IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO AND THE HON’BLE MR.JUSTICE SUNIL DUTT YADAV CRIMINAL APPEAL No.2008/2016 BETWEEN:
SREE RAMAIAH @ RAMANNA @ SRIRANGAIAH S/O LATE SANNA RANGAPPA AGED 41 YEARS, LABOURER R/O KAVALAPPA BRICKS FACTORY SHEDS YELLAPURA, KASABA HOBLI, MANDALAPALLI, MADAKASIRA TALUK TUMKUR DISTRICT, TUMKUR.
(NOW IN CENTRAL PRISON PARAPPANA AGRAHARA, BANGALORE – 560 100).
(BY SRI KRISHNAPPA N.R., ADVOCATE) AND:
THE STATE BY TUMKUR RURAL POLICE TUMKUR REPRESENTED BY ITS SPP HIGH COURT BUILDING HIGH COURT, BENGALURU -560 001. (BY SRI VIJAYKUMAR MAJAGE, SPP) ...APPELLANT ...RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C BY THE ADVOCATE FOR APPELLANT/ACCUSED TO SET ASIDE THE JUDGMENT DATED 21.09.2016 AND CONVICTION ORDER DATED 22.09.2016 PASSED IN S.C.NO.7/2016 BY II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 498A AND 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, N.K.SUDHINDRARAO J., DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and order of sentence dated 21/22.09.2016 passed by the learned II Additional District and Sessions Judge at Tumakuru in S.C.No.7/2016 wherein the accused was found guilty for having committed offences punishable under Sections 498A and 302 of IPC and was sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 498A of IPC and to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- for the offence punishable under Section 302 of IPC. Against the said Judgment and order the accused has preferred the present appeal.
2. The complaint came to be registered in Crime No.169/2015 by Tumakuru Rural Police, for the offences punishable under Sections 498A and 307 of IPC against accused. The complainant is one Ambikamma, W/o Sree Ramaiah and the complaint was lodged on the basis of the statement of given by the victim on 28.07.2015.
3. It is stated by Ambikamma that she and accused are spouses and were residing for ten months in a shed in Sy.No.87/6 of Beeranakallu Village belonging to CW-3 and working as a coolie. The life was happy in the beginning for six months. Subsequently the wife was subjected by accused to mental cruelty and he was getting his entire earnings exhausted for consumption of alcohol and was also not contributing for household expenses. It is stated that on 27.07.2015 at about 11 P.M. when Ambikamma questioned as to why accused was spending entire earnings towards consumption of alcohol and not giving the money towards household expenses, the accused abused deceased Ambikamma in filthy language and assaulted her and poured kerosene on her and lit fire. She sustained serious injuries and shifted to Victoria Hospital and in the course of treatment she died on 01.08.2015 at about 9.30 P.M. It is also stated that victim Ambikamma was admitted to hospital with serious burn injuries.
4. It is necessary to clarify at this stage itself that at the time of filing of complaint it was registered as cruelty to married women and attempt to murder and by virtue of death as stated above major offence punishable under Section 302 of IPC came to be included in the chargesheet.
5. On completion of investigation accused was charge sheeted in C.C.No.5517/2015. After hearing the accused and the prosecution, charges were framed, accused pleaded not guilty and came to be tried.
6. During the trial the prosecution produced evidence in the form of oral evidence of PW-1 to PW-14 and documentary evidence Exhibits P-1 to P-14 and material objects M.O.1 to 4.
7. On considering the evidence stated above and on the submissions of learned Public Prosecutor and learned counsel for accused, accused was found guilty for the offences punishable under Sections 498A and 302 of IPC and sentenced him as stated above.
8. We have heard the learned counsel for appellant Sri N R Krishnappa and learned Special Public Prosecutor Sri Vijayakumar Majage, for prosecution.
9. It is incumbent upon the prosecution to establish the death of Ambikamma on 01.08.2015 was not a natural one but homicidal. In this connection the complaint Ex.P-2, Ex.P-3-two photos, Ex.P-4- Mahazar, Ex.P-5-inquest mahazar, Ex.P-6-Post mortem report, oral evidence of doctor and cause of death stated in the post mortem report to the effect that death was caused due to Septicemia because of burn injuries. It confirms that the death was a homicidal one and the learned trial Judge has rightly considered the death as homicidal.
10. Having established that death of Ambikamma being homicidal it is further incumbent on the part of the prosecution to establish that homicidal of Ambikamma was done by her husband Sriramaiah @ Srirangappa, S/o Sanna Rangappa. Complaint is lodged by one Vishwanatha, brother of deceased Ambikamma and it is marked as Ex.P-2 dated 02.08.2015.
11. The marriage of the accused and deceased Ambikamma is said to have taken place 13 years back and they begot son aged 8 years at the time of the complaint. The said child was residing in the house of his paternal uncle. Both accused and deceased were coolies. The accused was not doing his work properly. Very often he used to come intoxicated and assaulted his wife.
12. On 27.07.2015 at about 11 P.M. he came intoxicated into the shed and demanded his wife to pay coolie amount to him for consuming alcohol. As she could not pay he doused kerosene on her and lit fire. As a result of which she sustained serious injuries. Neighbours treated her and Ambikamma was admitted to hospital. On 01.08.2015 the victim Ambikamma was unable to recover from burn injuries succumbed to them and case was converted to include offence punishable under Section 302 in place of Section 307 of IPC.
13. On 28.07.2015 statement of Ambikamma was recorded by the police on the basis of which a criminal case came to be registered in Crime No.169/2015 for the offence punishable under Sections 498A and 307 of IPC which was transformed to include Section 302 IPC in the circumstances as stated above.
14. However, it is seen that it is recorded by Police Sub Inspector. The substance of the statement is that, she resides at shed in the brick factory of Kavalappa at Roppadapalya, Kasaba hobli, Tumkur Taluk. Her parental house is at Suraganahalli, Hiriyur Taluk. There are eight children to her parents. Four male and four female. She is the youngest. She was given in marriage to Sriramaiah, of Madakshira and begot a son, then aged about 8 years and he was staying along with his paternal uncle and Ambikamma and the accused were doing coolie work. Her husband was not taking up responsibility and exhausting all the earnings in consuming alcohol and whenever questioned, he used to beat and torture the complainant. On 27.07.2015, she was at shed. Her husband returned by 10.00 p.m. and asked her to shell down coolie amount, for which she has answered that if it is given he will consume alcohol and she will not give. Husband got enraged, took a kerosene can which was available in the house, poured kerosene on her and set fire and thus, attempted on her life. On hearing her screaming voice, neighbhour Muthyalamma came immediately, spread a rug on her to put off the fire and information was sent to Kavalappa, owner of the Factory (employer) and the complainant was taken to hospital. She tells that the time of the incident is 11.00 p.m. The above complaint is stated to have been registered in the morning on 28.07.2015 at about 9.45 a.m. by PSI on the basis of statement of complainant recorded by Head Constable No.244. It is also stated that the said complaint or statement was recorded form 9.15 a.m. to 9.45 a.m. The chargesheet was submitted for the said offences.
15. Learned counsel Sri. N.R.Krishnappa, appearing for the appellant/accused would submit that there is no required direct evidence to show that the accused committed murder of his wife. The complaint was lodged only out of vengeance to settle scores against the accused.
16. Learned counsel would further submit even during the trial none of the witnesses have supported the prosecution case. Further, the case came to be registered on complaint in respect of which there is no corroboration. There is no mandatory formalities followed by Head Constable who recorded the statement or the Police Sub-Inspector who registered the case. Learned counsel would further submit that by virtue of the serious lapses stated above, the registration of case is itself vitiated. Learned counsel would further submit that the serious lapses in connection with non availability of corroborations, accused is not liable for conviction. It was also submitted that the victim came into contact with fire accidentally while cooking the food. It was also submitted that accused, in fact, offered himself to avert further injuries and to save his wife in the process of which, he also sustained injuries.
17. The death of the victim is not stated to be natural. Only difference between the accused and the prosecution is that, the prosecution claims that it is a homicide death done by the accused and on the other hand, the accused claims it to be accidental.
18. Learned SPP would submit that accused is the only person who is guilty of murder of his wife. Accused being the author of the murder has not given any information which is in his knowledge. The incident happened in the house in the late hours and the presence of the accused has been established. It is further submitted that cruelty and anger by the accused towards victim is established. The statement of the deceased when she was totally able to give the same is recorded without any lapse. Further he submits that by virtue of the cause of death her statement has become valuable and impeccable.
19. Among the witnesses who were examined by the prosecution, Muthyalamma, is PW1. She is the neighbour of the house/shed where accused and the deceased were residing. This witness was examined on 24.03.2016. She tells about the residence of the accused, his wife, this witness and others. She also states that all was not well with the accused as his wife Ambikamma was subjected to severe torture by him. Her further statement on oath is, this witness was informed by Ambikamma alone that her husband set fire. According to this witness, the spouse were quarrelling and she had informed CW3/PW2- Mahalakshmamma over phone. Ambikamma admitted to the hospital by this witness, CW3- Mahalakshmamma and CW4-Krishnappa. The police officers there have enquired this witness and others and she tells about the mahazar being conducted and seizure of the plastic can.
20. She has also been cross examined. Insofar as her evidence is concerned, she is a neighbhour to the accused and the deceased. Deceased Ambikamma had told this witness about the fire being set by the accused.
21. PW2-Mahalakshmamma, who is CW3 is the wife of the owner of brick factory and colleague working in brick factory along with Ambikamma. She was examined on 24.3.2016 She tells that when she was at home at about between 10.00 p.m. and 10.30 p.m. PW1-Muthyalamma informed this lady about the intimation of accused setting fire to Ambikamma. She was also went to hospital along with Ambikamma and Muthyalamma.
22. Vishwanatha, PW-3 is the brother of Ambikamma. He was examined on 24.3.2016. He speaks about the marriage between accused and the deceased, relationship, physical and mental torture by the accused on her and also setting fire by pouring kerosene to Ambikamma by the accused. He tells that on previous one or two occasions also Ambikamma had telephoned and expressed her difficulty on undergoing torture. He also joins in stating that the accused was not giving any money for maintenance and he was exhausting the same for consuming alcohol. He speaks regarding the other facts of residence and relationship of the accused and the deceased and getting information about the burn injuries on Ambikamma, going to the hospital and hearing from Ambikamma who was in a position to speak and she told that the accused set fire on her and also he used to come intoxicated and torturing her physically. She was admitted to hospital. This witness also tells that on the earlier occasion also they had received the complaint by Ambikamma over the cruelty of the accused and this witness had even advised him.
23. Lokesh is examined on 21.4.2016 as PW4. He is an circumstantial witness.
Navilesh is examined on 27.4.2016 as PW5. He is the mahazar witness to Ex.P4 for seizing photographs.
24. Thimmaiah is examined on 4.8.2016 as PW6. He speaks that after the marriage, Ambikamma was subjected to torture and cruelty by accused and who was demanding money earned through coolie work to be given to him by Ambikamma for consuming alcohol. Regarding the incident, this witness tells about the information received regarding the incident he going to hospital and she informed that accused set fire to her. He also tells that on earlier occasions, during the life time of Ambikamma he used to hear the complaint by Ambikamma over cruelty both physical and mental torture and advised the accused, but better sense did not prevail on.
25. Mudlagiriyappa is examined on 4.8.2016 as PW7.
He also speaks about the circumstances and also causing of death and he tells that during the life time he heard about the grievance of Ambikamma and conducted panchayat and after the incident when once he came to know that Ambikamma was hospitalized, he went there and heard news from her to the effect that her husband poured kerosene on her and set her ablaze.
26. Lakshmamma, is examined on 4.8.2016 as PW8.
She is the mother of victim Ambika. She speaks about marriage and was hearing the grievance of Ambikamma during her life time. She states that accused did not mend his behaviour despite his advise. She also tells that having heard from Ambikamma about the accused pouring kerosene on Ambikamma and setting fire.
27. Rest of the witnesses are:
Dr.DilipKumar, is examined on 10.8.2016 as PW9. He is working as the Assistant Professor in Victoria Hospital in 2009 and has conducted postmortem on the dead body of Smt. Ambika on 02.08. 2015 and has issued Postmortem Report as per Ex.P6 stating the death was due to septicemia as a result of burn injuries sustained by the victim.
28. K.J.Umesh is examined on 10.08.2016 as PW10 who is the Engineer who has prepared the sketch of the place of offence as per Ex.P7.
Gurumallaradya is examined on 10.8.2016 as PW-11. He is the Head Constable who has recorded the statement of Ambikamma in the hospital as he went there on hearing the news about the admission of Ambikamma into the hospital with burn injuries.
29. Dr. Srinivasamurthy is examined on 10.8.2016 as PW12-. He was on duty when Ambikamma was admitted with the history of burn injuries and on enquiring she disclosed that at 11.00 p.m. on 28.7.2015 her husband doused kerosene set fire and thus attempted murder her.
30. P.N.Sheshadri is examined on 19.8.2016 as PW13.He is the Sub Inspector of Police. P.Ravi, CPI has been examined on 19.8.2016 as PW14 and both of them conducted investigation. Regard being had to the fact that PW14-Ravi has submitted the final report and completed the investigation formalities.
31. In the overall circumstances of the case, death of Ambikamma due to burn injuries is not disputed either by the accused or by the prosecution. But it is the specific case of the prosecution that the reason for burn injuries was by pouring kerosene on Ambikamma and setting her ablaze by the accused. However the accused asserts that Ambikamma is the wife came into the contact of fire accidentally while she was setting fuel to cook food.
32. It is necessary to look into the document that is Dying declaration which is not the one recorded with the mindset of apprehension of death. It is a complaint simplicitor when the injured Ambikamma was admitted to the hospital.
33. On information, police came there and on enquiry by PW13, the injured tells that she sustained injuries because of the dousing of kerosene on her and setting fire by her husband. It is necessary to mention that victim has sustained 65% burn injuries. Incidentally, it is not the case that there was apprehension of death of the victim and she was expected to disclose serious injuries which were likely to cause her death.
34. On the other hand, the Doctor who was present is PW12 Dr.Srinivasa Murthy has signed stating patient was in a fit condition to give her statement.
35. The statement was recorded on 28.7.2015 at 9.45 a.m. in the morning in Cr.No.169/2015 for the offence punishable under section 498A and 307 IPC. Incidentally, due to aggravation of the burn injuries Ambikamma died on 01/08/2015 and the statement was recorded on 02/08/2015. It was then known to every body that Ambikamma died due to burn injuries.
36. It was on that date the complaint Ex.P2 and FIR got themselves transformed into dying declaration and their nature becomes substantive evidence.
37. Now the question that was seriously disputed by the learned counsel Sri.N.R.Krishnapa appearing for appellant is that the PSI has not submitted serology report nor it is produced by the prosecution. Which question was responded by Additional SPP Sri. Vijayakumar Majage stating that the circumstances of the case are such that even without serology report the matter can be adjudicated as no grouping of blood is required.
38. In the FSL report, it is observed that item No.1, 3 and 4 contains kerosene. Storing of kerosene cannot be ruled out in the shed where the accused and deceased were staying. More particularly, where the statement is recorded as final declaration or it becomes dying declaration, the source where it gets diluted must have sanctity and reliability. In this connection the persons who came in contact in the natural circumstances with Ambikamma are:PW1- Muthyalamma, at the first instance in the place of incident itself where Ambikamma tells Muthyalamma, PW1 in the house and thereafter she was taken to hospital and PW4-Lokesh also stated to be colleague in the brick factory who also had an occasion to know the disturbances in the life and heard from her regarding the cause of injuries being the one inflicted by her husband, wherein, he doused her with kerosene and then set fire.
39. Added to this, there has been line of witnesses viz., PW6-Thimmaiah, PW7-Mudlagiryappa and PW8- Lakshmamma) who are not prejudiced or biased towards the accused and then say that Ambikamma suffered burn injuries because of setting fire by the accused and the reason that Ambikamma did not give money to him out of her coolie earnings to consume alcohol. In the circumstances, the burn injuries sustained by the victim Ambikamma as noted by Dr.Srinivasamurthy PW12, who admitted the patient only and again on hearing her, has stated that Ambikamma told him that her husband doused kerosene on her and set fire at about 11.00 p.m. on 27.7.2015. The circumstance and the situation of the said witnesses hearing the information from Ambikamma are natural beyond doubt.
40. The Doctor is an independent witness has no animosity or bias in the case. The further circumstance of recording statement is stated to be natural. The injuries were there. The injuries noted in the Post mortem Report are as under:
External injuries:
Partially infected burn injuries present over whole face including lips, neck, front of both the arms, front and back of both forearms and wrist in patches including left palm, front of chest and abdomen in patches sparing external genitalia, front of both the lower limbs sparing soles. Most of the burnt areas shows greenish yellow coloured slough lined by thin layer of foul smelling pus at placles. Scalp hairs are singed.
II. Cranium and Spinal Canal Scalp, Skull & Vertebrae : Scalp – Described.
Skull - intact.
Members : Intact.
Brain & Spinal Cord : Brain – Congested.
III.Thorax Chest Wall, Ribs & Cartilages : Described. Pleurae : Intact.
Larynx & Trachea : Intact. Right Lung & Left Lung : Shows patch consolidation. C/s exudes blood mixed with pus.
Pericardium, Heart, Large Vessels : Intact.
IV.Abdomen Wall : Described.
Peritoneum : Intact. Mouth, Pharynx & Oesophagus : Intact. Stomach & its contents : Contains 50 ml of Yellow colourec fluid. No unusual smell present.
Mucosa: Normal Small intestine & its contents : Contains gas and Its contents.
Large intestine & its contents : Contains gas and its contents.
Liver : Intact.
Spleen : Intact.
V.Genito Urinary Organs.
Kidneys : Intact.
Bladder : Intact.
Organs of generation : External: Intact, external & internal Cavity: Empty.
Fractures Dislocation/ More detailed description of injury or disease:
Partially infected antemortem burn injuries are seen.
41. The possibility of inflicting injuries on the portion of the body as stated above are not ordinarily possible when a person inflicts burn injuries by self. More particularly, accused claims that it was an accidental fire and not suicidal one. By means, she is not a combustible body wherein it gets combusted when contacted fire. The suggestion of the accused to the witness PW1-Muthyalamma that Ambikamma came into contact with fire when she was arranging fuel into oven. The attendant circumstances suggest that the kerosene was poured on by person present in front of the victim Ambikamma.
42. In the overall circumstances of the case and on analyzing the entire evidence on record, we conclude that death of Ambikamma on 01-08-2015 is due to burn injuries sustained by her on 27-7-2015 was a homicide and the same was intentionally done by the accused.
43. Insofar as the uniform evidence from PWs 1 to 4, 6,7 and 8 and Exs.P2-first complaint and Ex.P8- statement of the victim, invariably establish that all was not well with the life of Ambikamma under the hands of the accused. It is not an easy affair or even a normal affair to pull the life on under the husband who is addicted to alcohol.
44. Besides not contributing money for maintenance he used to snatch those earnings through of Ambikamma for alcohol. Even on the date of incident money was demanded from her and on refusal, he poured kerosene and set her ablaze. Regard being had to the fact that the burn injuries of 65% under medical treatment she survived for four days. But being unable to recover from the effect of burn injuries which had transformed into septicemia she succumbed to them on 01-08-2015.
45. On perusal of the materials on record, we find that there is no error, irregularity or infirmity or lapses in the judgment rendered by the learned trial Judge in S.C.No.7/2016 wherein, he found the accused guilty of having committed the offence punishable under Sections 498A and 302 of IPC.
46. Here, it is also necessary to observe that while pronouncing the judgment and sentence, it necessary to mention the nature of the offence and the punishment provided to it. This becomes necessary when the offence is punishable both with imprisonment and fine. But the trial Judge appears to have not noticed it.
47. Hence, the appeal is dismissed.
The judgment dated 21.09.2016 passed in S.C.No.7/2016 by the learned trial Judge and the order of sentence dated 22.09.2016 is hereby confirmed.
The period of judicial custody of the accused spent by him in the jail till the pronouncement of judgment shall be given set off against the substantial sentence.
Sd/- JUDGE Sd/- JUDGE SBN/tsn*