IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.1160/2014 (C) BETWEEN:
PRAKASHA B M S/O MADAIAH AGED ABOUT 34 YEARS R/O BANDURU VILLAGE KIRUGAVALU HOBLI MALAVALLI TALUK – 571 430 … APPELLANT (BY SRI. A. H. BHAGAVAN, ADV.) AND:
STATE BY MALAVALLI RURAL POLICE – 571 430 … RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE CONVICTION ORDER AND SENTENCE DATED 4.12.2014, PASSED BY THE I ADDL. DIST. & SESSIONS JUDGE, MANDYA, IN S.C.NO.41/2013 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR LIFE AND TO PAY A FINE OF RS.20,000/- IN DEFAULT SIMPLE IMPRISONMENT FOR 6 MONTHS, FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The sole accused (appellant herein) has preferred this appeal against the judgment of conviction and order of sentence dated 04-12-2014 passed by the I Additional District and Sessions Judge, Mandya, in S.C.No.41/2013 (hereinafter referred to as “Trial Court” for short) convicting the appellant/accused for the offence punishable under Section 302 of I.P.C. and sentencing him to undergo Imprisonment for life and to pay fine of `20,000/-, in default, to undergo six months’ imprisonment for the offence under Section 302 I.P.C.
2. We have heard the arguments of the learned counsel for the appellant/accused, Sri.A.H. Bhagawan and also the learned SPP-II, Sri. I.S. Pramod Chandra, for the respondent State. We have carefully re-evaluated the evidence on record and also perused the judgment of the Trial Court.
3. Before adverting to the submissions made by the learned counsel for the appellant/accused and the learned SPP-II, for the respondent state we would like to have the brief factual matrix of this case.
4. It is the case of the prosecution that, the accused was the resident of Banduru Village in Malavalli Taluk, Mandya District. He was residing in a pump set shed, situated in Bandur Village, on the road leading to Hittanakoppalu along with his wife and their two children. The first child-Nirmala aged 8 years, was both mentally and physically challenged girl and another girl was a small child. It is further case of the prosecution that the accused was addicted to alcohol and used to quarrel with his wife in demand of money for the purpose of his vice habits. In this context, it is alleged that on 10-11-2012, in the evening at about 5:00 ‘O’ clock, the accused started quarrelling with his wife, and in fact the accused assaulted his wife with a club, and she sustained injury which was seen by PWs. 1 and 2, who have resolved the dispute between the husband and wife.
5. Thereafter, on the same day at about 5.30 p.m., the accused brought the kerosene can, poured kerosene on a heap of firewood dumped near pump set shed, which was by the side of the road and lit fire and thereafter, he went inside his shed and dragged his physically and mentally challenged 8 year old daughter- Nirmala and threw her into the burning fire. The child started crying, but in spite of that the accused did not mind to extinguish the fire and rescue the child and in fact he was declaring that he himself has done that act and he would go to jail. PW.1 ( complainant), though has seen this particular act, he could not go to rescue the child, because he was scared by the attitude of the accused, who was standing by the side of the fire holding a club in his hand. Everybody in the lane of shed knew about the wicked behaviour of the accused, therefore, no one has attempted to extinguish the fire and rescue the child. Thereafter, PW.1 lodged a complaint before the police which was registered in Crime No. 180/2012 for the offence punishable under Section 302 of IPC. The police after thorough investigation, laid the charge sheet against the accused.
6. The prosecution has examined as many as 17 witnesses viz., PWs. 1 to 17 and got marked Exs. P1 to P35 and also the material objects as per MOs. 1 to 3. During the course of cross-examination of PW.1, Ex.D1 to D4 (Photographs) were got marked.
7. Sri. A.H. Bhagavan, learned counsel for the appellant, though at the initial stages argued that the trial Court has not properly appreciated the oral and documentary evidence and it erroneously convicted the accused on the interested testimony of PWs. 1 & 2 and though the other similar witnesses have turned hostile to the prosecution case. But, ultimately he concentrated his arguments with reference to the conduct of the accused and further submitted that, even if the entire evidence of the prosecution is accepted, the accused was a drunkard and he used to come home everyday in drunken state and demanding money from his wife and when she refused to pay money, he used to assault her. Therefore, in that context, on the date of incident also he might have come to the house fully drunk and he was not able to balance himself and without foreseeing the consequences of his act, he might have done that particular act. Therefore, at the most, his act may fall under Section 304-II of IPC. Therefore, the learned counsel requested the court to modify the judgment of conviction and sentence passed by the trial Court.
8. Per contra, Sri. I.S. Pramod Chandra, learned SPP-II strenuously submitted before the court that, it is one of the classic cases of barbaric act. The accused killed his own daughter in demand of money from his wife that too the pension amount granted in favour of the physically and mentally challenged child, which was received by his wife (PW.6) on that day. When the accused demanded for that money, his wife refused to give the same, therefore, he assaulted her and made her to run away from the spot, and thereafter, he killed his own child. The learned SPP has contended that, there are two eye-witnesses to the incident and all the circumstances also go to show that the accused has intentionally and deliberately killed his own daughter, therefore, there is absolutely no room for this court to interfere with the impugned judgment of conviction and sentence passed by the trial Court, and he prayed for dismissal of this appeal.
9. After hearing the learned counsel on both sides and on careful evaluation of the material available on record, we would like to have a cursory look at the evidence of the witnesses, as under:
9.1 PW.1-Rangaswamy is the neighbourer of the accused and who is the eye-witness to the incident and who lodged a complaint as per Ex.P1. He is also a witness to spot mahazar (Ex.P2). During the course of his cross- examination, Ex.D1 to D3 were got marked.
9.2 PW2-Gowramma is another eye-witness, who is no other than the wife of PW.1. Both PW.1 and PW.2 being neighbourers of the accused, have spoken about the conduct of the accused and his family story.
9.3 PW.3-Chandrashekaraiah is another panch witness to Ex.P2. Both PWs.1 and 3 have identified the photographs Exs. P3 and P4.
9.4 PW.4-Ningaiah is the person, who telephoned to the police with regard to the incident. Though he has not fully supported the case of the prosecution, but he has supported the case to the extent of informing the police about the information received by him with regard to the incident.
9.5 PW.5-Puttaraj is a relative of the wife of the accused and he is a panch witness to Ex.P6-Spot Mahazar of the place where the accused assaulted his wife and also recovery of MO.3-Club, with which the accused assaulted his wife.
9.6 PW.6-Manjula is no other than the wife of the accused. She also stated about the circumstances prevailing in her house prior to and on the date of the incident. She has also spoken about the conduct of the accused and also assault on her by the accused on the date of the incident. She has also identified MO-3-Club with which the accused assaulted her. Her evidence was also corroborated with the evidence of PWs. 1, 2 and others.
9.7 PW.7-Yogendrakumar S. is the doctor, who treated PW.6 on the history of assault by the accused and issued wound certificate as per Ex.P1 and also he gave opinion that, the injuries found on PW.6 could be caused by assault on a person with the weapon like MO.3. He also corroborated the evidence of PWs. 1 & 2 and 6.
9.8 PW.8-Doddaiah and PW.9-Gendaiah are also witnesses to the prosecution case. It is their statement before police that, after they came to know about the incident, they came to the spot and saw the accused declaring that, he himself has committed murder of his daughter. But these two witnesses have not supported the case of the prosecution and they turned hostile. Their statements are marked atExs. P22 and P23.
9.9 PW.10–D.S. Nagaraju is an agriculturist, before whom, the accused had told that he has committed the murder of his own daughter. He also turned hostile.
9.10 PW.11-Dr. Sangeetha is the Doctor who conducted post-mortem examination on the dead body of the deceased child Nirmala and issued post-mortem report as per Ex.P25. She has also stated that the deceased sustained burn injuries all over the body and the organs were completely charred from head to midleg. Body is in pugilistic attitude. Exposal of bones was the result of internal burns. Heat crack on the left parietal bone in a circular fasion around 4 cms. Left pluara cavity was exposed due to heat crack measuring 6x10 cms. Larynx and trachea charred sooth particles in the larynx present. She has given her opinion that, the death was due to shock as a result of 95% to 100% deep burns. She has not been cross-examined by the defence.
9.11 PW.12-M.P. Nandeesha is the manager of Corporation Bank, who deposed with regard to release of a sum of Rs.1,000/- towards the physically handicapped pension awarded to the deceased child Nirmala and the said amount was given to PW.6-Manjula and he issued certificate to that effect, as per Ex.P26. The evidence of this witness is also corroborated by the evidence of PW.6.
8.12 PW.13-Anasuya and PW.14-Radhamani are the women conciliators of GnanaSindhu Institution and Santwana Women Institution respectively and they have told about the dispute between the husband (accused) and wife (PW.6) and resolution of dispute between them etc.
9.13 PW.15-L. Sampath Kumar is the ASI. After receipt of the information, he went with CPI to the spot and saw the child burning in fire and they extinguished the fire and took out the child from fire and shifted the dead body of the child to the hospital. They also conducted inquest as per Ex.P18.
9.14 PW.16-Santhosh is the PSI of Bindiganavile Police Station, Nagamangala. After receipt of the information, he also went to the spot and he in fact saw the accused aggravating fire and also declaring that he has actually committed the murder of his own daughter. He has also deposed that, he witnessed the incident and saw the dead body of the child. Exs. D2 and D3 are the photographs and thereafter he received the complaint as per Ex.P1 from PW.1 and registered a case in Crime No.
180/2012 and dispatched the FIR (Ex.P29) to the Court and he gave report to PW.17 and handed over the further investigation to PW.17.
9.15 PW.17-Pratap Reddy has apprehended the accused, arrested him and after completion of investigation, submitted the charge sheet against him.
10. The evidence of PWs. 1 & 2 in our opinion, is totally deserving to be considered sofar as this case is concerned. They are the eye-witnesses to the incident. There is absolutely no dispute with regard to the factum of the relationship between the accused and PW.6 and they were blessed with two children, one is deceased Nirmala, a physically and mentally challenged girl and another child was aged about three years as on the date of the incident. It is not in dispute that, the accused along with his wife (PW.6) and two children viz., the deceased Nirmala and another small child, were living in a pumpset shed, which is situated near the house of PWs. 1 & 2. It is virtually admitted in the course of cross-examination of PW.2 by suggesting that, the deceased child was not protected in the house and there was accidental fire in front the of the house of the accused and the child itself crawled towards the burning fire and accidentally fell into the fire and lost its life. This suggestion clearly goes to show that, there cannot be any dispute by the accused with regard to the child sustaining burn injuries and died due to burn injuries. In this background and with this admitted facts, we have to examine the evidence of PWs. 1 & 2.
11. Both PWs. 1 & 2 have stated in their evidence that, they were often witnessing the accused and the deceased quarrelling with each other in their house and the accused was often use to assault his wife and quarrelling with her in demand of money in order to meet his vice habits like smoking, consuming alcohol, etc. In this background, it is stated by them that, on 10.11.2012, PW.6-Manjula, the wife of the accused had been to Channarayapatna for the purpose of receiving the monthly pension of her physically handicapped child. It is further stated by them that, nearby the shed of the accused, there was a heap of fire wood and in fact, the accused brought a kerosene can from the shed and poured kerosene on that heap of fire wood and lit fire and thereafter, he went inside the shed and dragged his physically and mentally challenged 8 year old child and threw her into the burning fire. The child started crying and in spite of that, the accused did not try to rescue the child or he allowed anybody to rescue the child and the said child lost its life by sustaining severe burn injuries. PWs.1 & 2 also stated that, the accused was holding a club and standing by the side of the burning fire to which he threw the child. Thereafter, PW.1 says that, he went to the police and lodged a complaint as per Ex.P1. The police came to the spot and took out the child from fire, extinguished the fire, and shifted the burnt dead body of the child to the hospital. He has also identified the remains of the firewood marked as MOs. 1 & 2 and also identified the place of incident as per photographs –Exs. P3 and P4. He has also categorically deposed that, often the accused was demanding his wife for money in order to consume the alcohol.
11.1 Though lengthy cross-examination has been adverted to PW.1 and to some extent on PW.2 also, but the core of the prosecution case with regard to the death of the deceased due to burn injuries, is not disputed. Some questions have been put to PWs. 1 & 2 with regard to the topography of the house of the accused as per Exs. D1 to D3 (Photos). These witnesses have categorically admitted the existence of a shed of the accused and also the house of these witnesses, and other circumstances which are available, on seeing the photographs. This also clearly discloses that, these witnesses are not interested witnesses and they stated before the court what they have actually seen unmindfully, whether it goes in favour of the prosecution or in favour of the accused. It is also elicited in the course of cross- examination that, on the next day of the incident, PW.1 has not seen PW.6-Manjula in Banduru village, which is the place of incident and she was not present in the said village on the date of incident. It is also elicited that, the child-Nirmala was so incapable of moving around and it used to crawl to move out from one place to another. He has also stated that, when the accused was doing the said cruel act, some people were also walking around the place of incident, but no one attempted to rescue the child because, they are scared of the accused and it is reiterated that the accused was standing by the side where the fire was burning and he was also abusing the surrounding people and also saying that he himself has committed such an act. Except elucidation of these facts, nothing worth has been elicited so as to disbelieve the evidence of these witnesses.
12. As we have already narrated, according to the defence of the accused, it was accidental fire and due to which the child has sustained burn injuries. But, absolutely there is no foundation sofar as this aspect is concerned, on other hand the admitted fact is that the child was unable to move around on its own and it was virtually crawling. In the course of evidence of PW.2, she further stated that, she (PW.2) asked the accused just prior to the incident that, why he assaulted his wife (PW.6) and for that, he told that, it is his family affair and PW.2 should not poke her nose to the same. Except that nothing worth is available to disbelieve the evidence of these two witnesses.
13. Apart from the evidence of PWs. 1 & 2, the evidence of PW.3 also clearly indicates that, the police had come to the spot for the purpose of conducting spot mahazar at the initial stages. PW.1 has shown the spot and has explained to the police as to how the incident happened and the police have drawn mahazar as per Ex.P2. In the course of cross-examination, it is elicited that, this witness is related to PW.6 (wife of the accused). But, in our opinion, it is not sufficient to doubt this witness on the ground of any interestedness because, the evidence of this witness is fully supported by the evidence of PWs. 1 & 2with regard to happening of the incident, police coming to the spot, drawing up of mahazar, shifting the dead body of the deceased child –Nirmala to the hospital for post-mortem examination etc..
14. PW.4-Ningaiah, turned hostile to the prosecution, but according to the prosecution, he received information with regard to the incident to his mobile by somebody. At that time, he was talking with one MLA regarding the process of a Layout work, and he informed the police over phone with regard to somebody litting fire near Malavalli Canteen and thereafter the police came to the spot in a jeep. Though he has not meticulously stated about the involvement of the accused and other things, but the intimation given to the police by this witness is nevertheless admitted. PW.5 –Puttaraju is another witness to Ex.P6 (Spot Mahazar) which was drawn in respect of the case of assault by the accused on his wife. In fact, PW.6 (wife of accused) shown the place where the accused assaulted her and police drew a mahazar as per Ex.P6 and recovered MO.3- a Club which was used by the accused to assault his wife. The evidence of this witness is worthless because the trial Court has acquitted the accused for the offences punishable under Sections 323 and 324 of IPC sofar as assault on PW.6 is concerned and even the Respondent-State has also not preferred any appeal sofar as this aspect is concerned.
15. PW.6- Manjula, the wife of the accused is a very unfortunate mother since she lost her child due to ghastly act of her husband. She has categorically stated about the conduct of the accused and in spite of such conduct of the accused, she has been living with him. It is stated by her that, initially she could not bear the torture of the accused therefore, she went to Bengaluru for the purpose of working in a Garment Factory, but, even there also the accused started torturing, ill-treating and harassing her; After some time, though some complaints were lodged before the Mahila Santwana Institution and Gnanasindhu Institution for resolution of their disputes, but in spite of resolution of their dispute, the accused did not heed to the advice of anybody. It is further deposed PW.6, that she had two female children, out of them, the elder daughter was physically handicapped and mentally unsound. PW.6 has also stated that the sister of the accused was also a physically handicapped lady.
16. Further, speaking on the incident, P.W.6 has stated that, on that particular day, she had been to Channarayapatna for the purpose of receiving the pension amount allocated to her handicapped daughter and she came back along with money. Then the accused demanded PW.6 for the said money, but she did not accede to his request, therefore, the accused assaulted her with a club. Immediately, she grabbed her small child and escaped from the clutches of the accused and while escaping she fell down and sustained some injuries and she went to Mandya Hospital and admitted there. But another child was in the shed at that particular point of time and she came to know in the night hours of the date of incident that the accused has burnt her first child by throwing her into fire and committed her murder. On the next day morning she came to know that her the child was shifted to the hospital and the child was already dead.
17. In the course of cross-examination, of course some contradictions as per Ex.P20 are elicited with regard to the accused declaring that, if she do not pay any amount, he would kill the child, but the remaining portion of the evidence is not disturbed. In the course of cross- examination though some facts are elicited with regard topography of the house of the accused and PW.1 & 2, but nothing worth has been elicited from the mouth of this witness with regard to earlier dispute or quarrel between the husband and wife. Therefore, there is no reason to disbelieve the evidence of this witness.
18. Further added to the above, the Court can visualize that the wife of the accused so courageously coming to the court deposing against her own husband knowing fully well the consequences of such deposition before the court. If her deposition and the evidence of the prosecution is accepted, she knew that the accused would go behind the bars. But the other factum also to be looked into is that, she lost her daughter, particularly a child which was in need of help from its parents. Therefore, she has courageously and rightly deposed before the court to implicate the accused person into the crime.
19. As we have already discussed, PW7– Yogendrakumar, the Medical Officer, MIMS Hospital, Mandya, has issued the injury certificate in respect of PW.6-Manjula . However, there is no need to discuss much in that regard, because the accused has already been acquitted of the offence under Section 324 of IPC. The other witness PW.11-Dr.Sangeetha has not been cross-examined and the nature of the injuries sustained by the deceased Nirmala has been very well spoken to by PW.11-Dr. Sangeetha and she has stated that the body of the deceased child was completely charred and she sustained 95% to 100% burns, due to which, she succumbed to injuries.
20. The other witnesses, in our opinion, are not so relevant as we have already to some extent discussed the evidence of those witnesses. The Investigating Officer, particularly PSI has in fact stated that, after receiving the information, he went to the spot along with his staff and he saw the accused aggravating the fire with the help of a club and declaring that he himself has put the child into flames. After extinguishing the fire with the help of his staff, this witness removed the dead body of the child and they found the major portion of the body was already burnt and he shifted the dead body of the child to the hospital. He was not much cross-examined.
21. Again we find absolutely no acceptable evidence in the cross-examination of any witnesses which in fact in any manner defend the accused either to acquit him or to reduce the sentence. If the act of the accused is visualized, it was not committed at the instance of anybody. The fact projected that he had consumed alcohol on that particular date and time, and there is no evidence to show that he drank so much of alcohol so that he was unable to foresee the consequences of his act or incident and he was so imbalanced to act upon, so that the court can come to the conclusion that he lost the balance on his mind and his mental capacity was so deteriorated, therefore, under such circumstances he might have committed the offence. It is not that the accused has simply committed such an offence of dragging his own handicapped child up to fire and threw her into fire, which was lit by him by the side of his shed. Even he has not realized or repented about his acts and he has not made any efforts to extinguish the fire and tried to rescue the child. Even after the incident he has not repented himself for his act. It is evident from records that, absolutely there was no repentance on the part of the accused, instead of that, he was declaring himself that, he killed his daughter and he will go to jail and even he had not allowed anybody to extinguish the fire and rescue the child. He was so barbaric and cruel towards his own small child, which was not even able to walk and virtually it was crawling and he mercilessly threw that child into the fire, even the said child was not mentally sound to understand the situation and it was totally dependent on its parents. Therefore, we find height of cruelty on the part of the accused, which no ordinary man can imagine at all whether a father can commit such an act on his own child. Therefore, in the above circumstances, the aforesaid offence of the accused does not fall either under Part –I or Part-II of Section 304 of IPC. Rather at the initial stages we asked the prosecutor, whether any appeal has been preferred with reference to inadequacy of the sentence imposed by the trial Court against the accused and it stated that no such appeal has been filed. Therefore, in the absence of any appeal being filed by the Respondent-State, in this appeal, we cannot enhance the sentence or aggravate the sentence in any manner, though the court on the facts and circumstances inclined to do so.
22. In the above facts and circumstances of this case, with heavy and painful heart towards departed child we are of the opinion that, in this case, the trial Court has properly appreciated the evidence of the prosecution witnesses and convicted and sentenced the accused for the offence under Section 302 of IPC. Absolutely we find no reason to interfere with the impugned judgment of conviction and sentence passed by the trial Court. Hence, the appeal is devoid of merit and the same is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE BMV/KGR*