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CRL.A No. 100268 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100268 OF 2020 (C)
BETWEEN:
ILLYASAHAMAD S/O BABUSAB SHIRALLI
AGE: 40 YEARS, OCC: MECHANIC,
R/O: CHIKKERUR KUMBAR ONI,
TQ: HIREKERUR, DIST: HAVERI 582109.
...APPELLANT
(BY SRI.K.M.SHIRALLI, ADV.)
AND:
THE STATE OF KARANTAKA
BY PSI OF HAUNSBHAVI POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD 580012.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION PASSED IN S.C. NO.32/2016 DATED 07.01.2020, BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI
SITTING AT RANEBENNUR FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 323, 498A, 504, 302 OF IPC AND ACQUIT THE
APPELLANT/ACCUSED NO.1 OF THE OFFENCES WHICH HE HAS BEEN
CONVICTED AND SENTENCED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING ON
28.06.2022 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY M.G.S.KAMAL J.,
DELIVERED THE FOLLOWING:
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CRL.A No. 100268 of 2020
JUDGMENT
Present appeal by the appellant-accused No.1 being aggrieved by the judgment and order dated 07.01.2020 passed in S.C. No.32/2016 on the file of the II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur (hereinafter referred to as "trial Court" for short) by which acquitting accused No.3, the trial Court convicted appellant-accused No.1 for the offences punishable under Sections 323, 498A, 302 and 504 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short) and sentenced him;
a) to undergo simple imprisonment for a period of six months and to pay fine of Rs.500/- for the offence punishable under Section 323 of IPC and in default to pay the fine amount, to undergo simple imprisonment for 15 days.
b) to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1,000/- for the offence punishable under Section 498A of IPC and in default to pay the fine amount, to undergo rigorous imprisonment for six months.
c) to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- for the offence punishable under Section 504 of IPC and in default to pay the fine amount, to undergo simple imprisonment for one month.
d) to undergo life imprisonment and to pay fine of Rs.5,000/- for the offence punishable under -3- CRL.A No. 100268 of 2020 Section 302 of IPC and in default to pay the fine amount, to undergo rigorous imprisonment for five years days.
BRIEF FACTS
2. The case of the prosecution is that the accused No.1 is the husband and accused Nos.2 and 3 are the parents- in-law of deceased-Sahera Banu. The marriage of accused No.1 and deceased-Sahera Banu was solemnized about four years prior to the date of the incident at Chikkerur Village. Accused No.1 and the deceased initially lived happily for a period of six months. Thereafter, the accused persons started to harass the deceased with abusive and filthy language and also suspecting her fidelity. Accused No.1 and the deceased started to live separately. That on 06.12.2005 at about 05:00 p.m., accused No.1 demanded money for consumption of alcohol. On refusal by the deceased, the accused No.1 abused and assaulted her. At about 08:00 p.m., on the same day, accused No.1 again picked up quarrel with the deceased and poured kerosene and set her ablaze with an intention to kill her. The deceased was admitted to C.G.Hospital, Davanagere and later on 12.12.2015 she succumbed to the injuries. After the investigation, the Police filed the charge sheet against the accused persons for -4- CRL.A No. 100268 of 2020 the offences punishable under Sections 323, 498A, 302 and 504 read with Section 34 of IPC. The prosecution examined 29 witnesses as PW1 to PW29 and marked 41 documents as Exs.P1 to P41 and produced four material objects as MO1 to MO4.
3. Accused No.2 stated to have passed away during the pendency of the matter. The proceeding against him stood abated. Statement of accused Nos.1 and 3 under Section 313 of Cr.P.C. was recorded in which they denied the incriminating evidence produced against them. The accused examined one Dr.Seetharam, Chigateri Hospital, Davanagere as DW1 and produced two documents marked as Exs.D1 and D2. The trial Court after appreciation of evidence, by the impugned judgment and order, acquitted accused No.3 and convicted and sentenced accused No.1 to undergo the imprisonment as above.
4. Sri.K.M.Shiralli, learned counsel for the appellant- accused No.1 reiterating the grounds urged in the memorandum of appeal submitted that the impugned judgment and order convicting the accused No.1 is on the basis of -5- CRL.A No. 100268 of 2020 testimony of the interested witnesses whose evidence suffer from serious infirmities. That the entire case of the prosecution is based on the dying declaration at Ex.P32 which cannot be relied upon as the deceased was not in fit state of mind to give such declaration. That there are other serious infirmities in the alleged dying declaration making it unsafe to rely upon. That in Ex.D1, the medical records furnished by the accused refers to "h/o burn injuries due to bursting of lamp". This document belies the entire case of the prosecution as the same had come into existence at an undisputed point of time. That the accused Nos.1 and 2 being the husband and father-in-law of the deceased were in the hospital which proves their bona fides and innocence. That the FIR was registered based on the said complaint cum dying declaration. That PW25-Tahasildar did not record the statement of the deceased as he found the deceased not in fit condition. Hence sought for allowing of the appeal.
5. Sri.V.M.Banakar, learned Additional State Public Prosecutor justifying the judgment and order passed submitted that the dying declaration of the deceased was recorded while she was conscious, alert and in fit state of mind. Even the document at Ex.D1 produced by the accused reflect the entries -6- CRL.A No. 100268 of 2020 to the effect that the deceased was conscious till her death. That there are no inconsistencies or infirmity in the dying declaration and the same satisfies the test of law laid down by the Apex Court. Even otherwise, the prosecution has established the case beyond reasonable doubt. That the accused was under an obligation to explain the circumstances which were within his knowledge as contemplated under Section 106 of the Indian Evidence Act. That no grounds have been made out warranting interference. Hence sought for dismissal of the appeal.
6. Heard the learned counsel for the parties. Perused the records. The point that arise for consideration is:
"Whether on the facts and in the circumstances, the trial Court is justified in passing the judgment and order convicting and sentencing the appellant-accused No.1 for the offences punishable under Sections 323, 498A, 302 and 504 read with Section 34 of IPC?"
CAUSE OF DEATH:
7. PW23-Dr.G.M.Mohankumar conducted the postmortem of the dead body of the victim and has deposed -7- CRL.A No. 100268 of 2020 referring to postmortem report at Ex.P34 which contains the details of examination as under:
"the dead body is that of a female, measuring 165 cms in length, moderately built, hospital dressing is present in the lower part of the legs with IV kanula in the left ankle. Eyes are closed, cornea hazy on both sides. Postmortem staining is difficult to appreciate.
The body is burnt as depicted in the diagram in page No.3. Scalp with scalp hairs and soles of both foot are speared with burn injuries. Burnt injuries are dermoepidermal constituting 95% body surface area burnt. Epidermies peeled at almost all places where there are burnt injuries exposing cherry red coloured derman part with yellowish base and slippery in nature."
The cause of the death is shown as a result of septicaemic shock and toxaemic complications consequent upon burn injuries sustained.
The said witness in the cross-examination has stated that he needs to refer to the IP records to see the nature of treatment given to the deceased and her response to the treatment to see if she was in a condition to talk.
8. From the above deposition of PW23, it is clear that the deceased died as a result of burn injuries sustained by her. -8-
CRL.A No. 100268 of 2020 The next question requires to be considered is whether the accused No.1 was responsible for causing burn injuries resulting in death of the deceased. In this regard, the prosecution has relied upon complaint cum dying declaration of the deceased to establish the guilt of the accused. Therefore, at the outset, we deem it appropriate to evaluate the said piece of evidence produced by the prosecution.
COMPLAINT CUM DYING DECLARATION:
9. Complaint is at Ex.P32 given by the deceased herself on 07.12.2015. The contents of the complaint are extracted hereunder:
"a) That the deceased and accused are married since four years blessed with two children namely Ayesha, aged 4 years and Daval Malik, aged 2 years. That the deceased was living with her husband, father-in- law-Babu Sab, mother-in-law-Abidabi and younger sister of her husband-Salma Banu. Initially the aforesaid persons were cordial with the deceased and thereafter without any reason they started harassing her by suspecting her fidelity and were using abusive and filthy language. That she had informed about the same to her parents. That after the Bakrid festival in the year 2013, her father alongwith one Lokappa Lamani, Mehaboob Sab Sheikh Sanadi, Tirukappa had come to Chikkerur and -9- CRL.A No. 100268 of 2020 advised the accused persons to take care of the deceased and not to harass her. However, the accused persons continued to harass the deceased.
b) That about a month ago, her father-in-law, mother-in-law and sister-in-law had asked deceased, her husband and their children to go separate and accordingly they were residing in a rented house. Even then, the accused was suspecting and assaulting the deceased.
c) That on 06.12.2015 at about 07:00 p.m., the accused demanded Rs.100/- to consume alcohol and on her refusal, he assaulted her and went out. At about 08:00 p.m., accused returned home and abusing her with filthy language and declaring that he would finish her, poured kerosene and set her ablaze. On her screaming, the neighbours namely Abdul Khadri Mulla and Sadiq Ahamed came and doused the fire. Thereafter, ambulance was called in which she alongwith her husband and the father-in-law had come to hospital. Hence she sought for initiation of action in the matter."
10. The said compliant is at Ex.P32 in which thumb impression of the deceased is shown. The said complaint has been recorded in the presence of PW21-Dr.H.Nagaraj, who has affixed his signature, marked at Ex.P32(a). Signature of Head Constable Sri.S.M.Angadi, who recorded the statement is
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CRL.A No. 100268 of 2020 marked as Ex.P32(b). In the endorsement made on the said complaint, it is seen that the same has been recorded between 02:15 to 03:15 hours in the presence of the Medical Officer.
11. Based on the aforesaid complaint, FIR was registered as per Ex.P39 on 07.12.2015 at 07:45 p.m. The FIR has been dispatched to the Magistrate at 08:45 p.m.
12. PW21-Dr.H.Nagaraj in his deposition has stated that he received the requisition as per Ex.P30 from the Police Station, Haunsbhavi to give his opinion if the deceased was in a fit condition to give a statement. His signature of the said requisition is identified and marked as Ex.P30(a). The said witness has stated that he examined the injured Sahera Banu at about 02:00 p.m. and she was awake and conscious was answering to all the questions. She was not given any sleeping tablets or injection at that time. She was understanding the questions and was answering accordingly and he has given certificate in that regard as per Ex.P31. His signature thereon is Ex.P31(a). After the said certificate, the Police recorded her statement in his presence as per Ex.P32 and he has identified
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CRL.A No. 100268 of 2020 his signature Ex.P32(a). That the deceased was awake and conscious at the time of giving the statement.
13. In the cross-examination, the said witness has stated that he was in emergency ward at 01:45 p.m. when he received the requisition. That the said emergency ward is situated about 10 meters away from the burns' ward, that he is working as psychiatrist in C.G.Hospital, Davanagere. He has further deposed that he has not entered in the case sheet or in the treatment chart that the injured was in a fit condition to give statement and that she was neither given any injection nor any tablet. Similarly he has not mentioned about the Police recording the statement in the case sheet or the treatment chart. That except Exs.P30 and P32, there are no other documents with regard to recording of the statement of the deceased and regarding her condition to give such statement. That he has not mentioned in Ex.P31, the extent of burn injuries. He admits that 90 to 95% burn is a serious condition, but denied the suggestion that no patient would be left without sedative or pain killer injections even after six hours of the admission to the hospital. He has further deposed that the statement of the injured was recorded by the Police. That there
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CRL.A No. 100268 of 2020 is no mention in Ex.P32 regarding recording of the statement of the injured by the Police. That there is no mention in Ex.P31 regarding the injured answering to his questions or with regard to her pulse rate and B.P. Several suggestions have been made to the said witness about his duty in emergency ward between 2 to 03:15 p.m. Nothing has been elicited to discredit the evidence of the said witness with regard to the mental condition of the deceased to give the statement.
14. PW24-S.M.Angadi, the Head Constable, who recorded the statement of the deceased at Ex.P32 has stated that on 17.12.2015 he visited the hospital in Davangere between 12:00 to 12:30 p.m. The said witness has referred to the MLC sent from the C.G. Hospital, Haunsbhavi to the Police Station as per Ex.P35 and his signature is identified as Ex.P35(a). He has further stated that the injured was admitted into emergency ward and she was in a talking condition. That he visited the office of the Tahasildar, Davangere and requested him to record her statement as she was in a talking condition to which, the Tahasildar had sent them away by stating that he had some emergent work and he would record her statement later. The copy of requisition given to the
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CRL.A No. 100268 of 2020 Tahasildar is at Ex.P36 and his signature is marked as Ex.P36(a). That the said requisition was given at 01:00 p.m. That after returning to the C.G. Hospital, he had requested the doctor at the hospital to assist in recording the statement of injured as per Ex.P30 and his signature thereon is marked as Ex.P30(b). That the doctor enquired with the injured regarding the injuries and thereafter certified that she was in a fit condition to give statement as per Ex.P31 and his signature is found at Ex.P31(b). He has further stated that he recorded the statement of the injured in the presence of the doctor between 02:15 to 03:15 p.m. After reading over the same to the injured, she affixed her thumb impression on the said statement which is already marked as Ex.P32 and his signature thereon is marked as Ex.P32(b). He has further stated about the registration of the case in Crime No.163/2015 at about 07:45 p.m.
15. In the cross examination, the said witness has stated that when he came to the station at 08:00 a.m. he was informed about receipt of MLC from C.G. Hospital and was asked to obtain the statement. He doest not remember who had brought the MLC from the hospital and who had received
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CRL.A No. 100268 of 2020 the same. That he left the station at about 08:30 a.m. and reached Davangere C.G. Hospital at about 12:15 p.m. and he first visited the patient in the emergency ward. He has not given any requisition in the emergency ward. That he went to the Tahasildar Office, Davangere at 01:00 p.m. which is at a distance of about 4 to 5 kms., that he has not produced any documents regarding the Tahasildar stating about his busy schedule. That he gave the requisition to the Tahasildar at about 01:45 p.m. but he has not mentioned the time. That there is no mention regarding the timings of recording of the statement at page 2 of Ex.P32 and also with regard to the condition of the injured being conscious and in talking state. Several suggestions of denial have been made by the defence counsel including suggestion of creating of Exs.P30 to P32. Except this nothing has been elicited from the said witness, regarding the process of recording the statement of the victim and her mental condition.
16. It is also relevant at this juncture to refer to Ex.D1, the case sheet produced by the accused in his defence which consists of 13 pages maintained between 12:45 a.m. of 07.12.2015 to 05:15 p.m. of 12.12.2015. At page 3 of the said
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CRL.A No. 100268 of 2020 document, there is a reference as "A/H/O-accidental burns due to bursting of kerosene lamp at 8 pm on 06.12.2015 at her residence, Kumbarahalli".
17. At page 7, there is High Risk Consent Form which contains the following:
"I/WE-the attenders have been explained the condition of the patient i.e., 100% superficial to deep burns and the complication associated with the condition like hypo-volenic shock septicemic shock, RF aspiration and even death in the best known language.
I/WE have been explained the need for ventilator support need for higher antibiotics and the facilities available in the hospitals and elsewhere.
I/WE shall not hold responsible the doctors or the hospital staff for any untoward consequences to the patient during the course in the hospital.
Sd/- Sd/-
(Babasaheb) (Sikkansab)
Father-in-law Father"
Ex.D1 also consists of Doctor's follow up sheets dated 08.12.2015, 09.12.2015, 10.12.2015, 11.12.2015 and 12.12.2015 in which there is a continuous mentioning as "conscious and oriented".
18. From the deposition of PW21 and PW24 and the documents produced and marked through them, it is clear that the deceased was conscious and alert from the movement of her admission to the hospital on 07.12.2015 till her death on
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CRL.A No. 100268 of 2020 12.12.2015. It is necessary to note that despite deceased suffering 90 to 95% burn injuries, she survived for about five days and as noted above was conscious and oriented throughout.
19. PW25-Manjunath Ballary, was the Tahasildar of Davangere Taluk at the relevant point of time. He has spoken about receiving the requisition from the Haunsbhavi Police Station as per Ex.P36 and the original of the said requisition is marked as E.P37 and his signature is shown as Ex.P37(a). He has further stated that he visited the hospital at 09:00 p.m. and with the assistance of staff nurse, he went near the injured and enquired with her but she did not reply to any of his questions as she had slipped into unconsciousness. Therefore, he had issued a letter at Ex.P38 addressed to the Assistant Commissioner of Police, Haunsbhavi Police Station informing that he had visited the injured to record the statement but she was not in a condition to give any information. That thereafter on 12.12.2015 he received information from the Police regarding the death of the deceased as she did not respond to the treatment and visited the Chigateri Hospital Mortuary on 13.12.2015 and conducted the inquest in the presence of
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CRL.A No. 100268 of 2020 Hyderalisab-CW2, Hazaratsab-CW3 and Smt.Haseenabanu-CW4 which is as per Ex.P1. That he recorded the statement of Sikandarsab-PW6, Meharoonbi-PW7, Shafiulla-PW8 who had stated that the deceased was subjected to physical and mental harassment by the accused who was addicted to alcohol and who was suspecting the fidelity of the deceased and that on 06.12.2015 at 08:00 p.m. he had set her ablaze by pouring kerosene.
20. In the cross examination, the said witness has stated that he had received the requisition at Ex.P36 and 37 from the Police at about 01:00 pm. That he has not mentioned therein regarding his inability to go due to his emergent work, but he had informed orally. The rest of the suggestions made are of denial.
21. Learned counsel for the appellant vehemently submitted that in view of the deposition of Tahalsidar-PW25, regarding the injured not being in fit condition to give the statement, the reliance placed on Ex.P32-complaint-dying declaration by the prosecution is illegal and contrary to settled position of law. He further submitted that Ex.P32 does not
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CRL.A No. 100268 of 2020 contain the time at which it was recorded. That since injured had sustained 90% of burn injuries and in the light of the evidence of PW25, it has to be inferred that she was not in a fit condition to given such statement. That since admittedly the statement was recorded by PW24-Head Constable, there is every possibility of the same being tutored/doctored version made to implicate the accused who is an innocent person. He relied upon the judgment of Apex Court in the case of State (Government of NCT of Delhi) vs. Nitin Gunwant Shah reported in 2015 AIAR (Criminal) 1060, wherein at paragraph 15, the Apex Court has stated that the statement as to death must be made by person himself and if any discrepancy arises, the same cannot be relied upon. He referred to another judgment of the Apex Court in the case of P.Mani v. State of Tamil Nadu reported in 2006 (2) KCCR 1202 wherein the Apex Court at paragraph 14 has held as under:
"14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to
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CRL.A No. 100268 of 2020 whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused. Thus he submits that dying declaration at Ex.P2 having intrinsic defects recorded under the suspicious circumstances cannot be the basis for convicting the accused that since the entire case of the prosecution is based on the said dying declaration which is an inadmissible document under the circumstances, the accused is entitled to be acquitted."
22. There is no dispute with regard to the principles of law laid down in the aforesaid judgments by the Apex Court, but in the facts and circumstances of the instant case, there is nothing to suspect or doubt with regard to the correctness of the dying declaration. Further, as could be seen from the deposition of PW6, PW7 and PW8 who are the parents and the brother-in-law of the deceased to whom deceased had personally informed about the accused pouring kerosene and setting her ablaze, would corroborate the evidence of the
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CRL.A No. 100268 of 2020 prosecution with regard to the condition of the deceased to give statement and the contents of the dying declaration at Ex.P32.
23. The Apex Court in the case of Purshottam Chopra and another vs. State (Govt. of NCT Delhi) reported in AIR 2020 SC 476, accepting the dying declaration of a deceased suffering 100% deep burn injuries at paragraph 21 has held as under:
"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-
i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.
ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.
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CRL.A No. 100268 of 2020
v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement
vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."
24. In the instant case, as noted above, PW21-Doctor has certified that the condition of the deceased as per Ex.P31 and has affixed his signature marked as Ex.P32(a) and has deposed before the Court regarding his presence while recording the statement of the deceased. Nothing is elicited or established by the defence to disbelieve his version. Similarly, PW24-Head Constable, who recorded the complaint/dying
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CRL.A No. 100268 of 2020 declaration at Ex.P32 has stood the test of cross-examination. Nothing has been brought on record to disbelieve or doubt his version. In the light of the law laid down by the Apex Court in Purshottam Chopra (supra), we are of the considered view that the dying declaration at Ex.P32 has been established and can be accepted.
25. As already noted hereinabove, even from the contents of Ex.D1, produced by the accused in his defence, there is mention about deceased being "conscious and oriented" throughout. As regard the mentioning of "h/o. accidental burns due to bursting of kerosene lamp at 08:00 p.m. on 06.12.2015 at her resident, Kumbarahalli", the counsel for the accused insisted that the said statement was given by the deceased herself at the time of her admission. This submission has two implication. If this submission is considered, it is clear that the deceased was conscious at the time of admission which belies the case of the accused of deceased being not in fit condition to give any statement. On the other hand, it is also the case of the defence that accused Nos.1 and 2 being husband and father-in-law of the deceased got her admitted to the hospital. As rightly taken note of by the
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CRL.A No. 100268 of 2020 trial Court, there is every possibility of accused giving such information to the hospital authorities at the time of admission. Though no such charge is made against the accused in this regard, it can be presumed that the information regarding the admission of the deceased was given by persons who got her admitted in the hospital. No mention in any of the hospital records as to the persons who brought the deceased to the hospital and who got her admitted into the hospital. However, as noted earlier in the High Risk Consent Form, there is a signature of accused No.2-the father-in-law of the deceased. From this it can be inferred that he was present at the time of admission of the deceased to the hospital. Though the said form also base a purported signature of the father of the deceased-PW6, in his evidence and cross-examination, he has specifically denied his signature or his presence at the time of admission of the deceased into the hospital. Therefore, reliance on the said endorsement in the Ex.D1 regarding history of accidental burn injuries cannot be countenanced.
26. Another aspect of the matter is that according to the defence, deceased sustained burn injuries due to bursting of the lamp while filling kerosene therein. In the spot mahazar
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CRL.A No. 100268 of 2020 and in the recovery of material objects from the spot as per Ex.P4, there is no reference or mention with regard to any lamp found at the spot. It is also beyond the comprehension that an ordinary lamp, if any would burst into flame causing 90 to 95% of burn injuries, as sought to be made out by the accused. From this it can be inferred that the said entry in the hospital records must have been at the instance of the accused Nos.1 and 2.
EVIDENCE OF OTHER WITNESSES:
27. Further, the evidence of other witnesses namely PW6, PW7 and PW8 being the father, mother and the brother in law of the deceased have deposed consistently with regard to the events leading up to death of the deceased.
28. PW6-Sikandarsab in his evidence has stated that on 03.04.2011, he conducted the marriage of the deceased with the accused at his place in Lingdevarakoppa. That after the marriage, deceased stayed with the accused, his parents and family members. After six months of the marriage, accused started suspecting the fidelity of the deceased and was harassing her in alcoholic condition. That the deceased had
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CRL.A No. 100268 of 2020 informed him about the torture by the accused. that he had taken the elders of the house of the accused for conciliation in which, the accused had assured to mend his ways but within a month thereafter he again started to harass the deceased. That after six months prior to the incident, the deceased and the accused were staying separately. That on 06.12.2015, at about 8 pm accused had set the deceased ablaze on a quarrel. That he received the information at 10:00 p.m. from the relatives of the accused and he along with his wife, and others went to the hospital at 03:00 a.m. On enquiry, the deceased had narrated the incident to him and also the accused pouring kerosene and setting her ablaze. In the cross examination, it is suggested that the first accused and the deceased were staying in Chikkakerur for about six months of their marriage, thereafter, deceased and the accused stayed in Lingadevarakoppa where he was carrying on motorcycle garage business near the bus stand to which the witness has stated that they stayed only for a month. He has admitted that deceased and the accused were staying in the house of Lokappa Lamani-CW17 and that the deceased had given birth to her first daughter in the said house. He has admitted that by the time he went to the
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CRL.A No. 100268 of 2020 hospital, deceased was under treatment and accused No.1 and 2 were present. He has stated that when the deceased was in hospital, she has spoken to him. That he, his wife, daughter and the deceased were in the hospital up to 12.12.2015 that between 07.12.2015 to 12.12.2015 deceased was talking but was not eating any food. That on 08.12.2015, 09.12.2015, 10.12.2015, 11.12.2015 police had visited the hospital and the deceased had spoken to the police. That the Police had taken her statement to which the deceased had affixed her signature and the treating Doctor has also spoken to the deceased. He has denied the suggestion that when the deceased was taken to the hospital initially she has stated that she suffered burn injuries accidentally by spilling of kerosene from the lamp. He has denied the suggestion that at the time of admission, he and accused No.2 had signed the admission records. He has denied his signature. He has denied the suggestion that on 07.12.2015 he and his people had assaulted accused Nos.1 and 2 and sent them away from the hospital and thereafter they had influenced the Police to file a false case against the accused Nos.1, 2 and
3. The rest of the suggestions are denial.
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CRL.A No. 100268 of 2020
29. PW7 is the mother of the deceased. Who has spoken about the mental and physical harassment meted out to the deceased by the accused and the abusive language used against her which was informed to her by the deceased. She has also spoken about the panchayat being conducted to advise the accused. she has spoken about accused pouring kerosene and setting her ablaze on a quarrel for Rs.100/-. She has spoken about the statement she gave before the Tahasildar. She has also deposed about her daughter been alive for 6 days in the hospital and about her daughter talking.
30. PW8 is the brother in law of the deceased who has also spoken about the harassment, quarrel and pouring of kerosene by the accused on the deceased. In the cross- examination, he has denied the suggestion that the deceased was not in a fit condition to give any statement. He has stated that the deceased was talking in the afternoon of the day when she was admitted to the hospital and till her death she was talking. That the deceased had informed him about the accused demanding Rs.100/- to consume alcohol and quarreling with her and later setting her ablaze by pouring kerosene.
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31. The evidence of these three witnesses PW6, PW7 and PW8 with regard to the harassment meted out by the accused, with regard to panchayat conducted to advice the accused and with regard to deceased informing them about the quarrel and accused setting her ablaze has been consistent. Nothing has been elicited to discredit their evidence in this regard. Though these witnesses have not seen the incident, but have spoken about the circumstances before the incident and the condition of the deceased subsequent to the incident.
32. PW1, PW2 and PW3 are the inquest panchas. PW4 is a witness to the spot panchanama at Ex.P4. The Police have seized four material objects namely, a)1 yellow colour can, b)1 white colour can, c)1 match box with some sticks, d)1 half burnt bed sheet as per Ex.P4. PW4 has stated that he along with PW5 were present while drawing the panchanama at Ex.P4 he identified the signature at Ex.P4(a) and four photographs at Exs.P5 to P8. The said witness turned hostile. In the cross- examination by the Public Prosecutor, the said witness has stated that on 08.12.2015, at about 10:30 a.m., the Police had come to the place of accused No.1, but he pleads ignorance about the place of incident. He admits that the Police had
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CRL.A No. 100268 of 2020 recovered MO1 and MO2 from the namaz room of the accused. He denied preparation of the sketch of the spot but he admits his signature thereon which is marked at EX.P1(a).
33. PW5 is another panch witness who has stated that the police had come to the house of the accused No.1 at about 10:00 a.m. and took him to the house of the accused No.1. that the accused No.1 was with the Police. He admits his signature on the panchanama Ex.P4. The said witness identified MO1 and MO2 and the photographs Exs.P5 to 8. He turned hostile. In the cross-examination of Public Prosecutor, he has admitted that accused No.1 had shown MO1 and MO2 and the Police seized MO1 to MO3 in his presence. He however states Police took signature on the blank paper.
34. PW9 is the grandfather of the accused No.1 and stated that the deceased had poured kerosene on herself and set ablaze. The said witness turned hostile and has not supported the case of the prosecution.
35. PW10 Abdulkhadar is the owner of the house in which the accused and the deceased were residing. He has admitted that accused no.1 and the deceased were residing in
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CRL.A No. 100268 of 2020 his house but pleads ignorance the reason for their moving into his house. He states that he learnt about deceased suffering burn injuries accidentally while pouring kerosene oil but he has not seen. The said witness has turned hostile and has not supported the case of the prosecution.
36. PW11 and PW13 are the relatives and PW12, PW14 and PW15 are the neighbours of the accused who have turned hostile and have not supported the case of the prosecution. It is quite expected of them to have supported the accused considering their relationship and proximity.
37. PW16 is from the Lingadevarkoppa. He has spoken about advising the accused not to harass the deceased. The said witness has been treated partly hostile. In the cross- examination by the Public Prosecutor , the said witness has supported the case of the prosecution.
38. PW18 is another witness from Lingadevarakoppa, who has spoken about advising the accused. The said witness has been treated partly hostile and in the cross-examination of the Public Prosecutor, he has supported the case of the prosecution.
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39. The official witnesses namely PW19, PW20, PW21, PW22, PW26, PW28 and PW29 have supported the case of the prosecution.
40. Counsel for the appellant has vehemently submitted that since all the witness except the witnesses from Lingadevarakoppa have turned hostile and have not supported the case of the prosecution and there is no corroboration of the evidence, thereby the prosecution has failed to prove the case beyond reasonable doubt.
41. It is not in dispute that on the date of incident, the accused No.1 and the deceased were staying together in the rented house belonging to PW10. It is also not in dispute that accused was present at the spot when the incident took place. Though, the accused has sought to putforth a case of deceased getting burn injuries accidentally while pouring the kerosene into the lamp, has however, not able to establish the said fact. In the spot panchanama, at Ex.P4, there is no mention with regard to any lamp or burst pieces of lamp available at the spot. Since the incident had taken place in the house of the accused and in his presence, the burden is on the accused to
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CRL.A No. 100268 of 2020 prove the facts which are expected to be within his exclusive personal knowledge as contemplated under Section 106 of the Indian Evidence Act.
42. The Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra (2006)10 SCC 681 at paragraph 15 has held as under:
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
43. The accused has not disputed his presence at the spot. In fact, according to the accused, he and his father brought the injured to the hospital and were present throughout the treatment in the hospital. It was therefore, incumbent upon the accused to have given acceptable explanation regarding the cause of the death. The accused not
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CRL.A No. 100268 of 2020 having discharged the burden, an inference could be drawn regarding his complicity in the crime.
44. The trial Court has taken into consideration all these aspects of the matter while passing the impugned judgment and order. No infirmity, irregularity or illegality can be found in the impugned judgment and order. Appellant has thus not made out any ground warranting interference. Hence, the following:
ORDER The appeal is dismissed.
The judgment and order dated 07.01.2020 passed in S.C.
No.32/2016 on the file of the II Additional District and Sessions Judge, sitting at Ranebennur, is confirmed.
Sd/-
JUDGE Sd/-
JUDGE Rsh / KGK