IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K. SOMASHEKAR AND THE HON’BLE MR. JUSTICE S.SUNIL DUTT YADAV CRIMINAL APPEAL NO. 831 OF 2015 BETWEEN SRI NAGARAJA SON OF KEMPAKALAIAH, AGED ABOUT 32 YEARS, RESIDING AT RAMPURA VILLAGE, NANJANAGUDU TALUK, MYSURU DISTRICT - 571301. ... APPELLANT (BY SRI H.S. SURESH, ADVOCATE) AND STATE OF KARNATAKA BY HULLAHALLI POLICE, NANJANAGUDU CIRCLE, REP. BY: STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU 560001. ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL., SPP) THIS CRL.A. FILED U/S.374(2) CR.P.C BY THE ADV. FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 26.02.2014 PASSED BY THE II ADDL. SESSION JUDGE, MYSORE, IN S.C.NO.107/2012 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 498(A), 302 OF IPC AND SEC. 3,4 OF D.P. ACT.
THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS DAY, K.SOMASHEKAR, J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 26.02.2014 passed by the II Addl.District and Sessions Judge, Mysuru in S.C.No.107/2012 convicting the accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The accused was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for four months for the offence punishable under Section 498A IPC; further, he was to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine he was to undergo simple imprisonment for eight months for the offence punishable under Section 302 IPC; to undergo five years simple imprisonment and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for four months for the offence punishable under Section 3 of the DP Act and finally, to undergo one year simple imprisonment and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for four months for the offence punishable under Section 4 of the DP Act. The sentences were to run concurrently.
2. Heard the learned counsel for the appellant / accused and the learned Additional SPP for the State and perused the impugned judgment passed by the court below.
3. The factual matrix of the appeal is as under:
It is the case of the prosecution that deceased Sakamma @ Neelamma got married to the accused on 09.11.2008 at Ambedkar Bhavan, Ullahalli Hobli, Mysore Taluk according to the customs which prevailed in their community. Since the accused / appellant’s wife was no more, at the intervention of his relatives, it is stated that he married the deceased Sakamma, which was a second marriage and the accused was related to the deceased. At the time of marriage, the accused was said to have been provided cash in a sum of Rs.5,000/- and a gold ring as dowry by the parents of the deceased. The deceased Sakamma and the accused are said to have led a happy marital life for a period of two years and they had a daughter aged two years from the marriage. The complainant being the father of the deceased Sakamma had intended to sell his landed property to perform the marriage of his third daughter.
The accused Nagaraja having come to know about the same, started pestering Sakamma to urge her father to buy him a tractor or an auto rickshaw. The accused is said to have given physical and mental harassment to Sakamma regarding this aspect. In turn, the deceased Sakamma had informed her father – the complainant about her husband’s harassment asking her to get money from him to buy a tractor or an auto rickshaw. In order to put an end to his harassment, the complainant along with other elders of the family had gone to Rampura, the village of the accused and a panchayath is also said to have been held in this regard. The panchayathdars are also said to have advised the deceased and the accused to lead a happy and cordial matrimonial life and after advising them, the complainant and others are said to have returned to their village. But however, on 18.11.2011 at about 11 p.m., the complainant got information from Javaraiah, his relative to the effect that Mudduramaiah of Rampura Village had called him up and informed that the accused Nagaraja had poured kerosene on the complainant’s daughter Sakamma and set her on fire. On receiving the message, the complainant and others had rushed to the house of the accused and found that the deceased had sustained burn injuries all over her body and died. On enquiring, he came to know that the accused Nagaraja had assaulted his daughter Sakkamma with an electric water heater on her left cheek, as a result of which she became unconscious. After she became unconscious, the accused is said to have doused kerosene on her and set her ablaze, and due to severe burn injuries, Sakamma succumbed to the injuries on the same day.
4. After coming to know of the same, PW-1, the father of the deceased had lodged a complaint before the Hullahalli Police, which was registered as Crime No.195/2011 for offences punishable under Sections 498A and 302 IPC and Sections 3 and 4 of the DP Act. Subsequently, the complaint as well as the FIR was sent to the concerned committal court.
The Investigating Officer took up the case for investigation and after investigating the entire case, laid a charge sheet against the accused for the offences under Sections 498A, 302 IPC besides Sections 3 and 4 of the DP Act. Thereafter the case in C.C.No.11/2012 was committed to the Court of Sessions and a case in S.C.No.107/2012 came to be registered. But the accused did not plead guilty but claimed to be tried. Accordingly, the plea of the accused was recorded. Subsequently, in order to prove the guilt of the accused, the prosecution in all examined 19 witnesses as PW-1 to PW-19 and got marked several documents as Exhibits P1 to P41 apart from getting marked material objects MO-1 to MO-9. Subsequent to the closure of the evidence of the prosecution witnesses, the incriminating statement of the accused under Section 313 Cr.P.C. was recorded, wherein the accused has denied the truth of the evidence of the prosecution witnesses. Subsequently, the accused tendered defence evidence and got examined one of the witnesses as DW1 but no document was got marked as contemplated under Section 233 Cr.P.C. Subsequently, on hearing the arguments of the prosecutor and the defence counsel and on appreciating the oral and documentary evidence on record, the Sessions Court by order dated 26.02.2014 in S.C.No.107/2012 convicted the accused for the offences punishable under Section 498A, 302 IPC and Sections 3 and 4 of the DP Act and sentenced him as aforesaid. Hence, this appeal has been preferred by the appellant seeking to allow the appeal and to set aside the said judgment of the Trial Court and acquit him of the offences levelled against him.
5. Learned counsel for the appellant has contended that the Sessions Judge has grossly erred in not appreciating the evidence on record in a proper perspective. His contention is that the entire case of the prosecution, in particular causing the death of the deceased by dousing kerosene on her and setting her ablaze, is based on circumstantial evidence. The prosecution mainly relied on material witnesses Kumari Bhagya – PW9 to speak about the presence of the accused in the house with the deceased at the time of the incident, whereas she has been treated hostile by the prosecution and cross examined. However, she has clearly stated that she was not at all present at the spot of offence. Though the evidence of PW9 goes to the root of the prosecution case, the Trial Court has not considered the same but has in fact convicted the accused.
Further, the learned counsel contends that though the Doctor PW-15 had clearly opined that the dead body of Sakamma was in a completely burnt state, in the absence of any evidence to show that the appellant had indeed caused injury to Sakamma by means of an electric water heater, the court below committed an error in coming to the conclusion that the appellant had caused injury on her cheek by means of an electric water heater and thereafter poured kerosene on her and committed her murder. When there is no direct evidence in this regard, the conclusion arrived at by the court below is opposed to the well established principles of law.
Further, the court below has gravely erred in appreciating the evidence with regard to persistent demand of dowry. PW-1, the father of the deceased has himself clearly stated in his evidence that during the marriage talks of his daughter and the accused, the accused had asked for a gold ring and Rs.5,000/- cash. But PW-1 had told him that he would be able to give only Rs.5,000/- cash and would not give any gold ring, to which the accused had agreed. Further, PW-1 had stated in his cross-examination that since he was informed by Sakamma that the accused had demanded for an autorickshaw or a tractor from her father, PW-1 along with some elders of his village had in fact visited the accused and had convinced him that he had not yet sold his land and that after selling his land, PW-1 would get him an autorickshaw or a tractor. Thus, after convincing the accused, they had returned to their village. Hence, PW-1 himself has stated that the accused was convinced with his explanation. Hence, without any eye-witness account to prove the fact that the accused had doused kerosene on her and set her ablaze, the court below could not have come to a conclusion that the accused had committed the murder of Sakamma for the sake of dowry.
Further, when the prosecution has failed to prove that the appellant / accused was in fact present inside the house at the time of the incident and when none of the witnesses examined by the prosecution had stated that the appellant was indeed present inside the house, the court below ought not to have convicted the accused and sentenced him as aforesaid for the alleged offences.
PW-1 has stated in his cross-examination that after he was treated as hostile, the prosecution had raised questions in suggestive form to which he had answered either positive or negative. He was asked whether the accused had demanded for an autorickshaw or tractor, to which he had answered in positive. Further, when questioned as to whether himself and also one Chikkaiah, Mahadevaiah and Nanjundaiah had been to the house of the accused and constituted a panchayath and advised his son-in-law Nagaraja not to give any harassment to his daughter, to which he had answered in the positive. These facts have not been stated by PW-1 in his examination-in- chief and only in the cross-examination held in suggestive form he had agreed to the said statements made by the prosecution.
6. The learned counsel further contends that there are many inconsistencies and contradictions in the evidence of PW-7 Deviramma, the mother of the deceased and in the evidence of PW-1 Siddaiah, the father of the deceased. PW-7 in her examination-in- chief has stated that during the marriage talks, the accused had demanded for dowry of a sum of Rs.10,000/-, but they had agreed to give only Rs.8,000/-. That eight days prior to her daughter’s marriage with the accused, they had provided Rs.8,000/-, a wrist watch and a gold finger ring to the accused. However, there is no material evidence to prove the said fact. Whereas PW-1 had clearly stated that they had demanded only Rs.5,000/- and a gold ring and he had provided only Rs.5,000/- to which the accused also agreed. Hence, there are serious inconsistencies in the statements of PW1 and PW7, husband and wife themselves regarding their statements, which the court below has lost sight of while convicting the accused.
PWs 11, 12 and 13 were examined for the prosecution, but they did not support the case of the prosecution and they have given a go by to the versions of their own statements. The evidence of PWs 11, 12 and 13 also contradicts the evidence of PW1 Siddaiah, the author of the complaint at Exhibit P1. Hence, it casts a cloud of doubt in the evidence of the material witnesses subjected to examination to prove the guilt of the accused.
PW-16, Taluk Executive Magistrate who issued the inquest report as per Exhibit P-13 also did not notice any injuries on the dead body of Sakamma. Therefore, the learned counsel for the appellant contends that there is camouflage in the theory projected by the prosecution that the accused had committed the murder of the deceased by dousing kerosene on her and setting her ablaze. Hence, he contends that the judgment of conviction and sentence of the court below requires to be set aside and the accused requires to be acquitted of the offences levelled against him.
7. Per contra, the learned Additional SPP for the State supports the impugned order of the court below as being just and proper and submits that the court below has appreciated the entire evidence on record in a proper perspective and has rightly come to the conclusion that the accused has committed the murder of the deceased, which judgment does not call for any interference by this court. He contends that the accused was very much present in the house on 18.11.2011 at 11.00 p.m. and that on the said date he had quarreled with her and there was an altercation between the two, after which he had put the electric water heater appliance on her left cheek, as a result of which Sakamma fell unconscious and thereafter he had poured kerosene on her and set her ablaze. As a result, she died on the spot itself.
The evidence has been appreciated by the court below in a proper perspective and it has rightly come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and convicted the accused for the aforesaid offences. Hence, he submits that this appeal requires to be dismissed as being devoid of merits.
8. On hearing the learned counsel for both the parties, we find that in view of the contentions urged by the learned counsel for the appellant in this appeal supported by the material on record, the entire evidence requires to be re-appreciated. It is also to be noticed that the Investigating Officer did not make any endeavour to secure a report from the concerned Doctor relating to the injuries sustained by the deceased. That itself indicates that there is camouflage in the theory projected by the prosecution.
PW-1, Siddaiah the complainant who is the father of the deceased has clearly stated in his examination-in- chief that he had given Rs.5,000/- as dowry to the accused at the time of marriage and the couple had led a happy marital life for a period of two years. But however after two years, that the accused got into the habit of consuming liquor and was physically assaulting his daughter. That she had informed her father about this two to three times and both the husband and wife had visited Rampura where their daughter resided and had advised their son-in-law Nagaraja not to assault their daughter. It is eight days after their visit to Rampura that they got information from their neighbour that the accused had doused kerosene on Sakamma and set her ablaze. In PW-1’s examination-in-chief, he has not stated that he was informed by his daughter that the accused Nagaraja was ill-treating her asking her to get an autorickshaw or a tractor from her father. It is only in the cross-examination which was recorded in a suggestive format when the prosecution had questioned him whether accused Nagaraja was ill- treating deceased Sakamma on the pretext of getting an autorickshaw or a tractor from her father, he had answered in the positive. It is to be observed that PW-1 himself on his own accord, has not stated anything about dowry harassment meted to his daughter. Hence, we find that the court below has committed an error in not appreciating this evidence on record in a proper perspective.
PW-7 Deviramma, the mother of the deceased has stated in her examination-in-chief that at the time of marriage talks of her daughter and the accused, the accused Nagaraja had demanded Rs.10,000/- dowry and in turn, they gave Rs.8,000/- dowry even eight days prior to their marriage. Further, they had also given a gold ring to Nagaraja. It is to be noticed that PW-1 complainant has clearly stated that he had given only Rs.5,000/- as dowry to the accused whereas PW-7 mother of the deceased has stated that they gave Rs.8,000/- as well as a gold ring and wrist watch to the accused. There is inconsistency in the statements of both the husband and wife, who are vital witnesses to the case of the prosecution.
When PW-1 Siddaiah had not at all stated about the demand of tractor or autorickshaw by the accused in his examination-in-chief, PW-7 Deviramma has stated that the accused had demanded for a tractor or an autorickshaw and on that pretext, was ill-treating her daughter Sakamma. Regarding this aspect, PW-10, Puttasiddamma, elder sister of the deceased has also stated in her examination-in-chief about the demand of a tractor or an autorickshaw by the accused a few days prior to the incident. Hence, the evidence of PW-7 and PW-10 are inconsistent with the evidence of PW-1 the complainant.
Further, there is no specific evidence placed by the prosecution to prove the guilt of the accused. The court below has come to a conclusion that the accused has committed the murder of the deceased based on circumstantial evidence. But at a cursory glance of the evidence of PW1, PW7 as well as the evidence of PW15, 16, 19 and 20, their evidence appears to be contradictory to each other and it casts a cloud of doubt in the theory projected by the prosecution where the Trial Court has not appreciated the evidence of the prosecution in a proper perspective. The Trial Court has misdirected and misread the entire evidence on record and there is perversity in arriving at the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Therefore, the entire evidence on record requires to be re-
appreciated independently whether the accused had the intention to eliminate his wife deceased Sakamma who had given birth to a female child. In criminal jurisprudence, the offence alleged against the accused ought to be proved beyond all reasonable doubt by placing cogent, corroborative and acceptable evidence in order to convict the accused. If in case the court finds that there is doubt in the theory projected by the prosecution, benefit of doubt shall be extended to the accused, which is the cardinal principle of criminal justice system.
9. In the aforesaid context and in view of the contentions of the learned counsel for the appellant and the learned Addl SPP for the State, it is relevant to state that the case of the prosecution rests upon circumstantial evidence, that too on the evidence of PW1 Siddaiah, the father of the deceased and the author of the complaint at Exhibit P1. But, his evidence runs contrary to the evidence of PW7, mother of the deceased Sakamma. Further, their evidence is contradictory to the evidence of PW11, 12 and 13. These witnesses do not support the case of the prosecution to any extent as regards the statement said to be recorded by PW18 the Investigating Officer during the course of investigation. Though PW 2 and 5 are said to have been examined for the prosecution, they have been treated partially hostile to the case of the prosecution and they have been subjected to cross- examination by the prosecution. But their evidence is contradictory to the evidence of PW1, author of the complaint. There is no dispute that PW15 Doctor conducted autopsy over the dead body of Sakamma as per Exhibit P20.
10. Though it is alleged that the accused had used an electric water heater to cause injury on the cheek of Sakamma, but however, when PW-19 Investigating Officer in charge visited the scene of crime, he did not notice or find MO-8 Electric water heater lying near the dead body of Sakamma, nor in the house of the accused. PW-16 Taluk Executive Magistrate who held inquest over the dead body and issued a report as per Exhibit P13 also, did not notice MO-8 Electric water heater near the dead body or in the house of the accused. These two vital aspects casts doubt in the mind of the court regarding the truth in the allegation whether the accused had placed the electric water heater on the left cheek of the deceased and caused injury to her and made her unconscious and then had doused kerosene on her and set her ablaze. Further, PW-15 the Doctor who issued the post-mortem report as per Exhibit P20 has also stated in his examination-in- chief that he did not notice any injuries on the left cheek of the deceased and that in fact when he saw the body it was fully burnt. Hence, the allegation that the accused had used the electric water heater and caused injuries on her cheek, does not hold any water in effect.
11. Undisputedly the whole case rests upon circumstantial evidence and since there is no eye witness to the alleged act of murder, the trial Court has failed to consider the available evidence while deciding the merits of the case and the conviction shall not be based on such unacceptable evidence. It is a settled position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration. Further, every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. As noticed above, in the present case on hand, the conviction is based on circumstantial evidence as no one has seen the accused dousing kerosene on the deceased and setting her ablaze. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of events is complete and not to leave any doubt in the mind of the Court. In the facts and circumstances of this case, none of the circumstances relied upon by the prosecution is said to be the probability of the appellant's guilt or involvement in the commission of the crime.
12. Further, at a cursory glance of the material witnesses PW-1, PW-7 and PW-10 on the part of the prosecution to prove the guilt of the accused, we find that there is camouflage in the theory projected by the prosecution that the accused had caused the death of the deceased by dousing kerosene on her and setting her ablaze. The prosecution has not placed cogent, consistent, corroborative and acceptable evidence to probabilise that the accused had caused the death of the deceased and also had given physical as well as mental harassment and so also insisted the deceased to ask her father to provide an autorickshaw or a tractor from her parents. Since doubt has crept in the mind of the court, benefit of doubt always has to be in favour of the accused, which is the cardinal principle of criminal justice system. Therefore, for the aforesaid reasons and findings, we are of the opinion that the prosecution has not proved the guilt of the accused beyond all reasonable doubt by placing cogent, corroborative, consistent and acceptable evidence to probabilise that the accused had committed the murder of the deceased. Therefore, we are of the opinion that the accused deserves to be acquitted. Accordingly, we proceed to pass the following:
O R D E R The appeal preferred by appellant/accused under Section 374(2) Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence passed by the II Addl. Sessions Judge, Mysuru in S.C.No.107/2012 dated 26.02.2014 convicting the accused for the offences punishable under Sections 498A, 302 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, is hereby set-aside. The accused is acquitted of the charges levelled against him.
Accused is in judicial custody since from the date of his arrest. Therefore, the concerned Jail authorities are directed to set him at liberty forthwith, if he is not required in any other case.
Registry is hereby directed to intimate the concerned Jail Authorities to release accused from custody forthwith.
If the accused has already deposited any fine amount, the same is ordered to be refunded to him on proper identification and acknowledgement.
Sd/- JUDGE Sd/- JUDGE KS