IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 9TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.702 OF 2013 BETWEEN:
STATE OF KARNATAKA BY BETTADAPURA POLICE STATION. ... APPELLANT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR) AND:
VENKATESH SON OF LATE DASAIAH AGED ABOUT 49 YEARS PERMANENTLY RESIDING AT CHENNENAHALLI KOPPALU GRAMA PERIYAPATNA TALUK NOW RESIDING AT MEDAR BLOCK PERIYAPATNA TALUK-571 107. ... RESPONDENT (BY SRI. C.S. PREM KUMAR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DATED 27.08.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, MYSURU IN SESSIONS CASE NO.237/2011 – ACQUITTING THE RESPONDENT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.06.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed against the judgment of acquittal dated 27.08.2012 passed in SC No.237/2011 on the file of Fast Track Court at Hunsur, Mysore District.
2. The factual matrix of the case is that on 29.05.2011 at about 10.00 a.m., when the deceased – Rathnamma @ Shambavi told to the accused to go to the shop and to bring kerosene. Accused picked up quarrel with her and told her to bring kerosene. Then, accused being angered told to the deceased he would pour kerosene on her and the deceased poured the kerosene on herself. Taking the advantage of the situation, the accused, in order to commit the murder of the deceased, lit the fire by opening the matchbox. Due to same, she has sustained burn injuries. The deceased, in order to save herself, came out from the house, went to nearby ditch and tried to extinguish the fire. By seeing the same, the neighbours came to rescue of the victim and extinguished the fire. At the first instance she was admitted to Periyapatna Hospital and thereafter, shifted to K.R.Hospital, Mysore for further treatment. She succumbed to the injuries on 01.06.2011 at about 8.50 p.m.
3. The police registered a case against the accused based on the statement of the injured and also called the Tahsildar to record the statement of the injured. Accordingly, the statement was recorded and she informed the Medical Officer that her husband only set fire on her. The Investigating Officer after recovering the matchbox at the instance of accused, filed the charge sheet for the offence punishable under Section 302 of Indian Penal Code.
4. The prosecution, in order to establish the guilt of the accused, relied upon the evidence of P.Ws.1 to 20 and got marked Exs.P.1 to 20 and M.Os.1 to 6. The accused did not choose to lead any defence evidence and got marked Exs.D.1 to 3. The Court below recorded the statement of the accused under Section 313 of Cr.P.C. After hearing both prosecutor as well as the defence counsel, the trial Court acquitted the accused of the charges levelled against him.
5. Being aggrieved by the judgment of acquittal, the State has filed the present appeal and would contend that the deceased has suffered burn injuries on 29.05.2011 and died on 01.06.2011. In the meanwhile, the statement was recorded and dying declaration was made before Investigating Officer as well as Tahasildar and the same has not been considered by the trial Court. The trial Judge has erroneously come to a conclusion that the deceased had sustained 92% burn injuries, though the deceased had sustained 70% of burn injuries. It is further observed that she was not in a position to give her statement and the said finding is erroneous. The trial Judge also failed to take note of the fact that the person who is on a death bed, would not implicate an innocent person and in her dying declaration, she has clearly implicated the accused that he only set the fire on her. In spite of convincing evidence before the Court, particularly in respect of dying declaration and also the evidence of P.Ws.1 to 3, the Court below has committed an error in acquitting the accused. Hence, the judgment requires interference of this Court.
6. The learned Additional SPP, Sri.I.S.Pramod Chandra, in his arguments, would contend that the Court below erroneously did not consider Exs.P.16 and 18 i.e., dying declaration of the deceased, which has been recorded in the presence of the Doctor, who has been examined as P.W.17. The trial Judge has given more importance to the minor discrepancies. It has come to the conclusion that dying declaration – Ex.P.18 is not in handwriting of the Tahasildar. The Tahasildar, who has been examined before the Court, has categorically deposed that the same was written by his staff. The trial Court has given more importance to the colour of the ink, which was found on the document and hence, the same is erroneous. Hence, it is a fit case to reverse the finding of the trial Court.
7. Per contra, learned counsel appearing for accused, in his arguments, vehemently contended that the Court below while considering the evidence available on record in page Nos.14 to 16 elaborately discussed particularly the dying declaration statements, which has been recorded by P.W.14 under Ex.P.18 as well as the statement recorded by P.W.16 as per Ex.P.16, which loose its credibility. The trial Judge has also observed that the deceased sustained 92% burn injuries. Further, he would contend that no substantial material is produced that accused only set fire. None of the witnesses have spoken with regard to the very presence of the accused at the time of incident. Accordingly, he prayed this Court to dismiss the appeal since there are no grounds to reverse the finding of the trial Court.
8. Having heard the arguments of learned counsel for appellant/State and also defence/accused. This Court has to re-appreciate the evidence available on record. After perusing both oral and documentary evidence, the point that would arise for our consideration is:
Whether the Court below has committed an error in acquitting the accused for the charges leveled against him under Section 302 of Indian Penal Code?
9. The fact that the accused and the deceased were staying together in a rented premises is not in dispute. Now, the consideration before the Court is whether the prosecution has proved by placing cogent evidence before the Court that the accused only set fire on the victim.
10. The prosecution, in order to prove the same, relied upon the evidence of P.Ws.1 to 3, P.W.14 – Tahasildar who recorded the statement of the victim and also P.W.16 – Inspector who recorded the statement of the victim in the presence of Doctor – P.W.17 who gave the treatment at the first instance and thereafter, referred the injured/victim to the higher centre for further treatment. The other witnesses are formal witnesses with regard to the seizure of matchbox and conducting of spot mahazar, inquest and assisting the Investigating Officer to investigate the matter.
11. The learned counsel appearing for the State Sri.I.S.Pramod Chandra would contend that P.Ws.1 to 3 have witnessed incident of set the fire on the victim and thereafter, they shifted the injured to the hospital. Now, let us see the evidence of prosecution.
12. P.W.1 is the owner of the premises, in which both accused and deceased were staying. P.W.1 says that both used to quarrel frequently. When he found both of them quarreling with each other, asked them to vacate the premises. Accused was addicted to consume the alcohol. The deceased agreed to shift the house of Hulsawadi and the accused was insisting the victim not to vacate the house. On the date of incident, the deceased went to bring the kerosene and thereafter, when she came back, again galata started between them. Accused told the deceased to pour kerosene on herself and when she poured the kerosene, the accused set the fire and the deceased came out from the house trying to extinguish the fire fell on the ditch and the same was witnessed by Vahab, Abhida, Rafi, Sadhik and Hazeera, who by using the blanket, extinguished the fire and thereafter, called ambulance and shifted to Periyapatna Hospital. On enquiry, the victim has revealed that her husband only set the fire, when she poured the kerosene on herself as told by her husband.
13. In the cross-examination, it is elicited that there was galata in the house and before bringing the kerosene, they went and pacified both of them. The house is situate at the distance of 200 feet from his house. Thereafter, he was taking the breakfast in his house, when he went wash his hand, at that time, he saw through the window that the deceased came out from the house with a fire and fell on the ditch trying to extinguish the fire. The accused though was in the habit of consuming alcohol, on the date of incident, he had not consumed alcohol. This incident has taken place after bringing the kerosene from the Fair Price Shop and hence, it is clear that he did not witness the fact of setting the fire by the accused on the victim. But, he claims that prior to the incident, he went and pacified the galata and only saw the victim when she came out from the house. It is not his evidence that he witnessed the accused at the spot at the time of incident.
14. The prosecution relies upon the evidence of P.W.2 and other witnesses, she is the wife of P.W.1 and she also reiterates the same in the line of the evidence of P.W.1. She also says that she instructed them to vacate the house. When she found the people near the Masjid, she went to spot. She claims that when she was enquired, victim told that her husband only set the fire and explained that her husband told her to pour the kerosene on herself. When she poured the kerosene on her, he set the fire. In the cross-examination, it is elicited that the house is situate in between six to eight houses of the witnesses. She admits that they were unable to hear any galata or loud voice from the house of the accused. She admits that she was inside the house on that day and she did not come out from the house, when the alleged incident had taken place. She admits in the cross-examination that Shambhavi did not tell anything about the incident to her. But, she claims that accused was addicted to alcohol and cigarette. On perusal of the evidence of P.W.2 also, it is clear that she has not witnessed the incident of setting the fire on the victim by the accused. She came to spot only seeing the persons who have gathered near the Masjid and it is also specific that deceased did not tell anything to her.
15. The other witness P.W.3 is also neighbor. He claims that the deceased came out from the house screaming to save her and fell on the ditch and immediately, himself, Sadik, Rafi and others saved her and called ambulance and sent her to hospital in ambulance. But, he claims that prior to setting the fire, the deceased was telling her husband to bring the kerosene. The accused was answering let herself go to bring the kerosene. He identifies the accused and claims that mahazar was drawn in terms of Ex.P.1. In the cross- examination of P.W.3, it is suggested that both the accused and deceased were cordial and the same was denied. P.W.3 also says that the deceased used to go to work and accused was not going to work everyday. It is suggested that, he did not hear the galata between the deceased and accused and he was not there in the house when the deceased came out screaming and these suggestions are denied. He also did not witness the presence of the accused and setting the fire.
16. P.W.4, the other circumstantial witness says that he was taking breakfast in the early morning and heard the screaming sound outside the house. When he came out, the injured was lying and the fire had extinguished with rug. He has only witnessed her shifting to the hospital and he cannot tell how she contacted the fire. This witness was cross-examined by the Public Prosecutor suggesting that she made the statement that her husband only set the fire and the said suggestion was denied. He admits that he heard the screaming sound. In the cross-examination by accused counsel, it is elicited that he cannot tell, who set the fire to whom. Hence, it is clear that P.W.4 also did not witness the accused setting fire on her.
17. The other significant witness in respect of the case of the prosecution is P.W.14, who is the Tahsildar. In his evidence, he says that he recorded the statement of the injured, after confirming with the doctor that she is in a fit position to give statement. He relies upon Ex.P18 and took the impression of left big toe since both the hands were burnt. In the cross-examination, he found that the injured was tired and she was screaming. It is suggested that she was not in a position to speak and the same was denied. He admits that he did not mention on Ex.P.18 that his staff Dhanraj wrote the same. He further admits that he did not know reading and writing kannada and he did not write the same. It is suggested that he did not visit the hospital and recorded the statement of the injured.
18. P.W.16 is the Police Sub-Inspector. In his evidence, he says that based on the intimation of the doctor, he went to hospital and recorded the statement of the injured. He identified his signature in Ex.P.16. In his further evidence, he says, he apprehended the accused, recorded the statement of witnesses, drew the mahazar and recovered the matchbox at the instance of the accused. He seized the Mahazar as per Ex.P2. In the cross-examination, he says that the injured was in a position to give statement, but he felt that she may not live. There was no difficulty to secure the Tahsildar before recording her statement. The entire body was burnt. However, she was in a position to give statement. He did not subject the first husband of the deceased for any enquiry but, he claims, he did not assist him.
19. P.W.17 is the Doctor, in whose presence according to the prosecution, statement of the injured was recorded. P.W.17 says, on enquiry, the injured revealed that her husband set the fire and immediately, she gave intimation. Police came and recorded the statement in her presence in terms of Ex.P.16 and also in terms of Ex.P.18 by the Tahsildar. In the cross-examination, she admits that in the Medico Legal Case normally, the name of the person, who brings the injured will be mentioned in the register maintained for the said purpose, but, in the instant case it is not mentioned. Further admits that she found 70% of the burn injuries. Though there was no instrument or equipment to provide the treatment to the burn injuries, she did not tell the persons to take her immediately to K.R. Hospital. After recording of statement by the Tahsildar and Police, she told to shift her to K.R.Hospital further treatment. She further admits that either the Police or the Tahsildar did not ask her whether the injured is in a position to give statement either oral or in writing. It is suggested that left big toe impression on Ex.P18, did not belong to the injured and the said suggestion was denied.
20. Now let us examine the evidence of P.Ws.14, 16 and 17, who have recorded the dying declaration of the deceased in terms of Exs.P.16 and P.18. It is important to note that, it is evident in the document Ex.P.19 that the injured was shifted to hospital at 11.00 a.m. and incident has taken place at 10.00 a.m. On perusal of Ex.P.19, Medico Legal Case record, the case history discloses as self burnt at 10.00 a.m. Though this document is marked through P.W.17-Doctor, no question is put either by the defence or by the prosecution regarding the history is concerned. It is pertinent to note that, it is the case of the prosecution that the accused only set the fire when the victim herself poured kerosene on her. The very document Ex.P19 discloses that the injured was taken to hospital at 11.00 a.m. and history is mentioned as self burnt at 10.00 a.m.
21. The other documents that the prosecution has relied upon is Exs.P.16 and P.18. On perusal of Ex.P.16, it is mentioned that the statement of the injured was recorded between 11.20 a.m. to 11.50 a.m. But, here there is an improvement that the injured made the statement saying that her husband set the fire and there is no endorsement on Ex.P16 that the injured was in a position to give statement, except the attestation by the Doctor - P.W.17. No doubt, certificate is not mandatory, but at least there must be an endorsement on Ex.P16 that injured was in a position to make the statement. Ex.P18 the statement recorded by the Tahsildar, bears his signature and also signature of the Doctor - P.W.17. The Court below did not accept the documents at Exs.P.16 and P.18 on the ground that there was no endorsement by the Doctor regarding her fit condition to make the statement. While referring Ex.P.18, the discussion was made that the ink in which the Tahsildar has signed is in green ink and the contents of Ex.P18 is in blue ink and therefore, did not rely upon this document. It appears that there is an error committed by the trial Court and in the cross-examination of P.W.14-Tahsildar, he categorically says that the same was written by his staff - Dhanraj. Hence, there is an explanation on the part of the Tahsildar. But, the very recording of the statement of the injured appears to be doubtful. The timings as mentioned in Exhibit P.18 is 11.45 a.m. to 12.15 p.m. It is pertinent to note that P.W.17, in her cross-examination, she admits that she did not mention anything about her condition whether she is in a fit condition to make the statement or not. In the cross- examination, she says that both the Police as well as the Tahsildar did not ask about her condition either in writing or in oral. P.W.14-Tahsildar says, he asked the Doctor, whether she is in a fit condition to make statement and only on the confirmation of P.W.17 that she is in a position to make the statement, he recorded the statement of the injured. There is no explanation on the part of the prosecution regarding the entry made at 11.00 a.m. When the injured was shifted to hospital in terms of Ex.P19, it is specifically mentioned she has self burnt at 10.00 a.m. It is pertinent to note that P.W.17 claims that she enquired the injured when she was taken to the hospital, she revealed that her husband set the fire. There is no explanation on the part of P.W.17 that why she has mentioned the same as self burnt at 10.00 a.m. Having taken into consideration the contents of Ex.P19 and also the contents of Exs.P16 and P18, it is nothing but an improvement by the prosecution that the injured herself revealed that accused only set the fire.
22. Having considered all these materials, that too, particularly Ex.P19 clearly shows that she has self burnt and also in the case on hand, it is clear that the deceased herself poured the kerosene, it is the case of the prosecution that accused told her to pour kerosene on herself and at that time, the accused set the fire. With regard to this, there is no cogent evidence and the same is only a presumption. P.Ws.1 to 3 have not stated that they have witnessed the same.
23. It is important to note that though the prosecution relies upon the evidence of P.Ws.1 to 3 that accused only set the fire, all of them categorically admit that they did not witness setting of the fire by the accused but, they came to the spot only after hearing screaming sound of the deceased. P.W.1 categorically admits that when he rushed to the spot, the deceased was lying in the ditch making an attempt to extinguish the fire and the witnesses P.Ws.1 to 3 categorically say that they were not at the spot. Hence, there is no cogent evidence before the Court that the accused only set the fire on the deceased. There is no explanation on the part of the prosecution that why she got poured the kerosene on her and only P.W.1 says that he went to the house of accused and deceased and pacified the galata.
24. Having taken note of the entry made in Ex.P19 regarding self burns at 10.00 a.m. in the house, it is clear that the deceased herself set her on fire by pouring the kerosene. There is nothing on record to implicate the accused with the crime and the same has not been witnessed by any of the witnesses, though the prosecution made an attempt to prove the case that P.Ws.1 to 3 have witnessed the accused at the spot no material. Apart from that, the entry found at the first instance at 11.00 a.m. makes it clear that the deceased has self-burnt and thereafter, an improvement was made in terms of Exs.P16 and P18 and the very evidence of the Doctor that in her presence the statement of the injured was recorded by the Police and the Tahsildar cannot be accepted. P.W.17 did not dispute the entry made in Ex.P19 and no explanation is offered by P.W.17 that it is mentioned the same as self burnt. Though learned counsel for the accused did not dispute the same, this Court cannot ignore the same. It is not the case of the prosecution that accused took the injured to the hospital and he gave the history. But, the records reveal that the surrounding people i.e., the neighborers shifted the injured securing the ambulance to the Periyapatna Hospital. Hence, considering the meticulous evaluation of both oral and documentary evidence, we do not find any incriminating material to connect the accused to this incident. No doubt the witnesses have deposed that accused and his wife used to quarrel regularly and that does not mean that this accused has set the fire to the deceased.
25. No doubt, the Additional State Public Prosecutor in his arguments vehemently contended that though burn injury is only 70% and the records also reveal the same, the learned Trial Judge while appreciating the evidence held that there are 92% burn injuries. On perusal of the post mortem report which is marked as Ex.P10, it is mentioned as 92%. It appears that the learned trial Judge was carried away by the observation of the doctor that infected burns are 92%. Hence, the reason assigned by the learned trial Judge that she sustained burn injuries 92% is not well founded. Taking into account both the oral and documentary evidence available on record, we do not find any reasons to reverse the findings of the trial Court except, certain anomalies found in considering the percentage of the burns, the observation about the colour of the ink used for preparing Ex.P18 by the Tahsildar and lapse on the part of the prosecution in not examining the scribe of Ex.P18 before the Court.
26. Having considered the material available on record and also keeping in view the contentions of the counsel appearing for the State and defence counsel, we are of the opinion that there are no good grounds to interfere with the order or the trial Court to reverse the same. The prosecution utterly failed to prove the case that the accused only set the fire and there are no eye witnesses. Though the prosecution claimed that P.Ws.1 to 3 are eye witnesses, in view of the answers elicited in the cross-examination, they are not the eye witnesses but they are only circumstantial evidence that too, when the injured came out screaming to save her, all of them came to spot and extinguished the fire and shifted the injured to the hospital. There is no material before the Court that the accused was at the spot when the incident took place and P.Ws.1 to 4 have not stated that they witnessed the accused at the spot when the injured came out from the house.
27. Having considered all these and also particularly, Ex.P19, it creates doubt in the case of the prosecution and the evidence adduced before the Court did not inspire the confidence of the Court to come to other conclusion and benefit of doubt goes in favour of the accused.
In view of the discussions made above, we pass the following;
ORDER The criminal appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE akc/st/NBM