IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 PRESENT THE HON’BLE MRS.JUSTICE K.S.MUDAGAL AND THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.580/2012 BETWEEN :
Suresh @ Gurumurthy S/o Ramesh Aged about 36 years Occ: Coolie R/at Chikka Agrahara Village N.R. Pura Taluk.
(By Sri P. Nishan Unni, Advocate) AND :
The State of Karnataka By N.R. Pura Police.
… Appellant … Respondent (By Sri Vijaykumar Majage, Addl. SPP) This criminal appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and order of conviction and sentence dated 26.12.2011/28.12.2011 passed by the Additional Sessions Judge, Chikmagalur in S.C.No.14/2009 convicting the appellant/accused for the offences punishable under Section 302 of Indian Penal Code.
This criminal appeal having been heard, reserved for judgment on 23.09.2017 and coming on for pronouncement of judgment, this day, B.A.Patil, J., delivered the following:-
J U D G M E N T The present appeal is preferred by the accused, assailing the judgment and order of conviction & sentence dated 26/28.12.2011 passed by the Additional Sessions Judge at Chikmagaluru, in SC.No.14/2009.
2. The genesis of the case as per the prosecution is that on 10.10.2008 at about 10.00 p.m., accused- appellant herein picked up quarrel with the deceased Smt.Gowramma in respect of loan raised by them for constructing a house under “Ashraya” Scheme. During the said quarrel accused poured kerosene and set her ablaze with an intention to commit her murder, as a result of which she sustained burn injuries. She was shifted to Government Hospital, Koppa, on the next day morning and subsequently on 12.10.2008 at about 3.45 p.m., she succumbed to the burn injuries. On the basis of the complaint, case was registered against the accused and after completion of investigation, charge sheet came to be filed against the accused. After filing of the charge sheet and after following the procedure laid down under Section 207 of Cr.P.C., the committal Court committed the case. Thereafter, the Sessions Court took the cognizance and after hearing the accused before charge, framed the charge to which the accused pleaded not guilty and claimed to be tried.
3. In order to prove its case, the prosecution in all has examined eighteen witnesses as per PWs.1 to 18 and marked twenty-one documents as per Exs.P1 to P21 and MO.Nos.1 to 4. On behalf of the accused, no evidence was led. Thereafter, the statement of the accused came to be recorded under Section 313 Cr.P.C.
by putting incriminating materials against him. After hearing the learned counsel for the accused and the learned Public Prosecutor, the trial Court passed the impugned judgment convicting the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment. Against which, the accused has filed the present appeal.
4. We have heard Sri Nishan Unni P., learned counsel who has been appointed by the Karnataka Legal Services Authority to appear on behalf of the appellant- accused and to assist the Court and Sri Vijaykumar Majage, learned Additional SPP appearing on behalf of the respondent-State.
5. Learned counsel for the appellant-accused has contended that the dying declaration is not recorded in the form of question and answer as per the decision of this Court in the case of State of Karnataka Vs. Shivaraj & others, reported in 2002 Cri.L.J. 2493.
The dying declaration at Ex.P6 does not disclose the endorsement of the doctor who attended the patient certifying that the injured Gowramma was in a fit state of mental condition to give her statement as per Ex.P6. There is no consistency between Ex.P6 and the evidence of PW.11 who recorded Ex.P6. He has also contended that the injured was treated with sedative drugs because of the burn injuries sustained by her and even the doctor who got admitted her has also deposed to the said effect and even during the course of cross-examination, the doctor has admitted that the deceased Gowramma was semi-conscious and was speaking in a feeble voice. Under the said circumstances, Ex.P6 cannot be considered to be a dying declaration under Section 32 of the Indian Evidence Act. It is his further contention that though PWs.1, 2, 6 and 7 are the eye witnesses to the incident in question, on perusal of their evidence, it makes clear that presence of the said witnesses is doubtful at the place of incident. He has further contended that there was no motive for the accused to pour the kerosene on the deceased and set her ablaze. The suicidal death has been converted into a case under Section 302 of IPC. In the absence of the motive, the trial Court ought to have acquitted the accused. Though the alleged incident has taken place on 10.10.2008, the FIR has been delivered on 11.10.2008. The said delay has not been considered and appreciated by the trial Court. On these grounds, he requests for allowing the appeal and prays for acquittal of the appellant-accused.
6. Per contra, the learned Additional SPP appearing for the respondent-State has vehemently argued and contended that PWs.1, 2, 6 and 7 are the eye witnesses to the crime. They are the residents of the same locality, immediately after hearing the hue and cry they have come out of the house and seen the accused with burn injuries and saw the deceased Gowramma on fire. Immediately thereafter, they poured the water and extinguished the fire. Under the circumstances, the presence of these witnesses is natural and probable and hence it cannot be doubted. PW.2 and other witnesses have also specifically deposed that there was a quarrel between the accused and the deceased in respect of the loan of Rs.20,000/- borrowed from PW.5 and in that background the accused poured kerosene on the deceased and lit the fire. There is corroboration in the evidence of PWs.1, 2, 6 and 7 and also with reference to the dying declaration at Ex.P6. The trial Court after considering all the material on record has rightly convicted the accused and as such he prays for dismissal of the appeal.
7. As aforementioned, the prosecution has examined PWs.1 to 18 to prove its case. PW.1 is an eye witness and he is also a witness to the spot mahazar at Ex.P1. He has deposed that after hearing the screaming voice, at about 9.00 or 9.30 p.m. on the date of the incident, he came out of his house and found Smt.Gowramma in front of her house. At that time, CW.9-Bobaiah, CW.8- Puttaiah, CW.7-Halamma and CW.5-Manjunatha who were present near the place of incident, extinguished the fire. He has further deposed that Smt.Gowramma sustained burn injuries on her face, chest, back and on her hands. By the time he went there the accused-Suresh ran away from the scene of offence. When he asked Gowramma, she told that accused- Suresh set her ablaze. Though PW.1 has been cross- examined at length, nothing has been elicited so as to discard the evidence of this witness.
8. PW.2 is also an eye witness to the incident in question. He is also a witness to the inquest mahazar at Ex.P2. He has deposed that at about 9.30 p.m. on the date of incident, after having his dinner he slept in his house and at that time, he heard a screaming voice of Smt.Gowramma. Thereafter, he went to the house of Gowramma and at that time, he saw her on fire. CW.7- Halamma, CW.8-Puttaiah and CW.9-Bobaiah were present there and they were trying to extinguish fire. He also joined them to extinguish fire. At that time, PW.1 Ganesha also came. He has further deposed that when he went to the house of Gowramma, accused was also present at the place of incident and he also sustained the burn injuries as he lit fire. Thereafter, accused went out of his house. PW.2 was under the impression that accused might bring vehicle, but he did not do so. PW.2 has also deposed that on the next day morning, himself and Bobaiah took the injured Gowramma to Government Hospital at Koppa and got her admitted. On the same day, while she was under treatment, she succumbed to the injuries. He has also deposed about the injuries found over the body of the deceased. PW.2 has also deposed about the quarrel between the accused and the deceased for having raised the loan. During the course of cross-examination, it has been elicited that when he had been to the place of incident after hearing the screaming voice within five minutes, CW.9-Bobaiah, CW.8- Puttaiah and CW-2 Manjunath were present near the place of incident. By the time he went there, except the above three persons, no other persons were present. Except this, nothing has been elicited from the mouth of this witness.
9. PW.3 is a pancha to Ex.P1, the spot mahazar. He has deposed that he was called by the police at about 4.15 to 5.00 p.m. near the house of Gowramma and at the place of incident they drew the mahazar and also seized matchbox, match stick, burnt cloth and a can as per Ex.P1. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness.
10. PW.4 is the younger sister of the deceased Gowramma. She has deposed that after coming to know each other, deceased and the accused started living together and three children of Gowramma also used to stay along with them. She has further deposed that her nephew Annappa informed that Gowramma sustained burn injuries and has been admitted to Hospital at Koppa. Immediately she rushed to the hospital and saw Gowramma with burn injuries on her chest, face, back and both the hands. When she enquired with Gowramma as to how she sustained such injuries, she wailingly replied that she should save her and told that on previous night accused Suresh poured the kerosene and lit the fire. She has further deposed that because of raising the loan for purpose of construction of the house there used to be quarrel between the accused Suresh and the deceased since 2-3 days. At that time deceased was opening her eyes, was speaking well and also taking the food and she used to walk with somebody’s assistance. She has further deposed that on the same day she died in the hospital. At that time police enquired her and her statement was recorded by them as per Ex.P3. On the basis of the said statement, complaint came to be registered. During the course of cross- examination of this witness, except the fact that after she went to the hospital, next day at about 3.00 a.m. deceased Gowramma died and the same was informed by the doctor, nothing has been elicited so as to discard the evidence of this witness.
11. PW.5 is the witness from whom the accused and the deceased borrowed loan of Rs.20,000/-. He has deposed about advancing of loan of Rs.20,000/- to accused as well as to the deceased Gowramma for the purpose of construction of the house. He came to know that Gowramma died because of the burn injuries and there was a quarrel between the accused and Gowramma. During the course of cross-examination it has been elicited that for having given the loan of Rs.20,000/- no written document has been executed and he has not maintained any records showing that the accused was working as coolie in his house.
12. PW.6 is an eyewitness who has deposed that his house is situated opposite to the house of deceased Gowramma and by the side of his house, the house of CWs.7 and 8, his parents is situated. He has further deposed that about three years back at about 9.00 p.m. when he was sleeping in his house he heard the galata from the house of deceased Gowramma. There was quarrel between the accused and the deceased Gowramma and at that time her three children were not there in the house. They constructed a house under Ashraya Scheme by raising the loan and in that context there was quarrel between them. He has further deposed that at about 10.00 p.m. after hearing the screaming voice, himself, his father Puttaiah-CW.8, his mother Halamma-CW.7 came out of the house and saw Gowramma in front of her house on fire and accused by pouring the kerosene and lighting the fire. He has further deposed that by taking the kerosene can from the old house accused poured the kerosene on Gowramma and lit the fire and as a result of which she sustained burn injuries. PW.6 has further deposed that himself, his father Puttaiah-CW.8 and CW.5-Manjunath extinguished the fire by pouring the water. At that time, the accused was standing and seeing the same. Accused had sustained burn injuries on his hands when he lit the fire. After extinguishing the fire, when they saw, the accused had disappeared. Thereafter, CW.2 Ganesha came there. Though they tried to shift Gowramma to the hospital, as they could not get any vehicle, Gowramma was in the house of PW.6 at that time she was telling about burning sensation and on the next day at about 6.00 a.m., they took Gowramma to the hospital at Koppa in an autorikshaw and got her admitted. But on the next day, she died. During the course of cross-examination it has been elicited that there was no panchayath held in respect of the quarrel of the accused and deceased Gowramma and no complaint was registered. Except that nothing has been elicited so as to discard the evidence of this witness.
13. PW.7 is the father of PW.6. He has also reiterated the evidence of PW.6.
14. PW.8 is the son of Gowramma through her first husband. He has deposed that when he enquired his mother Gowramma as to how the incident happened, she told that there was a quarrel between accused and herself because of the loan raised for construction of house and on the date of incident accused with an intention to kill her, poured the kerosene and lit the fire. During the course of cross-examination of this witness nothing has been elicited so as to discard his evidence.
15. PW.9 is the Junior Engineer who prepared the sketch of scene of offence as per Ex.P4; PW10 is the pancha to inquest mahazar at Ex.P2.
16. PW.11 is the Head Constable who received the wireless message and thereafter as per the instructions of higher authorities he went to hospital and after obtaining the consent of the doctor-PW.18 has recorded the dying declaration of the deceased Gowramma as per Ex.P6. He has deposed that he went to the Government Hospital, Koppa on 11.10.2008 at about 12.00 Noon and saw Gowramma taking treatment for burn injuries in Women Ward. She sustained burn injuries on her face, chest and hands. In order to record her statement, he consulted Dr.Ramachandrappa who in turn told that Gowramma is in a position to give her statement and he also accompanied him to the said Ward. In the presence of the said doctor, he recorded the statement of the deceased Gowramma between 1.00 p.m. and 1.45 p.m as per Ex.P6 and thereafter, the said statement was read over to her and she put her thumb impression on Ex.P6. He has also signed the said statement at P6(b) and the doctor has also signed at Ex.P6(c). He has also deposed that the deceased Gowramma told him that on 10.10.2008 at about 10.00 p.m. accused Suresh @ Gurumurthy quarrelled with her in relation to construction of the house and having taken loan of Rs.20,000/- and during such quarrel, accused Suresh went out to bring the kerosene can. At that time she came out of the house and by that time, accused Suresh poured kerosene on her and lit fire. During the course of cross-examination, it has been elicited that there is no endorsement in Ex.P6 certifying that the deceased was capable of giving her statement. Except that nothing has been elicited from the mouth of this witness.
17. PW.12 is the CPI who sent PW.11 to record the statement of the deceased Gowramma. He also registered the case on the basis of the complaint at Ex.P3.
18. PW.13 is the CPI who conducted further investigation and filed the charge sheet.
19. PW.14 is the Secretary of Gram Panchayat who issued the property extract of property bearing No.343A/82 as per Ex.P14.
20. PW.15 is the ASI who sent the requisition to include Section 302 of IPC.
21. PW.16 is the doctor who conducted autopsy of the dead body of the deceased Gowramma and issued postmortem report at Ex.P13. During the course of cross- examination, it has been elicited that normally if a person himself pours the kerosene and lit the fire, the injuries mentioned may be caused. It has been further elicited that there was no food in the intestine of the deceased.
22. PW.17 is the Dy.S.P. who was working as a Circle Inspector and partly investigated the case.
23. PW.18 is the doctor who got admitted the injured Gowramma with the history of burn injuries. During the course of cross-examination it has been elicited that when Gowramma was first seen, she was semi-conscious and at that time she was speaking little bit. Except that nothing has been elicited from the mouth of this witness.
24. It is the specific contention of the learned counsel for the appellant-accused that the dying declaration recorded as per Ex.P6 is not in question and answer form and it has not been certified by the doctor who was incharge over the patient certifying that the patient was in a fit state of mental condition to give her statement. As could be seen from the evidence of PW.11 the Head Constable, he has deposed before the Court that as per the direction of PW.12, he went to Government Hospital, Koppa and made enquiries with Dr.Ramachandra-PW.18 who in turn informed PW.11 that the patient is in a fit mental condition to understand the questions and to answer them by giving her statement. Thereafter, PW.11 has recorded the statement as per Ex.P6. On careful perusal of Ex.P6, it indicates that though it is recorded in the handwriting of PW.11, there is no endorsement of the doctor who was incharge of the patient Gowramma and even there is no certification that the patient is physically and mentally fit to give such statement. Ex.P6, is written in a narration form and not in the question and answer form so as to come to the conclusion that PW.11 has put the questions and after ascertaining the answers, he has recorded the same. In the absence of such material and without there being any certification of the doctor about the condition of the patient, it is very difficult for this Court to rely upon Ex.P6 and to hold that the said dying declaration is acceptable so as to bring home the guilt of the accused beyond all reasonable doubt. In this behalf, there is force in the argument of the learned counsel for the appellant.
25. PW.5 has clearly deposed that he has advanced a loan of Rs.20,000/- to the accused and the deceased Gowramma for the purpose of construction of a house under Ashraya Scheme. He has also deposed that there was a quarrel between the accused and the deceased in relation to raising of the said loan. Even the evidence of PW.2 also clearly indicates that there used to be quarrel between the accused and the deceased in relation to raising of the loan for construction of house under Ashraya Scheme. As could be seen from the evidence of PWs.1, 2, 5 and 6 who are neighbourers of the deceased have categorically deposed that they heard the screaming voice and immediately thereafter they came out of the house and saw the accused and deceased quarrelling and accused bringing kerosene can from the house, pouring the kerosene on the deceased and setting her ablaze. Though the learned counsel for the appellant contended that the presence of these witnesses is doubtful, when they are the neighbourers of the deceased and they also extinguished the fire, when they saw Gowramma making hue and cry because of ablaze and thereafter they tried to take her to the hospital and as there is no conveyance facility, they took her to the hospital and admitted on the next day morning, their presence at the place of incident cannot be doubtful at all. On careful perusal of the evidence of these witnesses there is corroboration and consistency with regard to the presence of the accused at the place of incident and he pouring the kerosene and lighting the fire. This aspect has also been corroborated by the fact that the accused was admitted with burn injuries to his hands. Accused has not explained as to how he sustained the said injuries to his hands. Even he has not given any explanation in the statement recorded under Section 313 of Cr.P.C in respect of the said injuries. The prosecution has established that an amount of Rs.20,000/- was borrowed from PW.5 and there was quarrel between the deceased and the accused in respect of raising of the said loan and there are eye witnesses to the alleged incident. Even during the course of cross-examination of these witnesses, nothing has been elicited so as to discard their evidence. Though the prosecution has failed to prove the dying declaration at Ex.P6, it has proved that there is consistency in the evidence of PWs.1, 2, 4, 5 to 7 to show that there was a motive behind the act of the accused and in furtherance of the said motive, on the date of the incident, accused poured the kerosene on the deceased and set her ablaze, due to which deceased Smt.Gowramma sustained burn injuries and subsequently she succumbed to the said injuries.
26. In so far as the contention of the learned counsel for the appellant that the death of Smt.Gowramma is suicidal death is concerned, the evidence which has been produced by the prosecution clearly indicates that the accused only has poured the kerosene on the deceased and set her ablaze. Even the evidence of the eye witnesses who have categorically deposed about the presence of the accused and immediately after the incident he absconded, clearly shows that it is the accused who is responsible for the death of the deceased Gowramma. Though during the course of arguments, it is brought to the notice of the Court by the learned counsel for the appellant that there are some discrepancies in the evidence of the witnesses, the said discrepancies are only minor and they would not affect the case of the prosecution and the evidence produced by the prosecution does not create any doubt so as to give the benefit of doubt in favour of the accused. The entire evidence placed before the trial Court points out the guilt of the accused beyond all reasonable doubt.
27. If really Smt.Gowramma committed suicide as contended by the learned counsel for the appellant, the accused in the ordinary course would have taken her to the hospital reported the matter to police. But the evidence which has been produced by the prosecution clearly goes to show that immediately after the incident, accused absconded and even he never come to the hospital to see the deceased. In this behalf there is corroboration with reference to the conduct of the accused to the alleged crime. Looked from any angle, the evidence which has been placed before the trial Court clearly indicates that it is the accused who has committed the alleged offence and as such, the judgment and order of conviction and sentence passed by the trial Court is sustainable in law. Though no reasons are assigned in detail by the trial Court while coming to the conclusion for conviction of the accused, since this Court is the first appellate Court, on re-appreciation of the evidence on record, it is clear that the prosecution has proved its case beyond reasonable doubt.
28. We have carefully and cautiously perused the records, including the impugned judgment. We find that the appellant has not made out any case so as to interfere with the same. Hence, the judgment and order of conviction and sentence passed by the trial Court is confirmed.
Hence, the appeal fails and accordingly, the same stands dismissed.
Sd/- JUDGE Sd/- JUDGE *ck/-