Abdulla vs State Of Karnataka
2022 Latest Caselaw 3365 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        PRESENT

           THE HON'BLE Mr. JUSTICE B. VEERAPPA

                            AND

           THE HON'BLE Mr. JUSTICE S. RACHAIAH

              CRIMINAL APPEAL No.1012/2018
BETWEEN:

ABDULLA
S/O. HULLUR SAB @ HUNNUR SAB,
AGED ABOUT 35 YEARS,
RESIDING AT PERESANDRA VILLAGE,
CHIKKABALLAPURA TALUK-570001.

NATIVE OF
KHAJIPURA VILLAGE,
GORANTLA MANDALAM,
ANANTHAPURA DISTRICT,
ANDRA PRADESH STATE.
                                             ...APPELLANT

(BY SRI N.R. KRISHNAPPA, ADVOCATE)

AND:

STATE OF KARNATAKA
BY POLICE INSPECTOR,
GUDIBANDE POLICE STATION,
CHIKKABALLAPURA DISTRICT,
                                    2




REPT. BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
                                                      ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)

                          *****
     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
16.01.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, CHIKKABALLAPURA C/c OF I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHIKKABALLAPURA IN S.C.NO.41/2012 -
CONVICTING AND SENTENCING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:


                             JUDGMENT

The appellant/accused, who is none other than husband of

the deceased Banubee filed the present criminal appeal against the

judgment of conviction and order of sentence dated 16/17-01-

2018 made in S.C. No.41/2012 on the file of the I Addl. District &

Sessions Judge, Chikkaballapura, convicting him for the offence

punishable under the provisions of Section 302 of IPC and

sentencing to undergo imprisonment for life and to pay fine of

Rs.10,000/- with default clause. By the very impugned judgment,

the trial Court acquitted the accused for the offence punishable

under Section 498A of IPC.

2. Based on the statement of the deceased Smt. Banubee

w/o of the accused dated 1.9.2011 as per Ex.P11, the jurisdictional

Police initially registered Crime No.126/2011 for the offence

punishable under the provisions of Section 307 of IPC and after her

death on 2.9.2011, the same was converted into one under Section

302 of IPC.

3. It is the case of the prosecution that the accused and the

deceased Banubee are husband and wife and their marriage was

performed about 16 years prior to the incident and out of the

wedlock, a female child was born and died and thereafter male child

was born, aged about 14 years as on the date of the incident. It is

further case of the prosecution that the deceased was subjected to

cruelty both physically and mentally by demanding dowry. On

01.09.2011 at about 5:00 p.m., the accused told his wife to

prepare non-vegetarian food, but she did not prepare the food

inspite of several requests. When things stood thus, on the same

day at about 9.30 p.m., the accused quarrelled with the deceased

and poured kerosene on her and set fire. She suffered burn injuries

and her sister - Rasul Bi shifted her to Government Hospital,

Chikkaballaura. PW.22 - Dr. Shivakumar, the then Medical Officer

at Government Hospital, Chikkaballapura has initially treated the

deceased and intimated the police. At about 10.30 p.m., PSI

(PW.21) recorded the statement of the deceased as per Ex.P11 in

presence of the doctor (PW.22) and registered the Crime

No.126/2011 for the offence punishable under Section 307 of IPC.

Thereafter, the injured was sent to Victoria hospital for higher

treatment. On 2.9.2011 at about 5.30 p.m., the deceased

succumbed to the injuries in the Victoria hospital. After completion

of the investigation, the Investigating Officer filed the charge sheet

for the offences punishable under Sections 302 and 498A of IPC.

After committal of the matter, the learned Sessions Judge secured

the presence of the accused and framed the charge and read over

to the accused in the language known to him and he pleaded not

guilty and claimed to be tried.

4. In order to prove its case, the prosecution examined as

many as 23 witnesses as PWs.1 to 23 and got marked 16

documents as per Ex.P1 to Ex.P16 and 6 Material Objects as per

MOs.1 to 6. On behalf of the Court, one witness was examined as

CW.1 and got marked Ex.C1 - FSL report and Ex.C1(a).

5. After completion of evidence of the prosecution witnesses,

the statement of the accused was recorded as contemplated under

the provisions of Section 313 of the Code of Criminal Procedure.

The accused though denied all the incriminating circumstances that

were found against him in the evidence of the prosecution

witnesses, to question No.101, he has stated that on the date of

the incident, he had been to the mason work of one Venkateshappa

and he was not in the house and on hearing the information, he

came to home. He has not lead any defence evidence.

6. The learned Sessions Judge based on the material on

record, has framed two points for consideration, which are as

under:

"Point No.1 : Whether the prosecution proves beyond all reasonable doubt that since from the date of marriage accused subjected the deceased to cruelty both mentally and physically by making unlawful

demand of money and thereby committed an offence punishable under section 498-A of IPC, as alleged?

Point No.2 : Whether the prosecution proves beyond all reasonable doubt that on 01.09.2011 at about 9:30 pm in the house of accused at Peresandra accused got angry on the deceased for not preparing non- vegetarian food, poured kerosene on her and set ablaze and caused burn injuries with intent to kill her, and she succumbed injuries on 02.9.2011 at 5.30 p.m. in Victoria Hospital, Bangalore and thereby committed an offence punishable under Section 302 of IPC, as alleged ?"

7. Considering both the oral and documentary evidence on

record, the learned Sessions answered the 1st point in the negative

holding that the prosecution failed to prove beyond all reasonable

doubt that the accused committed an offence punishable under

Section 498-A of IPC and answered the 2nd point in the affirmative

holding that the prosecution proved beyond all reasonable doubt

that the accused committed an offence punishable under Section

302 of IPC. Accordingly, the learned Sessions Judge convicted the

accused for the offence punishable under Section 302 of IPC and

acquitted for the offence punishable under Section 498A of IPC.

Hence, the present criminal appeal is filed by the appellant/accused

challenging the judgment of conviction and order of sentence

passed by the trial Court convicting him for the offence punishable

under Section 302 of IPC.

8. The State has not filed any appeal against the judgment

and order of acquittal acquitting the accused for the offence under

Section 498A of IPC.

9. We have heard the learned counsel for the parties.

10. Sri N.R. Krishnappa, learned counsel for the

appellant/accused contended with vehemence that the impugned

judgment of conviction and order of sentence passed by the trial

Court convicting the accused for the offence punishable under

Section 302 of IPC and sentencing him to undergo imprisonment for

life and to pay fine Rs.10,000/- with default clause, while acquitting

the accused for the offence punishable under Section 498A of IPC,

is erroneous and contrary to the material on record and the same is

liable to be set aside. He would further contend that Ex.P11,

statement of the victim recorded in the hospital depicts that

immediately after the incident, her sister - Rusulbi shifted her to

the Government hospital, Chickballapur, but she has not been

examined and it is fatal to the case of the prosecution. He would

further contend that the evidence of PW.6, who is neighbour of the

accused and the deceased was not considered in the proper

perspective. He would further contend that though on the

earlier occasion, this Court by the by the order dated 12.2.2015

made in Criminal Appeal No.166/2014, has remanded the matter

only to record cross-examination of PWs.1 to 8 and thereafter

decide the matter finally, unfortunately even after the remand

though the accused engaged a counsel, he remained absent. In

fact the learned Sessions Judge has observed in the impugned

judgment that no representation was made on behalf of the defence

inspite of sufficient opportunity being given. In the circumstances,

he sought to allow the appeal. He would further contend that the

voluntary statement of the accused as per Ex.P14 depicts that since

his wife refused to prepare non-vegetarian food, he quarrelled with

his wife and poured kerosene on her and set fire. The same was

stated by the deceased in Ex.P11. The statement of the victim

(Ex.P11) was corroborated with the voluntary statement of the

accused (Ex.P14). He further contended that PW.10, who is none

other than son of the deceased and the accused has not supported

case of the prosecution and stated on oath that the accused and the

deceased were very cordial and were leading happy married life.

Alternatively, learned counsel submits that in case this Court comes

to the conclusion that the accused has committed murder of the

deceased, it is not with an intention, but due to provocation without

any premeditation. Learned counsel submits that when the

deceased did not prepare non-vegetarian food, there was quarrel

between the accused and the deceased, thereby the accused

enraged and poured kerosene on the deceased and set fire to her.

Therefore, at the most, the offence falls under Section 304 Part I of

IPC and not under Section 302 of IPC and therefore seeks for

modification of the impugned judgment accordingly.

11. Per contra, Sri Vijaykumar Majage, learned Addl. SPP for

the State while justifying the impugned judgment of convection and

order of sentence, has contended that though the learned Sessions

Judge recorded a finding that the prosecution failed to prove

beyond reasonable doubt the commission of the offence under the

provisions of Section 498A of IPC, the fact remains that on the date

of the unfortunate incident i.e., on 1.9.2011, the husband was very

much with the wife in the house. When the prosecution proved the

initial burden, the accused has to offer explanation what happened

to his wife on that day, in view of the provisions of Section 106 of

the Evidence Act. The same has not been done. Therefore, the

learned Sessions Judge is justified in convicting the accused for the

offence under Section 302 of IPC. He further stated that though

the accused has taken the plea of alibi while answering question

No.101 in the statement recorded under Section 313 of the Code of

Criminal Procedure, he has to prove it in view of the dictum of the

Hon'ble Supreme Court. The same has not been proved in the

present case. He would further contend that doctor - PW.16, who

examined the deceased, has issued the post-mortem report -

Ex.P7, which clearly depicts that the death was due to shock

consequent to burn injuries sustained. During the investigation,

the Investigating Officer - PW.23 has recovered MO.1 - kerosene

can; Mo.2 - match box; Mo.3 - red sari; MO.4 - petticoat; Mo.5 -

blouse; and Mo.6 - sweater at the instance of the accused as per

Ex.P1 - spot mahazar. The inquest mahazar clearly depicts that

the deceased died out of burn injuries. In the circumstances, the

trial Court is justified in convicting the accused for the offence

punishable under Section 302 of IPC. Therefore, he sought to

dismiss the appeal.

12. In view of the rival contentions urged by the learned

counsel for the parties, the only point that would arise for our

consideration in the present criminal appeal is:

"Whether the appellant/accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court convicting him for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life with fine and default sentence, in the facts and circumstances of the case ? "

13. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties and

perused the entire material on record including the original records

carefully.

14. This Court being the appellate Court in order to

re-appreciate the entire material on record, it is relevant to

consider the evidence of the prosecution witnesses and the

documents relied upon:

(i) PW.1 - Babu Sabi, who is brother of the deceased has

deposed that marriage of the appellant and his sister

(deceased) took place about 16 years prior to the

incident at Gorantla, Andhra Pradesh and they were

living happily. They were doing coolie at Gorantla and

later they came to Peresendra. The deceased was

going to factory work at Setadinne and leading their life

by using the money given by the employer The

accused was not giving money to house, but spending

towards unnecessary expenses. The accused was

quarrelling with his sister and there was panchayath in

respect of the same. The deceased left her son Chand

Pasha in the house of mother of the accused at

Ananthapur. After he came to know with regard to the

incident, he went to Victoria hospital and saw the dead

body of the deceased. He came to know that since his

sister (deceased) has not prepared the non-vegetarian

food, the accused quarrelled with the deceased and

poured kerosene on her and set fire. He supported the

case of the prosecution.

(ii) PW.2 - Jabirabi, neighbor of the accused and the

deceased has stated that the accused and the deceased

were residing in a rented house at Peresendra. The

accused has two children, one male and another female

and the female child died because of the health

problem. The distance between the house of the

accused and her house is about 200 feet. Occasionally,

accused and the deceased were quarrelling and since

the quarrel was usual, she was not worrying. On the

relevant day, during evening, while she was returning

from coolie work, when she was proceeding in front of

house of the accused, the accused and the deceased

were quarrelling and the accused was beating the

deceased. She went to her house and pacified the

quarrel. When she was sleeping, again she heard

shouts and then, she came out and saw the injured with

burn injuries and she alongwith one Seenamma and

Narayanswamty extinguished the fire. On enquiry, she

was informed by the deceased that the accused poured

kerosene and set fire on her. Thereafter, PW.1 came

to the spot and called ambulance and shifted the

injured to the Government Hospital. She supported the

prosecution case.

(iii) PW.3 - Narayanaswamy, who was neighbour of the

accused has deposed on par with PWs.1 and 2. He

supported the prosecution case.

(iv) PW.4 - Senamma, who is another neighbour of the

accused has also deposed on par with PWs.1,2 and 3.

He supported the prosecution case.

(v) PW-5 Fakruddin deposed that the deceased is his

daughter-in-law and had two children, out of them, a

female child died due to health problem and another

one is a boy, by name, Chand Pasha. He further

deposed that about 1½ years back, deceased and

accused were quarrelling. On the date of incident,

there was Gowri Festival. One day before to that day,

there was Ramzan Festival, on that day at 9.00 p.m.,

deceased and accused were quarrelling on the ground

that the deceased wife had not prepared mutton meals

and being provoked, the accused poured kerosene on

his wife and set her ablaze supports the case of the

prosecution.

(vi) PW-6 Venkatesh who is also a neighbour of the

deceased and accused has stated on par with the other

witnesses supports the case of the prosecution.

(vii) PW-7 Hussain Saab who is the brother of the deceased

deposed that about ten years back, the marriage

between the accused and deceased was performed and

out of the wedlock, two children are born. The female

child died due to health problem and the male child is

aged about 14 years and residing with his grand-

mother. He further deposed that everyday, accused was

quarrelling with the deceased after consuming alcohol

and was pressurizing the deceased to give money. He

further stated that on the information, he went to the

hospital where the people were assembled and his

sister was shouting like "amma, aiyoo". When he

enquired how the incident took place, his sister

informed that since she has not provided mutton meals

to the accused, the accused quarrelled with her and

poured kerosene and lit fire, which supports the case of

the prosecution.

(viii) PW-8 Fakruddin Saab who is the witness to the inquest

mahazar Ex.P2 supports the case of the prosecution.

(ix) PW-9 Avalakonda Rayappa who is the neighbour of the

accused and deceased has deposed that the deceased

and accused had two children and they were doing

Coolie work and the accused was addicted to alcohol

supports the case of the prosecution.

(x) PW-10 Chand Pasha who is none other than the son of

the deceased and the accused had deposed that his

parents were cordial. Further, he has stated that his

mother voluntarily poured kerosene on herself and lit

fire and died has not supported the case of the

prosecution but turned hostile.

(xi) PW-11, Mamatha who is the Panchayath Development

Officer on the requisition made by the Circle Inspector,

Gudibande, who issued assessment register of the

house list No.678 as per Ex.P4 supports the case of the

prosecution.

(xii) PW-12 Ramesh Kumar, Assistant Executive Engineer on

the requisition made by the Circle Inspector prepared

the spot sketch as per Ex.P5 supports the case of the

prosecution.

(xiii) PW-13 Dr.Sathya Shankara Rao who treated the injured

initially stated that on 01.09.2011 at 11.00 p.m.

Smt.Baanubee (deceased) was brought by her sister

Rasoolbee with burn injuries to the District Hospital and

she was provided with first-aid. Later, for further

treatment, she was shifted to Victoria Hospital. He has

further deposed that condition of the victim was critical

and her pulse was not working and blood pressure was

also not capable to catch. The victim was conscious

except stomach part and knee part front portion of the

body was burnt, backside of the body neck and head

was burnt, approximately more than 50% was burnt.

Since the patient condition was critical, immediately,

first-aid has been given and sent the injured for further

treatment to Victoria Hospital supported the case of the

prosecution.

(xiv) PW-14 Razzak who is relative of the deceased has

deposed that the deceased was his elder sister's

daughter. The marriage of the deceased was arranged

15 years back with the accused and out of the wedlock,

they had two children. The accused was residing near

Peresandra with the deceased in a rented house. He

has further deposed that the accused poured kerosene

on the deceased and lit fire and murdered supports the

case of the prosecution.

(xv) PW-15 Moula Saheb who is the inquest witness has

deposed that about one year back, he had signed on a

document in Victoria Hospital, Bengaluru at Mortuary

and that the police conducted inquest on dead body of

the deceased Baanubee, since dead body was wrapped

in white cloth, he did not see the injuries caused at

different parts. Ex.P2 is the inquest report partly

supports the case of the prosecution.

(xvi) PW-16 Dr.C.N.Sumangala, Assistant Professor who

conducted post-mortem of the deceased on 03.09.2011

at the request made by the jurisdictional police between

11.45 a.m. to 12.45 a.m. on the same day noted the

injuries over the face, neck, upper limbs with de-gloving

of both palms, front and back of both thighs and in

patches supports the case of the prosecution.

(xvii) PW-17 Harish who is the witness to the spot mahazar

Ex.P1 has stated that when the police called him to the

place where the deceased died came to know that the

accused poured kerosene supports the case of the

prosecution.

(xviii) PW-18 Budenabi who is the witness to the inquest

mahazar Ex.P2 supports the case of the prosecution.

(xix) PW-19 Ashwathappa Police Constable who submitted

F.I.R. has stated that as on 01.09.2011 night at 12.00

'o' clock PSI of Station gave F.I.R. of Station Case

No.126/2011 since P.O. of Gudibande Court was on

leave submitted to the Principal and JMFC Court,

Chikkaballapura at 10.30 a.m. supports the case of the

prosecution.

(xx) PW-20 Krishnappa, Police Constable has stated that as

the items seized in this case were ordered to submit to

FSL on 23.09.2011 and the same was submitted on

29.09.2011 and obtained acknowledgement supports

the case of the prosecution.

(xxi) PW-21 Krishnappa A.S.I. who recorded statement of the

deceased on 01.09.2011 on the information given by

the deceased Baanubee who was taking treatment in

Government Hospital, Chikkaballapur for burn injuries,

he went to Hospital at 10.30 p.m. and recorded dying

declaration of Baanubee in the presence of the doctor

and obtained endorsement of doctor supports the case

of the prosecution.

(xxii) PW-22 Dr.Shivakumar who treated the injured at

Victoria Hospital has stated that on 02.09.2011

midnight at 1.00 a.m. the patient by name Baanubee

sent by Government Hospital, Chikkaballapura to

examine, when examined she was conscious. After

recording her statement that during night at 9.30 p.m.,

on 01.09.2011 her husband poured kerosene and lit

fire, injured was sent to burn injuries ward for

treatment supports the case of the prosecution.

(xxiii) PW-23 Shantha Kumar, Investigating Officer who has

submitted charge-sheet has deposed that on

03.09.2011, he went to Victoria Hospital, Bengaluru

drawn inquest on dead body of Baanubee in the

presence of Moula Saab, Rasoolbee, Budieenbee. He

has further deposed that during that time, the

statement of the relatives of the deceased was also

recorded and after conducting investigation, he has filed

the charge-sheet.

(xxiv) PW-24 Nanjappa, who is the FSL Officer has deposed

that on 24.09.2012, Krishnappa, Police Constable (PW-

21) had brought five items which was sealed relating to

Gudibande Police Station Crime No.26/2008 with

related documents. He has given the same in the office

and sent to his section. The seal was intact and tallying

to the specimen seal sent by I.O. On 29.10.2011, the

said items were taken for examination supports the

case of the prosecution.

15. The gist of the statement of the victim on 01.09.2011

recorded by the A.S.I. PW-21 in the presence of PW-13 Dr.Sathya

Shankara Rao specifically stated that the marriage between the

accused and deceased took place about 16 years back and out of

the wedlock, a female child was born and died due to health

problem; another one is a male child who is not aged 14 years. On

31.08.2011, it was a Ramzan festival and as the deceased could not

prepare non-vegetarian food, the accused started quarrelling with

her. On the same day, i.e., on 01.09.2011 at about 5.00 p.m., the

accused/husband came to the house with mutton and asked the

wife/deceased to prepare mutton meals, when the wife refused to

prepare the same, thereby there was a quarrel between the victim

and the accused. The sister of the victim, Smt.Rasoolbee came to

the spot and advised him. At about 9.30 p.m., again, the accused

started to quarrel with the deceased with an intention to murder

her, poured kerosene on her and set her ablaze. The victim has

further stated that the assault of pouring kerosene by the accused

was due to non-preparation of mutton meals by the victim. Though

at the inception, on the statement made by the deceased, a case

was registered under Section 307 IPC in Crime No.126/2011, on

01.09.2011 at about 11.55 p.m., on her death on 02.09.2011 at

Victoria Hospital, Bengaluru, the same was converted to the offence

punishable under Section 302 of IPC. After investigation, the

Investigating Officer, PW-23 had filed the charge-sheet.

16. On perusal of the entire material on record, it is clear

that the marriage between the accused and deceased was

performed about 16 years back and out of the wedlock, two

children were born, out of them, the female child died and the male

child is now aged about 14 years and residing with the mother of

the deceased. It is specifically stated in Ex.P11, statement given by

the victim, which subsequently became dying declaration that due

to non-preparation of non-vegetarian food by the victim, there was

a quarrel between the accused and the deceased. Subsequently,

the sister of the deceased came to the spot and advised the

accused. Admittedly, the prosecution has not examined the sister

of the deceased Rasoolbee to prove that there was a quarrel

between the accused and the deceased. It is also not in dispute that

though as contended by the learned counsel for the accused that no

opportunity of cross-examination was provided to the accused to

cross-examine PW-3 in terms of the decision of this Court between

the parties in Crl.A.No.166/2014 dated 12.02.2015. The fact

remains that, after remand, when the opportunity was given, the

same was not availed. It is also not in dispute that the averments

made in voluntary statement/dying declaration tally with Ex.P14,

which is the voluntary statement of the accused. It is also not in

dispute that PW-10 who is none other than the son of the deceased

and the accused who has stated on oath that his parents were in

cordial terms and were living happily. PW-16 Dr.C.N.Sumangala

who conducted post-mortem of the deceased has issued the post-

mortem report at Ex.P7, which clearly depicts the external injuries

and the same reads as under:

External Appearance

1) Condition of Subject stout, emaciated, decomposed etc.

2) Wounds: Position, size, character.

               3)    Fracture, dislocation etc.

               4)    Mark of ligature on neck.

           -        Body smells of kerosene.

           -        Dead body is that of a female measuring






            cms in length, moderately built and

nourished. Rigor mortis present in all parts of the body. Liver mortis could not be appreciated due to burns over the back.

Foley's catheter present insitu. Blue ink mark present over plantar aspect of left great toe.

- Second and third degree burns present over face, neck, front of chest and abdomen, front and back of both upper limbs with degloving of both palms, front and back of both thighs and in patches over back. Most of the burnt area shows areas of redness. Scalp hair, eyebrows and eyelashes are singed.

The cause of death was due to shock consequent to

burn injuries sustained. The FSL officer, CW-1 has issued

Ex.C1 and the FSL reports clearly depicts about the items

seized at the spot, which reads as under:

OPINION

1. Density, UV-Spectrophotometric and TLC methods indicate that the sample found in article No.1 is kerosene with blue colour dye (Dialkyldiamino anthraquinone).

2. Thin Layer chromatography and UV-

Spectrophotometric methods have responded positive

for the presence of kerosene residues in article Nos.3 to 6.

3. Thin Layer chromatography method has responded negative for the presence of kerosene residue in article No.2.

4. The match sticks found in article No.2 are live.

17. On meticulous examination of the entire oral and

documentary evidence and also medical and scientific evidence on

record clearly depicts that the accused and deceased were husband

and wife and were living happily for more than 16 years as

admitted by PW-10 who is none other than the son of the accused

and deceased. All the witnesses, sisters and brothers of the

deceased in un-equal terms specifically stated that there was a

demand of dowry and the accused and deceased used to quarrel

frequently and the sister of the deceased Rasoolbee who shifted

the deceased to the hospital as alleged in Ex.P11, sister of the

deceased has not been examined by the prosecution to prove that it

was the accused who used to always demand for dowry and was

assaulting the victim and poured kerosene and set her ablaze. The

fact remains that as on the date of unfortunate incident, the

accused was with the victim as stated in her dying declaration and

also stated by the other prosecution witnesses. Very strangely,

while admitting his presence in the house as per Ex.P14, voluntary

statement, he has taken a alibi in Section 313 of the Code of

Criminal Procedure statement in question No.101 that he was not in

the house, he went to mason work to Venkateshappa's house.

Admittedly, the said Venkateshappa has not been examined.

Thereby, once the prosecution discharges its burden, once the

accused has taken a plea of alibi, the burden of proof as to any

particular fact lies on that person who wishes the Court to believe in

its existence, unless it is provided by any law that the proof of that

fact shall lie on any particular person as held by the Hon'ble

Supreme Court in the case of STATE OF HARYANA VS SHER

SINGH & OTHERS reported in AIR 1981 SC 1021, at paragraph

No.4 as under:

"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".

18. It is also not in dispute that when the accused was with

the deceased, he has to explain how his wife died with burn injuries

as per Ex.P7, post-mortem report and he has not offered any

explanation. In the absence of any explanation, adverse inference

has to be drawn against the accused as contemplated under the

provisions of Section 106 of the Indian Evidence Act as held by the

Hon'ble Supreme Court in the case of Prahlad Vs. State Of

Rajasthan reported in (2019)14 SCC 438 at paragraph No.11, it

has held as under:

"11. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record.

There is every probability that the accused can be reformed and rehabilitated. In this context, the

observations made by this Court in the case of Bachan Singh v. State of Punjab (1980) 2 SCC 684. , is reproduced as follows:

"209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over- emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care

and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

19. On re-appreciation of the entire material on record both

oral and documentary, medical and scientific evidence, it clearly

depicts that the unfortunate incident occurred due to quarrel

between the accused and the deceased (husband and wife). When

the accused brought mutton and asked the deceased to prepare

mutton meals on 01.09.2011 when she was sleeping at 9.30 p.m.,

when she refused to prepare mutton meals, thereby the accused

lost his self-control and poured kerosene on the victim and set her

ablaze. Therefore, it is a clear case of sudden provocation of the

accused by the deceased. Thereby, it is a clear case, which falls

under the provisions of Exception I of Section 300 of IPC.

Thereby, the provisions of Section 304 Part I would attract and not

the provisions of Section 302 of IPC as has been held by the

learned Sessions Judge. Ignoring all these material facts, the

learned Sessions Judge has erroneously proceeded to convict the

accused under the provisions of Section 302 of IPC.

20. Apart from that, when the prosecution registered the

case in Crime No.126/2011 initially under Section 307 of IPC and

after the death, under the provisions of Section 302 and 498(A) of

IPC, after considering both oral and documentary evidence, the

learned Sessions Judge has recorded a finding of fact that the

prosecution has failed to prove beyond reasonable doubt since the

date of marriage, the accused subjected the deceased to cruelty,

both mentally and physically making unlawful demand of dowry,

thereby committed an offence under Section 498(A) of IPC.

Accordingly, the very impugned judgment acquitting the accused

under Section 498(A) of IPC, the said order passed by the Sessions

Court has reached finality as the prosecution has failed to prove

beyond reasonable doubt whether the deceased was subjected to

cruelty both mentally and physically for unlawful demand of dowry.

Once Section 498(A) of IPC is not proved, the fact remains is that,

how she died? It is the categorical statement made by the adjacent

owner of the deceased and accused that there was a quarrel

between the accused and the deceased and according to the

statement of the victim, Ex.P11, after her death, which became the

dying declaration is that when she refused to prepare non-

vegetarian meals, the accused got provoked and poured kerosene

on her and set her ablaze. The said statement is corroborated with

the evidence of PW-14, voluntary statement. Ofcourse, the

voluntary statement can be relied upon only for recovery as has

been done by the Investigating Officer recovering, MOs-1 to 6. The

fact remains is that the unfortunate incident occurred between the

parties when the quarrel took place and it was not intentional of the

husband to kill his wife after leading matrimonial life for more than

16 years that too having two children, the same has not been

considered by the learned Sessions Judge. Thereby, the Trial Court

is not justified in convicting the accused under the provisions of

Section 302 I.P.C. and the accused has made out a case to interfere

with the impugned judgment of conviction and to modify into lesser

punishment under Section 304 Part I of IPC.

21. For the reasons stated above, the points raised in the

present appeal is to be answered partly negative and partly

affirmative holding that the learned Sessions Judge is not justified

convicting the accused under the provisions of Section 302 of

I.P.C., imprisonment for life with fine of Rs.10,000/- and the

accused has made out a case to interfere with the life imprisonment

and to modify into lesser punishment under the provisions of

Section 304 Part I of I.P.C. Thereby, the accused is liable to be

convicted for a period of ten years with fine of Rs.20,000/- (Rupees

Twenty Thousand only).

22. In view of the above, we pass the following:

ORDER

i) The criminal appeal filed by the appellant-Abdulla

is allowed in part.

ii) The impugned judgment and order of conviction

and sentence passed by the Principal District and

Special Sessions Judge, Chikkaballapura C/c of I

Additional District and Sessions Judge,

Chikkamagaluru in S.C.No.41 of 2012 in

convicting the appellant/accused for the offence

punishable under Section 302 of IPC is modified.

iii) The appellant is convicted under the provisions of

Section 304 Part I of IPC with imprisonment for

ten years with fine amount of Rs.20,000/-

(Rupees Twenty Thousand only).

iv) The appellant is entitled for a set off under

Section 428 of Cr.P.C.

v) In view of the provisions of Section 357(3) of

Cr.P.C., out of the fine amount imposed, on

deposit, the fine amount shall be deposited in the

name of the son, Chandpasha, PW-10 in any

Nationalized Bank for a period of three years and

he is entitled to withdraw the accrued interest

periodically.

vi) Since the accused has already undergone the

punishment of ten years four months, which is

more than the punishment imposed by us, the Jail

Authorities are directed to set release the accused

forthwith on deposit of fine amount, if he is not

required in any other cases.

Sd/-

JUDGE

Sd/-

JUDGE

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