of fine amount, to undergo simple imprisonment for two months and also sentenced him to undergo imprisonment for life for the offence punishable under Section 302 of IPC and to fine of Rs.5,000/- and in default of payment of fine amount, to under go simple imprisonment for two years.
2. To avoid confusion and overlapping, the parties hereinafter are referred to as per the rankings as held by them before the Sessions Court.
3. The substance of the case of the prosecution against the accused Kotreshi @ Kotreshappa is that, accused and his wife Parvathamma were residing at Mattihalli village, Harappanahalli Taluk. Accused was harassing Parvathamma and ill treating her. He was also suspecting her marital loyalty and subjected her to cruelty as well. On 27.10.2011 at about 10.00 a.m. accused picked up quarrel with Parvathamma suspecting her marital loyalty. She was fed up over the torture of her husband Kotreshi and unable to bear his mental trouble and physical torture, decided to commit suicide and accordingly doused kerosene on her body and the accused (her husband) with a definite intention of causing her death set her ablaze. She sustained severe burn injuries all over the body and succumbed to them on 31.10.2011 at about 7.15 p.m. in the C.G hospital, Davanagere. Thus, after the incident, she was alive for a little more than four days.
4. The statement of Parvathamma is considered as complaint as she was admitted to the hospital and the Doctor said to have sent a memo to the jurisdictional police and the police recorded the statement of Parvathamma at about 1.45 p.m. on 27.10.2011 at the hospital. Thereafter, on returning to the police station, M. Kalari, Head Constable registered a case in Crime No.61/2011 for the offence punishable under Sections 498A and 307 IPC. Thus, on the date of incident on the basis of the complaint apart from offence under Section 498A IPC, it was Section 307 that was invoked against the accused. However, by virtue of death of Parvathamma on 31.10.2011, the provision of law came to be invoked under Section 302 of IPC that provides for murder and accordingly, chargesheet is filed after completion of the investigation against accused for the offences punishable under Sections 498-A and 302 of IPC and on receiving, the learned Magistrate committed the case to the Sessions Court, Davanagere. Thereafter, the learned Sessions Judge framed charges against the accused for the said offences who pleaded not guilty and came to be tried.
5. The prosecution in order to establish the case against the accused, in all, examined 30 witnesses as PWs 1 to 30, got marked documents as per Exs.P1 to P30 and material objects at MOs 1 to 3.
6. The learned Sessions Judge, after considering the oral and documentary evidence and the submissions of both sides, found the accused guilty for having committed offences punishable under Section 498A and 302 of IPC, convicted him and sentenced him to undergo imprisonment as mentioned above. The same is challenged by the accused in this appeal.
7. Mr.Vikas.M, learned counsel for the appellant/accused would submit that the complaint was engineered due to the pressure of complainant’s father and the evidence were planted to project the accused as guilty. He would submit that the accused never committed offences against his wife and was discharging his duties as a dutiful husband and father. The complaint itself state that the accused did not want to see the death of the victim Parvathamma. He would further submit that the direct relatives including son and daughter, brother and mother of the victim have not supported the case of the prosecution. He would further submit that in the initial stages itself lapse and bias of the prosecution stands exposed through Exs.P2 and P15 which are claimed as dying declarations. Thus, the prosecution itself is doubtful about its stand.
8. Sri. Vijayakumar Majage, learned Additional SPP for State would submit that aggrieved/injured is the best witness. In this case, the victim- deceased Parvathamma being the aggrieved can never be suspected of lodging false complaint. The Police officials, Doctors and the Executive Magistrate are all independent and official witnesses. They did not carry any animosity against the accused. They have just performed their official duties. In this connection, they cannot be attributed of negligence or biased.
9. The dying declaration, Ex.P2 has come into existence at earliest point of time and the circumstances are not doubtful. The Doctor was present at the time of recording statement of the victim and was satisfied about her mental status to give statement. Under these circumstances, the substance that becomes important over the hyper technical slips. In the light of the above circumstances, offences charged against the accused after hearing him is for the offences punishable under Section 498A and 302 IPC.
10. As the offence includes the one punishable under Section 302 IPC, it is incumbent on the part of the prosecution to establish that death of Parvathamma on 31.10.2011 in CG Hospital Davanagere was not a natural one, but a homicidal. In this connection, the evidence available is, the evidence of Doctor, which discloses that she was admitted to hospital with burn injuries and it was to the extent of 90% all over the body. She under went medical treatment and could not recover. On the date of admission, she has given her statement regarding the cause of injuries as “they were inflicted by her husband”. The postmortem report, Ex.P29, reflects that “she had ante mortem injuries on her body in the form of 90% burn injuries and she died due to septicemia because of burn injuries from deep to superficial”. Thus, the complaint, Postmortem report, evidence of the Doctor, dying declarations given by the complainant after lodging the complaint project that death was unnatural. But regarding the homicidal nature or otherwise of the death it requires to be concluded after perusing all the available evidence.
11. Out of 30 witnesses examined by the prosecution, the material witnesses according to the prosecution are: PW5- Manjappa who is said to be a circumstantial witness. He deposed in his evidence on 21.7.2014 that, having gone to the house of the accused wherein accused and deceased were residing, saw Parvathamma and accused have sustained burn injuries and they were shifted to hospital and to the rest, he turns hostile.
12. PW9- Nirmala, is the daughter of accused and deceased Parvathamma. As on the date of evidence i.e. on 22.7.2014, she is said to be 19 years. However, at the time of incident, she is stated to be aged 16 years. She is cited as circumstantial witness who came home, by that time, the incident had happened and her mother told her about the incident and the act being committed by husband. But she turns hostile and negated the suggestion made by the Prosecution in the said connection.
13. PW13-Dr.Subhashchandra S, Senior Specialist, CG Hospital, Davanagere, has deposed that deceased sustained burn injuries by her husband and issued memo as per Ex.P13.
14. PW14-Dr.Ravi M.C., Medical Officer, Government Hospital, Davanagere, has certified about the sound condition of the victim to give statement as per Ex.P2.
15. PW-20 Devendrappa is the Head Constable.
On 27.10.2011 he has recorded the statement of Parvathamma when she was hospitalized. His evidence is that, on the relevant day, he went to the hospital on receiving the medical memo from the Medical Officer and recorded the statement of injured as per Ex.P2. However, case was registered by PW23-M. Kalari, Head constable against the accused for the offences punishable under Section 498A and 307 of IPC.
16. PW22- M. Nagendrappa, is said to have carried the statement, Ex.P2 to the police station from the hospital. The learned trial Judge found Ex.P2- statement of complainant and the subsequent declaration prove the guilt of the accused and convicted him for the offences mentioned above.
17. PW26- G.Mahadevappa, ASI at the relevant time and recorded the dying declaration, Ex.P2 and he dictated to PW20-Devendrappa.
18. PW28-Dr.Venkatesh Murthy, Chief Officer, Bangalore and working as Taluk Executive Magistrate, Harapanahalli at the relevant time and recorded the dying declaration of victim Parvathamma as per Ex.P15.
19. PW30-Dr.Ghanathe Madhukar, Medical Offiscer, CG Hospital, Davanagere, who has conducted postmortem on the dead body of the victim and issued report as per Ex.P29.
20. Insofar as the evidence of other witnesses are concerned, they are formal witnesses.
21. It is necessary to place on record that there are two dying declarations/ statements as per Ex.P2 and Ex.P15 by the complainant/victim Parvathamma. The first one, Ex.P2 came into existence according to the prosecution when the PW26 went to hospital on 27.10.2011 in pursuance of the intimation and recoded the statement of victim. It is recorded like any other omni bus complaint and the person who recorded the same is PW26-G. Mahadevappa, ASI and the person who wrote the same is PW20-Devendrappa to the dictation of ASI PW26.
22. The substance of the complaint is that, the victim/complainant Parvathamma, aged 30 years resident of Mathihalli village was residing along with her husband. Their marriage was performed 18 years back to the date of complaint. One male and two female children were born to her of her husband. Her husband was addicted to alcohol and was consuming the same daily and in the intoxicated mood he was abusing the complainant in filthy language and also was manhandling and assaulting her. On the date of the incident, at about 10.00 a.m. he came home as usual abused the complainant and advanced to beat her, she got frightened, doused herself with kerosene. Her husband intentionally told her to die and lit fire to her clothes, she screamed, her husband hugged her, he also suffered injuries to his legs and face and different parts of the body.
23. Spouses sustained burn injuries. They were taken in 108 ambulance to the Government Hospital, Harapanahalli. This complaint was registered as stated above. It is necessary to focus on what she has revealed in Ex.P2 which came to be contained substantive evidence by virtue of death of Parvathamma. However, the admitted version of the prosecution is that, wife/victim was being tortured and on the date of incident, accused came home and started abusing her in filthy language and also advanced to hit her. But being fed up of the situation and of her husband she doused herself with kerosene. Incidentally, in the further circumstances under Ex.P15, she tells that she wanted to threaten her husband. However, the said narration is not there in the complaint. Further, she tells that her husband lighted fire in order to set her ablaze and when she started screaming because of the burns, he hugged her. Thus it becomes difficult to see conciliation between the complaint and the case of the prosecution. The spouses said to have sustained injuries. Insofar as accused is concerned, he was treated and Ex.P14 is his wound certificate when he was examined on 21.11.2011 at about 12 p.m. at Governmental hospital. Thus, the intentional act of the accused attacking his wife gets diluted substantially on anlysing from the version of the complainant that husband hugged her. Thus, it becomes difficult to find reconciliation between the claim of the prosecution and Ex.P2.
24. Further, the date of death of Parvathamma is 31.10.2011. Incidentally, on the very day after registering the case, another statement is said to have been recorded by the police and the same is marked as Ex.P15. It is stated that the Executive Magistrate was requisitioned to record the statement of the victim Parvathamma. The statement is said to have been recorded in the presence of PW14, Dr. Ravi who certifies that on 27.10.2011, he examined Parvathamma at 2.00 p.m. and she was conscious and in a position to talk and had mental fitness to give statement. This is marked as Ex.P15. Her statement is recorded by Tahsildar and Taluk Executive Magistrate, Dr. Venkatesh Murthy. The beginning portion is commenced with name and address of the victim. Further portion is regarding the questions and answers. She answered to the questions regarding her name, husband’s name her age, her address, children, their names, her parents, duration of the marriage, her problem, where she was staying who brought her and how she suffered injuries.
25. To the question as to how the injuries are sustained by her, her answer is, it was at about 9.00 a.m. and to the next question as to how did it happened, she tells that her husband poured kerosene and lit fire. To the next question why he lit fire to tell in detail, her answer is, for the past three years, her husband used to consume alcohol and trouble her. On the date of incident, he quarreled with her and in order to threaten him, she poured herself with some kerosene and her husband poured the entire 1 ½ liters of kerosene on her body, lit fire and ran away and the incident happened at Mathehalli and no others were present and the reason for the act of her husband is that he used to come intoxicated and creating galata. Further, he was suspecting marital loyalty of the complainant. He used to attribute illicit relationship any male member with whom the victim spoke. Incidentally, the last question is, the person taking the answer asks her as to whether her husband was a sole reason for her position, she answers in affirmative and tells that he poured kerosene and set her ablaze.
26. It is this document that is being certified by Doctor PW14 that she was in a fit and proper condition to give evidence. If such were the case, it adds to the confusion already created and to that effect, in the statement earlier recorded on the same day as per Ex.P2, she tells that she doused herself with kerosene in order to threaten her husband. But he came and lit fire to her clothes because of which she was in flames and the husband hugged her. Both suffered injuries and were taken to hospital. But the subsequent statement on the same day reveals that the husband lit fire and ran away. This discrepancy is not an incidental one, but a material one. This discrepancy is not answered by the prosecution to justify it.
27. It is further necessary to observe that the accused was also injured and the doctor who examined him state that he suffered 60% burn injuries. Under these circumstances, when he was brought to hospital and when the victim gave statement as per Ex.P.2, the accused who is her husband was very much available to the Police to apprehend him. It seems to have not been done. A perusal of the final report indicates that the accused was arrested on 18.8.2012. Insofar as the details of the accused with reference to his arrest, it is stated that the name of the accused is Kotreshi and he is coolie by occupation.
28. Regarding the date of arrest, it is left blank.
The date of release on bail is also left blank. The date of sending him to court also is left blank. It is stated in the judgment at Page-15 that the accused appeared before the court in response to the summons and is in judicial custody. The date of arrest is 18.8.2012. A perusal of the order sheet indicates that the accused was produced on NBW before the court from where he was remanded to judicial custody. The question is not of arrest of the accused on 18.8.2012 pursuant to the NBW already issued against him, but the Investigating Officer owes responsibility to answer as to what he did when the accused was admitted to hospital in the same day with 60% burn injuries and got out of the hospital immediately upon examination, more particularly, when his limbs were substantially injured and bore burn injuries. When the statement of the deceased was taken on 27.10.2011, the prosecution does not tell the reason or the necessity for recording another statement on the same day in the form of question and answer by the Executive Magistrate who was requested for the said purpose. Thus, there are material discrepancies between Ex.P.2 and Ex.P.15 though they are claimed by the prosecution for the same purpose of disclosing the cause for death of the victim. The doctor has certified as per Ex.P.15 that the injured was fit to give her statement. Though it is in the form of question and answers, it is omnibus recording with mechanical approach. Moreover, nothing is forthcoming from the prosecution about Exhibit- P2 which is also the statement that was recorded by one Devendrappa, Police Head Constable, PW.20. It is not stated as to why and what necessitated for the next statement. The commission of offence need not be exclusively established with reference to the eye witness account.
29. The evidence of the daughter of the accused, PW.9 Nirmala is that when she returned from work, her mother had sustained injuries and her father also had sustained injuries while he attempted to save Parvathamma. She does not know the reason for the death of her mother. She further states that her father never threatened or ill-treated her mother. She was treated hostile.
30. PW.10 Lankesh is the son of the accused and the deceased, aged 18 years and his version is that he returned from coolie work and saw her mother bearing burn injuries and neighbours were telling that her mother sustained burn injuries when she was cooking food. He endorses his sister’s version that the accused was not ill-treating her mother. This witness was also treated hostile.
31. PW.11 Nagamma, the mother of Parvathamma, who was cited as a witness to the circumstances, gives a go bye to the prosecution case by turning hostile. PW.12 - The elder sister of the deceased i.e., Dadaramma also cited as a circumstantial witness who did not support the prosecution case.
32. PW.16 Hanumakka is the elder sister of the Parvathamma. She was also cited as circumstantial witness but turns hostile to the prosecution case and does not cite any incriminating version against the accused.
33. PW1-Bettegowda and PW.2 Manjappa are the panch witness to spot mahazar - Ex.P.1.
34. PW.4 Hanumanthappa is the bother of deceased Parvathamma. He has complements to the accused. According to his evidence, his sister and accused were very cordial and 2½ years back, his sister died because she sustained burn injuries while cooking food.
35. PW.15 – Vibhu Swamy Javali is the Assistant Engineer who has drawn the sketch of place of occurrence Ex.P.16. PW16-Hanumakka, is the sister of victim who turns hostile. PW.17 – Gonibasappa and PW.18 Hanumanthappa are witnesses to inquest mahazar Ex.P18.
36. PW.19- Mariyappa circumstantial witness and PW.20 is the scribe of Ex.P.2. PW.21 Chandrashekar is the constable who has received the death memo 37. PW.23 is the Constable who registered FIR as per Ex.P21. PW.24 C.Manjappa, an FSL Officer. PW.25Shambanna Byahatti is the Panchayath Development Officer who speak about issuing of Ex.
P.24. PW.26 G.Mahadevappa, ASI recorded Ex.P.2.
38. PW.27 Basavaraj, Investigating officer who was working as Jurisdictional Circle Inspector of Police at the time of the incident and recorded the statement of witnesses, received report from FSIL and after competition of investigation filed chargesheet against accused..
39. PW.28 Dr. Venkatesh Murthy V. is the Executive Magistrate who recorded statement as per Ex.P.15 on 27.10.2011. PW.29 D.B. Ravichandra is PSI who prepared the sketch - Ex.P.30. PW.30 – Dr. Ghanathe Madhukar is the doctor who conducted the postmortem.
40. Thus, in the overall facts and circumstances, it is seen that the death of Parvathamma does not fall within the category of homicidal death. However, the version of the complainant who is also the victim and the deceased as well indicates that she had doused herself with kerosene and the evidence of her children indicate that the injury sustained by her are established to be accidental and the cause of death to be fire accident. Under these circumstances, the learned Trial Judge held that the death of Parvathamma on 31.10.2011 at Government Hospital, Davanagere as murder.
41. In the context and circumstances of the case, unnatural death of the victim at the hospital at Davanagere happened. The claim of the prosecution is that the commission of the offence by the accused is proved beyond reasonable doubt. Further that the incident happened at home, victim sustained burn injuries. Prosecution claims that the complaint became dying declaration by virtue of death of the victim because of the injuries. Her statement is said to have taken as Ex.P15 at the hospital. But the version differ regarding dousing kerosene and one setting fire. In one statement, it is stated that both dousing kerosene and setting fire was by the accused. However in the other Ex.P2, it is stated she doused herself kerosene as she was fed up, but accused set fire.
42. There is no explanation as to the nature of medicines that were administered or their sedative effect. She was admitted to hospital by her husband and he had also sustained injuries, police were in know of it. Conflicting version are spoken by the victim regarding the incident. Her daughter who is said to be the circumstantial witness does not support the prosecution case. The inflicting of burn injuries by accused is not proved beyond reasonable doubt.
43. The circumstantial material evidence on record suggest that it was never a homicidal death committed by the accused and we find that the learned Trial Judge erred in finding the accused guilty of the offence punishable under Sections 498A and 302 IPC. Thus, the judgment convicting the accused and the order pronouncing the sentence is liable to be set aside and the accused is entitled to be acquitted.
44. In the result, the appeal is allowed.
The judgment convicting the accused-appellant and the order sentencing him to undergo simple imprisonment for one year for the offence punishable under section 498A of the Indian Penal Code and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for two months and further to undergo imprisonment for life for the offence punishable under section 302 of the Indian Penal Code and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for two year, by the I Additional District and Sessions Judge, Davanagere in S.C.No.118/2012 dated 24.02.2015 are set aside.
The accused shall be set at liberty forthwith, in case he is not required in any other case.
The fine amount, if any, in deposit may be refunded to the accused-appellant.
The Registry is directed to send a copy of the judgment to the Trial Court.
The Registry is also directed to communicate the said order to the concerned Jail authorities.
Sd/- JUDGE Sd/- JUDGE tsn*/nv