Swamy vs The State Of Karnataka
2022 Latest Caselaw 731 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF JANUARY, 2022

                         PRESENT

            THE HON'BLE MR. JUSTICE B VEERAPPA

                           AND

             THE HON'BLE MRS. JUSTICE M.G.UMA

           CRIMINAL APPEAL NO. 1919 OF 2017

BETWEEN:

SWAMY
S/O BASAVARAJU
AGED ABOUT 26 YEARS,
R/O MULLURU VILLAGE,
KOLLEGAL TALUK,
KOLLEGAL DISTRICT
(NOW IN J.C)

                                                 ...APPELLANT

(BY SRI.A.N.RADHA KRISHNA, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY KOLLEGAL RURAL POLICE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU - 560001.
                                            ...RESPONDENT
(BY SRI.K.NAGESHWARAPPA, HCGP)
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     THIS CRL.A IS FILED U/S.374(2) CR.P.C BY THE ADVOCATE
FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 26.10.2017 PASSED BY THE
ADDITIONAL       DISTRICT     AND      SESSIONS      JUDGE,
CHAMARAJANAGARA (SITTING AT KOLLEGALA) IN S.C.NO.48/2013
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
498(A) AND 304-I OF IPC.

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

                          JUDGMENT

The accused who is the husband of the deceased has

filed the present appeal against the impugned judgment of

conviction and order of sentence dated 26.10.2017 made in

S.C.No.48/2013 on the file of the learned Additional District

and Sessions Judge at Chamarajanagara (sitting at Kollegal)

convicting the accused for offences punishable under Section

498(A) to undergo simple imprisonment for a period of one

year and to pay a fine of Rs.25,000/-, in default to pay fine, to

undergo S.I. for three months and for offence punishable

under Section 304 Part-I IPC to undergo imprisonment for life.

2. It is the case of the prosecution that the deceased

Asha and accused were husband and wife; their marriage

took place about five years prior to the incident and from their

wedlock they have begotten two children. On 8.1.2013 at

about 9.00 p.m., the deceased Asha is alleged to have poured

kerosene in her matrimonial home with an intention to

threaten her husband since he was an alcoholic and was

harassing her physically and mentally and was not

discharging/conducting himself responsibly towards the family

i.e. his wife and children and used to spend all his earnings

from fruit vending business in consuming alcohol. It is further

alleged that on the date of the incident, when she had poured

kerosene to threaten the accused, the accused provoked her

to commit suicide and with an intention to eliminate her, he

brought a kerosene lamp (which was lit) close to her

body/clothes, even though he had the knowledge that she had

already poured kerosone on her body/clothes and since

kerosene being a petroleum product and highly inflammable

and if the lamp comes in contact with the deceased/clothes

she had worn would catch fire instantly and burn her. When

the fire caught the clothes of the victim and she started

screaming out of unbearable pain, the husband tried to put off

the fire. Her parents rushed to the spot and upon noticing her

severe condition, they immediately shifted her to Kollegala

Government Hospital for first aid and the doctors therein

referred her to K.R. Hospital, Mysuru for better treatment. On

9.1.2013, the Executive Magistrate(Tahsildar) recorded the

statement of the victim based on which Crime No.6/2013 was

registered against the accused for the offences punishable

under Section 498A and 306 IPC. The deceased died on

14.01.2013 in the hospital. Thereafter, charge sheet was filed

against the accused for the offences punishable under Section

498A and 304 of IPC. The jurisdictional Court committed the

matter to the Sessions Court. The learned Sessions Judge

framed the charge. The accused pleaded not guilty and

claimed to be tried.

3. In order to prove the case of the prosecution, it

examined P.Ws.1 to 15 and got marked Exs.P1 to 16 and

M.Os.1 to 3. The statement of the accused under Section 313

Cr.P.C. was recorded. However, the accused denied all the

incriminating evidences available against him and did not

adduce any defence evidence.

4. Based on the aforesaid pleadings, the learned

Sessions Judge framed the following points for consideration:

"1. Whether the prosecution has proved beyond all reasonable doubt that on 08.01.2013 at about 9.00 in the night, in Mullur Village, the accused being the husband of the deceased Asho ill-treated/harassed here physically and mentally (as usual and in this background) and thereby committed an offence punishable U/s. 498A IPC?

2. Whether the prosecution has proved beyond all reasonable doubt that on the same day, time and place, the accused in furtherance of the said ill-treatment\torture and act of cruelty, brought a kerosene lamp (lit) and provoked/instigated her to burn herself, having full knowledge that she had poured substantial quantity of kerosene so as to cause death or such bodily injuries that could cause death and in the process and with an intention to eliminate her, the accused brought the kerosene lamp so close to her body that her clothes )which was already tainted/wet with kerosene) came in contact and caught fire instantly and thereby, the accused was guilty of having committed an offence punishable U/s. 304 IPC?

3. What Order?"

5. Considering both the oral and documentary evidence,

the learned Sessions Judge has answered the points framed in

the affirmative holding that the prosecution has proved

beyond all reasonable doubt that on 8.1.2013 at about 9.00

p.m. in the night in the Mulluru village, the accused being the

husband of the deceased ill-treated, harassed the deceased

physically and mentally and thereby committed the offence

punishable under Section 498A IPC and further recorded a

finding that in furtherance of the said ill-treatment and act of

cruelty, the accused brought a kerosene lamp and

provoked/instigated the deceased to burn herself having full

knowledge that she had poured substantial quantity of

kerosene and caused her death and thereby the accused

committed the offence punishable under Section 304 of IPC.

Accordingly, the learned Sessions Judge has convicted the

accused for the offences punishable under Sections 498A to

undergo simple imprisonment for a period of one year and to

pay a fine of Rs.25,000/-, in default to pay fine, to undergo

S.I. for three months and for offence punishable under Section

304 Part-I IPC to undergo imprisonment for life.

Hence, the present appeal by the accused.

6. We have heard the learned counsel for the parties

to the lis.

7. Sri.A.N. Radhakrishna, learned counsel for the

accused contended with vehemence that the impugned

judgment of conviction and order of sentence passed by the

trial Court against the accused for the offences punishable

under Sections 498A and 304 Part-I IPC is erroneous and

contrary to the material on record and the same is liable to be

set aside. He would further contend that the trial Court failed

to note that the scribe, who recorded Ex.P1 the statement of

the deceased/dying declaration, has not been examined and it

is important to note that non-examination of the scribe is fatal

to the case of the prosecution. The trial Court further failed to

note that P.W.3 the father of the deceased has turned hostile

and has not supported the case of the prosecution. The trial

Court has failed to appreciate the case of the prosecution,

more particularly, the evidence of P.W.3 who has turned

hostile but only considered Exs.P1 and 4- the complaint and

dying declaration and erroneously convicted the accused for

the offences punishable under the Sections as aforesaid.

8. It is further contended that with regard to the

occurrence of the incident, there are two versions. According

to Ex.P1, the incident took place in the kitchen, on the

contrary, according to the other version, the incident took

place at the living area. In the absence of any proof, the

learned Sessions Judge was not justified in convicting the

accused. He would further contend that in Ex.P1 the deceased

has stated at Sl.No.13 that she herself has caused the burn

injuries and P.W.1-Manjula has admitted in the cross-

examination that Dr.Mohan-P.W.14 gave the fitness

certificate, when her staff went to the chambers of P.W.14.

There is absolutely no material to show the involvement of the

accused in the homicidal death of the deceased.

9. It is further contended that in the entire complaint-

Ex.P1, there is no allegation of any harassment or demand for

dowry to attract the ingredients of Section 498A. In the

absence of any material document to prove the involvement of

the accused, the trial Court is not justified in convicting the

accused. He would further contend that P.W.3-father, P.W.6-

sister, P.W.7-mother, P.Ws.8 to 10-neighbours have turned

hostile and have not supported the case of the prosecution.

Therefore, the learned Sessions Judge was not justified in

convicting the accused for imprisonment for life. The accused

being he husband had tried to extinguish the fire is admitted

by the deceased herself in Ex.P1 and the accused has already

undergone seven years imprisonment and is having two

children. Therefore, he submits that there is absolutely no

case made out against the accused and this is a fit case for

acquitting the accused.

10. Per contra, learned High Court Government Pleader

Sri.K. Nageshwarappa while justifying the impugned judgment

of conviction and order of sentence passed by the trial Court

contending that on the basis of Ex.P1, the case was registered

under Section 498A and based on the complaint Ex.P4 by the

father of the deceased Ex.P3, Section 306 IPC was included

and after the death of the deceased in the hospital, Section

304 Part I of I.P.C. was included. He has further contended

that when the victim poured kerosene, the accused should

have protected her instead of provoking her to commit suicide

which shows that with an intention to eliminate her

permanently he had brought a kerosene lamp close to her

body, even though he had knowledge that she had already

poured kerosene on her body. Therefore, the learned

Sessions Judge was justified in invoking Section 304 Part I of

IPC and accordingly, sought to dismiss the appeal.

11. In view of the aforesaid rival contentions urged by

the learned counsel for the parties, the only point that would

arise for consideration in the present appeal is:

"Whether the trial Court is justified in convicting the

accused for offences punishable under Sections 498A to

undergo simple imprisonment for a period of one year and to

pay a fine of Rs.25,000/-, in default to pay fine, to undergo

S.I. for three months and for offence punishable under Section

304 Part-I IPC to undergo imprisonment for life, in the facts

and circumstances of the case?"

12. It is not in dispute that based on the statement of

the deceased on 9.1.2013 the jurisdictional police at the

inception registered the case in Crime No.6/2013 under

Section 498A and based on the complaint Ex.P4 by the father

of the deceased Ex.P4, Section 306 IPC is included and after

the death of the deceased in the hospital and after

investigation, the charge sheet came to be filed under Section

304 Part I of IPC. On careful perusal of Ex.P1, the statement

of the deceased/dying declaration, it is clear that the

statement was made when she was conscious and at Sl.No.13

to the question as to who caused the injury, the answer is

"swathaha nane(myself) and the place where it happened, the

answer is "in the kitchen". She has further stated in the dying

declaration that she herself had poured kerosene on 8.1.2013

in order to teach a lesson to the accused and the accused had

brought the lamp and thereby she suddenly caught fire. When

she had caught fire, the accused-husband tried to extinguish

the fire and thereafter her father and mother brought her to

the hospital. By a careful reading of Ex.P1, it is clear that

there is no serious allegation of any harassment both physical

and mental or there was no demand for dowry by the accused.

It is also not in dispute that out of the wedlock of accused and

the deceased, two children were born and they had completed

five years of marriage on the date of the incident. The

complaint does not disclose any harassment prior to the

incident. Except stating that he was a drunkard and used to

spend all the money earned from the fruit vending business

and only to teach him a lesson she had acted like that and on

the date the incident occurred, absolutely, there is no material

to prove that the accused had any intention to eliminate the

deceased and none of the witnesses namely PW3-father, PW6-

sister, PW7-mother have whispered anything about the

harassment nor P.Ws.8 to 10 who are the neighbors have

whispered anything about the harassment or about

commission of the accused.

13. This Court being the appellate Court, it is relevant

to reconsider the entire evidence of the prosecution witnesses

and the documents relied upon:

(1) P.W.1 who recorded the statement of the injured as per

Ex.P1 supports the case of the prosecution.

(2) P.W.2-Nanjunda, Head Constable, Kollegal Rural police

station has given a request letter to the Tasildhar to record

the statement of the injured. Accordingly, he has given

request to the doctor to ascertain whether the injured was in a

fit condition to give the statement. The doctor received the

request and given the opinion that injured was fit to give

statement and he supports the case of the prosecution.

(3) P.W.3-father of the deceased who lodged the complaint

as per Ex.P4 and witness to the spot mahazar. He has

identified M.O.1-kerosene, M.O.2-lamp and M.O.3-burnt cloth

piece of the deceased, but has turned hostile.

(4) P.W.4-one of the panch witness to the mahazar Ex.P5

has not supported the case of the prosecution and has turned

hostile.

(5) P.W.5-Mahadevaswamy and P.W.6-Nagarathna, panch

witnesses to the spot mahazar as per Ex.P5 and inquest

panchanama as per Ex.P6 have not supported the case of the

prosecution and have turned hostile.

(6) P.W.7-Nagamma, wife of P.W.3 and mother of deceased,

whose statement was recorded under Section 161 of Cr.P.C.

as per Ex.P7 before the police has turned hostile.

(7) P.Ws.8 to 10 who are neighbors and whose statements

were recorded as per Exs.P8 to 10 before the police, also

turned hostile and not supported the case of the prosecution.

(8) P.W.11-Dr.Chandrashekara who conducted the post

mortem on 14.1.2013 submitted a report as per Ex.P9 and

opined that the burn injuries are about 75 to 80%. He has

supported the case of the prosecution.

(9) P.W.12-Police Constable who carried the articles M.Os.1

to 3 to the F.S.L. and has supported the case of the

prosecution.

(10) P.W.13-PSI and Investigating Officer based on the MLC

intimation brought by the constable registered

Crl.Misc.No.14/2013 on 18.1.2013 and instructed the ASI to

go to the Tahsildar and record the statement of the injured in

K.R. Hospital. Conducted the investigation and filed the

charge sheet and has supported the case of the prosecution.

(11) P.W.14-Dr.Mohan, who gave first aid on 9.1.2013 to the

deceased to the deceased with the burn injuries and has

admitted that the deceased informed him that when she

attempted to commit suicide, she sustained the burn injuries

and has supported the case of the prosecution. The doctor

has recorded the statement and given the certificate that

accused was in a fit state of mind to give the statement.

(12) P.W.15-Incharge Additional Tahsildar who had conducted

the inquest over the dead body on 14.1.2013 as per Ex.P6 and

has supported the case of the prosecution.

Based on the aforesaid oral and documentary evidence on

record, the learned Sessions Judge has proceeded to convict

the accused.

14. It is the specific case of the prosecution that based

on Ex.P1-statement of the victim, which subsequently

considered as the dying declaration, that on 8.1.2013 at about

9.00 p.m. the deceased herself poured kerosene in her

matrimonial home, only to threaten her husband, since he was

not discharging his duties to the family properly and he was in

the habit of consuming alcohol every day and he was

neglecting both the deceased and their children. The accused

provoked her to commit suicide with an intention to eliminate

her and brought the kerosene lamp close to her body and as

she had already poured kerosene on her body, she caught fire

instantly. When she started screaming, her husband tried to

extinguish the fire and thereafter she was brought to the

hospital. The entire averments made therein clearly depicts

that her statement was recorded by P.W.14-Doctor when she

was in the fit state of mind. She has specifically stated in her

statement as per Ex.P1 that the incident occurred in their

house because of her own acts and when the statement was

recorded she was conscious. She has further stated that she

has done the said act to teach a lesson to her husband. When

she was in the midst of the fire, her husband tried to

extinguish the fire. Absolutely, there is no material to prove

that he had any intention to cause the death and nor he was

harassing her physically, mentally so as to attract the

provisions of Section 498A and 304 Part I of IPC. The

prosecution witnesses namely P.W.3-father, P.W.6-sister,

P.W.7-mother, P.Ws.8 to 10-neighbours have not whispered

anything against the accused to attract the provisions of

Section 498A and 304 Part I IPC. Though P.W.3 filed

additional complaint as per Ex.P4 reiterating the statement

made by his daughter as per Ex.P1 he has not whispered

anything about the harassment or cruelty meted out by the

accused to his daughter nor any intention to cause the death

of the deceased. These materials have not been considered

by the learned Sessions Judge while convicting the accused for

offences punishable under Section 498A and 304 Part I of IPC.

15. On meticulous reading of the documents as per

Ex.P1 and Ex.P4, it is clear that none of these documents or

the evidence of the prosecution witnesses disclose the

involvement of the accused, either physical or mental

harassment or intention to eliminate the deceased. The

material on record clearly depicts that it is the accidental fire

which is self made by the deceased as admitted by her in the

dying declaration at Sl.No.13 as already stated supra. In the

absence of any evidence to prove the involvement of the

accused to cause the homicidal death, the learned Sessions

Judge is not justified in convicting the accused.

16. The evidence on record as per Ex.P9 clearly discloses

that the incident occurred because of self-immolation, only to

teach a lesson to the husband of the deceased. It is also

stated by P.W.14-doctor in the examination-in-chief that she

sustained about 75 to 80% burn injuries and the same

occurred when she tried to commit suicide and the same was

informed to him. Nothing has been placed before the court to

prove that it was at the instance of the accused. It is also not

in dispute that though the incident occurred on 8.1.2013, the

statement of the deceased was recorded only on 9.1.2013 and

she died in the hospital on 14.1.2013, which do not

probabalise that there is any involvement of the accused. It is

also not in dispute that accused has been in jail for more than

seven years. The entire materials on record clearly indicate

that the prosecution has not proved the charge made against

the accused beyond reasonable doubt. None of the witnesses

nor the material documents depict about the involvement of

the accused in the homicidal death of the deceased. The

learned Sessions Judge has erred in recording the finding that

the fact that the victim poured kerosene in his presence was

just a triggering point for the accused to achieve his

objective/his intention to eliminate her permanently and

hence, it is a fit case to invoke provisions of Section 304 Part I

IPC wherein the accused had both knowledge and intention to

eliminate her permanently. This finding is perverse and

without any basis. Neither Ex.P1-dying declaration, Ex.P4

Complaint of the father nor any of the prosecution witnesses

have whispered about the intention of the accused thereby the

very finding recorded by the learned Sessions Judge to invoke

the provisions of Section 304 Part I IPC is without any basis

and cannot be sustained.

17. For the reasons stated supra, the point that arises

for consideration in the present appeal has to be answered in

the negative holding that the learned Sessions Judge is not

justified in convicting the accused for the offences punishable

under Sections 498A and 304 Part I of IPC in the absence of

any evidence on record. The impugned judgment of

conviction and order of sentence passed by the learned

Sessions Judge is liable to be set aside.

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

ORDER

(i) The criminal appeal filed by the accused is hereby allowed.

(ii) The impugned judgment of conviction and order of sentence passed by the trial Court dated 26.10.2017 made in S.C.No.48/2013 convicting the accused for offences punishable under Section 498(A) of IPC to undergo simple imprisonment for a period of one year and to pay a fine of Rs.25,000/-, in default to pay fine, to undergo S.I. for three

months and for offence punishable under Section 304 Part-I IPC to undergo imprisonment for life, is hereby set aside.

(iii) The accused is hereby acquitted for the offences punishable under Sections 498A and 304 Part I of IPC.

(iv) The jurisdictional Jail Authorities are hereby directed to release the accused forthwith, if he is not required in any other case.

(v) The bail bonds, if any, executed by the accused stand cancelled.

(vi) The fine amount deposited by the accused (if any) shall be refunded to the accused forthwith.

(vii) Registry is directed to send back the trial court records to the trial court with a copy of the judgment.

Sd/-

JUDGE

Sd/-

JUDGE

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