IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.1997 OF 2017 BETWEEN:
M. KRISHNA S/O. LATE MUNIRAJU, AGED ABOUT 33 YEARS, RESIDING AT MUNIYAPPA COMPOUND, SUNDARANAGAR, POORNAPURA, GOKUL POST, BENGALURU.
... APPELLANT AND:
(BY SRI M. VIKAS AND SRI DHANANJAY KUMAR, ADVs.) STATE OF KARNATAKA BY JALAHALLI POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE.
... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL S.P.P.) * * * 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 31-10-2017 PASSED BY THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-64), BENGALURU, IN S.C. NO.551 OF 2012 CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF THE I.P.C.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
J U D G M E N T The appellant is the sole accused before the LXIII Additional City Civil and Sessions Judge, Bengaluru, in Sessions Case No. 551 of 2012, who was convicted for the offence punishable under Section 302 of the Indian Penal Code (for short, ‘the I.P.C.’) vide judgment dated 31-10-2017 and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-. Out of the fine amount, Rs.40,000/- is awarded as compensation to be payable to P.W.1-Manjula. Being aggrieved by the judgment of conviction and order of sentence, the appellant is before this Court.
2. We have heard the arguments of the learned counsel for the appellant and also the learned Additional State Public Prosecutor for the respondent-State. We have carefully looked into the material available on record.
3. Learned counsel for the appellant has submitted before this Court that, it is a clear case of suicide by the deceased, as she was married to the accused much against the wishes of her family members. Therefore, she was frustrated in life and committed suicide on 18-12-2011. Though she has committed suicide at the instance of her family members, the parents of the deceased have concocted a case against the accused. Police have laid a charge-sheet for the offence punishable under section 302 of the I.P.C. Learned counsel also contended that, even if the entire case of the prosecution is accepted, the offence would not fall under Section 302 of the I.P.C., but it may fall under Section 304 of the I.P.C. Therefore, the learned counsel submitted that, the sentence passed by the trial Court may be modified.
4. Per contra, the learned Additional State Public Prosecutor has submitted that, there is strong evidence of kith and kins of the deceased coupled with dying declaration, in which, the deceased has categorically stated about the overt act of the accused and also the conduct of the accused throughout, after their marriage. It is further submitted that, she sustained burn injuries and gave dying declaration before the Police and died after seven days of the incident. There was strong reason for the accused to commit such an offence that, he was angry with his wife on the ground that his brother, mother and sister were sent out of his house by the deceased. There was strong motive and intention to commit such an offence. Therefore, the trial Court has rightly convicted and sentenced the accused for the offence punishable under Section 302 of the I.P.C. He further submitted that, there is no room to interfere with the judgment of conviction and order of sentence passed by the trial Court. Hence, he pleaded for dismissal of the appeal.
5. The accused in connection with this case was arrested on 20-12-2011 and since then, he has been in judicial custody. The brief facts of the case is required to be understood by this Court before adverting to the material evidence on record.
6. It is the case of the prosecution that, on 13-6-2009, the accused and the deceased got married in Shanimahatma Temple at Krishnananda Nagar and thereafter, they started living together at Krishnananda Nagar, Bengaluru. The accused was doing dry cleaning work in a shop, by name, Dhanalakshmi Dry Cleaners. The deceased was also doing some household work. It is also further case of the prosecution that, the accused was addicted to alcohol and even for petty differences, he used to quarrel with his wife and assault her. Deceased was tolerating all these things and was advising him to leave the bad habit of consuming alcohol, so that they can live together happily.
7. In this background, it is alleged that, some days prior to 18-12-2011, brother, sister and mother of the accused came to the house of the accused and started living with him and the deceased. But they abruptly left the house of the accused on 18-12-2011 for some reasons best known to them and also on the ground that, the said house is very small for their dwelling. Accused came to the house at about 8.30 a.m. on that day and he came to know that his brother, sister and mother had left the house. He enquired with his wife and suspected that, the deceased would be the root cause for his brother, sister and mother to leave the house. He started quarreling with her and suddenly, he took up a pump stove, poured kerosene on her and lit fire. Due to which, she sustained some injuries, but with the help of a rug, she herself tried to extinguish the fire. Thereafter, she went to the house of P.W.1, her sister, and informed the same and thereafter, she was admitted to Victoria Hospital, wherein she succumbed to burn injuries on 26-12-2011. The Police have recorded the statement of the injured on 19-12-2011 as per Ex.P.12, which is subsequently treated as dying declaration. On the basis of which, the Police have registered a case in Crime No.225 of 2011 for the offence punishable under Section 307 of the I.P.C. and started investigating the matter.
8. After the death of the deceased, on 26-12-2011, the case was converted for the offence punishable under Section 302 of the I.P.C. The Police have completed the investigation and found the accused as the perpetrator of the crime and hence, they laid a charge-sheet against him. Accused was arrested on 20-12-2011. The trial Court, after securing the presence of the accused, framed the charges against him for the offence punishable under Section 302 of the I.P.C. and put him on trial.
9. The prosecution in order to bring home the guilt of the accused, examined as many as sixteen witnesses as P.Ws.1 to 16, got marked twenty-three documents as per Exs.P.1 to 23 and three material objects as per M.Os.1 to 3. The accused was examined under Section 313 of the Code of Criminal Procedure and also called upon to enter into defence. The accused neither given any explanation in his statement recorded under Section 313 of the Code of Criminal Procedure statement, nor choose to lead any evidence on his side. The trial Court, after hearing both side, arrived at the conclusion that, the prosecution has proved the case beyond reasonable doubt and passed the impugned judgment.
10. Before adverting to the material evidence on record, we would like to have a cursory look at the evidence of the prosecution.
11. P.W.1-Manjula is the sister and P.W.2- Honnappa is the maternal uncle of the deceased. They have stated about the conduct of the accused and the deceased and marriage between them.
P.Ws.2, 3 and 11 are the inquest pancha witnesses. They also came to know about the incident through the deceased. P.W.11-Shivappa Lambani, Tahsildar, who conducted inquest mahazar on the dead body of the deceased. P.W.3-Ramesh, auto Driver, is a pancha witness to Ex.P.2 under which the Police have seized M.Os.1 to 3, i.e. a stove, burnt chudidar and half burnt match-stick respectively. P.W.4-Hanumantharaju is a relative of the deceased. He visited the hospital and noticed burn injuries on the deceased and present when the Police conducted inquest panchanama as per Ex.P.3. P.W.5-Kumar is the employer of the accused. P.W.6-Nagaraj is the owner of the shed, in which the accused and the deceased were living and P.W.7-Meena is the neighbour of the accused and the deceased, both have not supported the case of the prosecution. P.W.8-Nataraj, Assistant Engineer, has prepared spot sketch as per Ex.P.10. P.W.9-Siddalingappa is the Sub-Inspector of Police, who recorded the dying declaration of the deceased as per Ex.P.12 and registered a case in Crime No.225 of 2011 and discharged F.I.R. to the concerned Court. He also apprehended the accused and recorded the voluntary statement of the accused and conducted mahazar as per Ex.P.2. P.W.10-Sathyanarayana, Sub-Inspector of Police, secured the information about the death of the deceased and informed the Court by sending further intimation as per Ex.P.15 converting the case from the offence under Section 307 of the I.P.C. to Section 302 of the I.P.C. He has also requested the Tahsildar to conduct the inquest over the dead body of the deceased. P.W.12-Dr.C.N. Sumangala has conducted Post- Mortem examination on the dead body of the deceased and issued a Post-Mortem report as per Ex.P.18. She gave the opinion that the deceased died due to septicemia as a result of burn injuries. P.W.13-Muniraju, Police Constable, who transmitted F.I.R. – Ex.P.13 to the jurisdiction Magistrate.
P.W.14-P. Mallesh is the Scientific Officer, who examined M.Os.1 to 3 and gave opinion. P.W.15- Jayaram, a Head Constable, carried M.Os.1 to 3 from the Police Station to the F.S.L. P.W.16-Dr. P. Manjunath, who was present at the time of recording the dying declaration of the deceased and he gave the fitness Certificate of the deceased.
12. Now we would take up the material evidence for appreciation. P.Ws.1 and 2 are none other than the relatives of the deceased. P.W.3 is an auto Driver, who has categorically stated in his statement that on the date of incident, the deceased came to the house of P.W.1 and she told that, the accused has poured kerosene on her and lit fire. In the examination-in-chief and cross-examination, there is some discrepancy that, on the date of the incident, the deceased said that, she poured kerosene herself and lit fire and has also stated that her husband has poured kerosene and lit fire. P.W.2 has also received the information from the deceased as well P.W.1 and he has stated that, the deceased has suffered burn injuries and admitted to the hospital, but she has not stated that, the accused is the person, who poured kerosene on her, etc. In the course of cross-examination, it is elicited from the mouth of this witness that, the deceased had married the accused, which was a love marriage and repented for the same and she begged pardon with her family members, but there is no suggestion made as to what was the reason for her to commit suicide, as she was pulling on life with the accused in spite of small quarrel and discrepancy with herself and her husband. Therefore, there is no material in the cross-examination of this witness to show that, she had any reason or occasion to commit suicide.
P.W.3 has also stated that he was present when the Police conducted mahazar and seized M.Os.1 to 3. There is no much significance so far as the evidence of this witness is concerned. The evidence of P.W.4 coupled with the evidence of the Doctor as well as pancha witnesses, there is no dispute even by the accused with regard to death of the deceased due to burn injuries. The Post-Mortem examination report issued by P.W.12 also discloses that she sustained burn injuries and she died due to septicemia as a result of burn injuries. Therefore, when the accused has not established his defence of suicidal death, it goes without showing that, the deceased and the accused were there in the house at the relevant point of time, the accused has not explained as to how the incident happened. He was the only person with the deceased, at that time, who can explain how the deceased sustained burn injuries. In the absence of such explanation and particularly under the facts and circumstances, the Court can draw an inference that, it was a homicidal death. Therefore, the prosecution has established the homicidal death of the deceased.
13. Now, the next point arise for consideration is whether the act of the accused falls under Section 302 of the I.P.C. or under any other provision, the Court has to examine the entire material on record. Other than the dying declaration of the deceased, there is no much evidence to discuss, as P.Ws.5 to 7, who are projected as eyewitnesses, have turned hostile to the prosecution. Therefore, we would like to discuss the dying declaration, which is worth piece of evidence placed before the Court.
14. P.W.9 has categorically stated in his evidence that, on the date of incident, he received information that the injured Padma taking treatment in Victoria Hospital. He went to the hospital and enquired the Doctor at the first instance and came to know, the deceased was not in a position to give statement, and thereafter, came back to the Police Station. On the next date, i.e. on 19-12-2011 at about 12 noon, he visited the hospital and enquired the Doctor once again. P.W.16-the Doctor told him that the victim was in a position to give her statement. Thereafter, in the presence of the Doctor, he recorded the statement of the victim as per Ex.P.12 and thereafter, came to the Police Station and registered a case in Crime No.225 of 2011. He has also stated that, he went to the spot i.e. house of the accused and drew up a spot mahazar and seized M.Os.1 to 3. In the course of cross-examination, it is suggested that he has not gone to the hospital and recorded the dying declaration at all. It is also suggested that the deceased has not put her left thumb impression on Ex.P.12 and Police have taken the left thumb impression of some other person in order to create a case against the accused. It is also suggested that deceased’s mother and sister abused her in filthy language and therefore, she committed suicide. Except these formal suggestions, there is nothing to discard the procedure followed by this witness regarding he taking the opinion of the Doctor, with regard to fitness of the deceased and recording the statement of the victim, after satisfying himself regarding the condition of the victim.
15. Coupled with the evidence of P.W.9, P.W.16-Dr.P. Manjunath has, in fact, stated before this Court that, he was present when P.W.9 recorded the statement of the victim. He has stated that on 18-12-2011, the injured was admitted to the hospital and in fact, on 19-12-2011, P.W.9 along with a Head Constable 4772 had come to the hospital and recorded the statement of the victim as per Ex.P.12. After examining the victim, he has certified that the victim was mentally and physically sound to give her statement. In the course of cross- examination, nothing has been elicited so far as recording of dying declaration by P.W.9 in the presence of this witness. But some strange suggestions were put to the effect that, if the deceased extinguished the fire herself, she would have sustained burn injury to her hand. Same has been accepted by the Doctor and the Doctor has further stated that there was no injury to the hands. This suggestion, in our opinion, does not hold in any water to the case of the accused to show that, she has committed suicide. In the statement given by the victim, she has stated that, she has made attempts to extinguish the fire by wrapping the rug on her body, but she never stated that, she has extinguished the fire with her hands. Except this, there is absolutely no contra evidence in the course of cross-examination of the Doctor to disbelieve as to why the deceased has to falsely implicate the accused.
16. Therefore, looking to the above said documents, the prosecution has proved that, the accused has poured kerosene on the deceased and lit fire and the dying declaration of the deceased marked at Ex.P.12 also categorically reveals the factual aspects that particularly, how the incident happened on the particular date and how the accused poured kerosene. Therefore, we do not find any strong reason to interfere with the opinion expressed by the trial Court that, the accused has poured kerosene and lit fire on the deceased. Now the question boils down as to whether the act committed by the accused falls under Section 302 of the I.P.C. or under Section 304 (Part-I or Part – II) of the I.P.C. For that, the Court has to visualise the entire factual matrix of the case. The deceased married the accused, which is a love marriage, against the wishes of her family members, therefore, whether she was frustrated in life which prompted her to commit suicide. But as could be seen from the evidence of the witnesses, the marriage between the deceased and the accused took place in the year 2009 and they leaved together up to the date of the death, i.e. up to 2011 for a period of three years. In spite of some differences and quarrel between the deceased and the accused, they used to pull on their married life. Further added to that, the Court has to examine what exactly happened on that particular date to draw an inference, for that, we would once again refer to the statement of the victim in Ex.P.12, the dying declaration. Though the victim has stated there was some quarrel between the husband and the wife, but she was advising the accused that, he should leave the habit of drinking alcohal so that they can live happily. Accused was often scolding and telling her to die, but at no point of time, the accused had intention to kill his wife or to harm her. She has categorically explained as to what happened on the date of the incident, i.e on 18-12-2011. The accused was not there in the house in the morning, he had gone outside. Prior to 18-12-2011, brother, sister and mother of the accused had come to the house of the accused and they were residing together. On 18-12-2011, they left the house for the reasons best know to them, particularly, on the ground that the house was very small, it will not accommodate so many persons. Accused came to the house at 8:30 a.m. and questioned the deceased as to where his mother, brother and sister had gone. Then, she told, they went out of the house. On the said ground, he suspected that, she must be the root cause for the purpose of sending them from the house and he started quarreling with his wife and thereafter, all of sudden, he took the pump stove, poured kerosene and lit fire on the deceased.
17. In the above said circumstances, it clearly goes to show that, at no point of time prior to 18-12-2011, the accused had any intention to kill his wife, but on the particular date also, he had no intention to kill his wife. When he came back to his house at 8:30 a.m., he was little annoyed for the reason that his mother, brother and sister were sent out of the house, therefore, in a fur of moment, he has taken a decision to do away the life of his wife. At that time, intention to kill cropped up, he took the pump stove, poured kerosene. Up to 8:30 a.m, there was no intention and immediately at 8:30 a.m., he has taken a decision to kill his wife, perhaps this was happened because of the sudden quarrel with his wife and sudden provocation, he has committed such an act. Therefore, in our opinion, the above said act of the accused falls Exception to Section 300 of the I.P.C. It is worth to refer Exception 4 to Section 300 of the I.P.C. which says that “culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” It is immaterial in such cases which party offers the provocation or commits the first assault. Therefore, the above said circumstances narrated by us fall under this Section. There is no premeditation. When the accused entered the house, there was sudden quarrel between his wife and himself and without taking undue advantage, he poured kerosene and lit fire on the deceased. The injuries sustained by the deceased disclose that, there was no serious injuries to cause instantaneous death, she survived for eight days, therefore, we are of the opinion that, in a fur of moment, the incident must had happened. Therefore, we are of the opinion that the offence would not fall under Section 302 of the I.P.C., but it would fall under Section 304 (Part-I) of the I.P.C. Hence, the accused is liable to be convicted for the said offence.
18. The nature and gravity of the case and conduct of the accused has to be considered in order to impose punishment. We feel just and necessary to impose ten years of imprisonment and to impose a fine of Rs.50,000/-, in default of payment of fine, the accused to further undergo simple imprisonment for a period of six months. It would be appropriate and commensurate with the offence committed by the accused. With this observation, we proceed to pass the following:
O R D E R The appeal is party-allowed. The judgment of conviction and order of sentence passed by the trial Court for the offence punishable under Section 302 of the I.P.C. is hereby set-aside. Further, the accused – appellant is convicted for the offence punishable under Section 304 (Part-I) and sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, to further undergo simple imprisonment for a period of six months. If any fine amount is deposited before the Court, Rs.40,000/- shall be awarded as compensation to P.W.1-Manjula, who has taken the deceased to the hospital for treatment, etc.
SD/- JUDGE SD/- JUDGE kvk